خرچہ ناں و نفقہ میں سالانہ اضافہ کب سے لاگو ھو گا

2022 LHC 6063

The legal question involved for determination in this case relates to whether 10% annual increase in maintenance allowance is to be effective from the date of passing of the decree that attained finality or from the date of institution of the suit. Examination of the impugned order/judgment of the Courts below reveals that the learned Courts have not kept the aim, object and scope of the Family Courts Act, 1964 in mind while interpreting the judgment and decree dated 25.11.2010 and have reached to a misconceived conclusion that it will be safe to allow the annual increase from the date of decree instead of the date of institution of the suit. It is pertinent to observe that any ambiguity in the decree as to grant of annual increase from the date of institution or from the date of decree would be so construed as to be not incongruous to the object and purpose of law which is a beneficial legislation and in this manner, the instant case exhibits a fortiori situation inasmuch as when the Act 1964 itself, being beneficial legislation, cannot be construed and interpreted in a manner detrimental to the minor or female, the judgment and decree passed under such law cannot be so interpreted.

Perusal of the pre-amendment provision brings forth that the legislature had not provided the annual increase; however, the Courts used to award and grant annual increase in the maintenance on their own, keeping in view facts of each case. The jurisprudence so developed was given a legislative form by the legislature through the above reproduced amendment. Perusal of Section 17A, as it stands after the amendment, reveals that in a suit for maintenance, the Court can transcend the legal and procedural limitation of civil law of being confined to the relief sought as sub-section (2)(a) thereof provides that the Family Court is vested with the power to fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances. Such a statutory layout of the said provision is to be put parallel to the beneficial nature of the Act, 1964, which propels to the conclusion that section 17A is also beneficial in nature conferring financial protection to the female and minors. It is further seen from Section 17A that the Court can grant maintenance higher than what has been prayed for in the plaint on the basis of afflux of time or for other circumstances. Similarly, Section 17A(2)(b) of the Act, 1964 obligates upon the Court to prescribe the rate of annual increase and sub-section (3) of Section 17A spells out that where the Court does not prescribe any rate of increase, the annual increase of 10% would be read into the decree. However, on the basis of facts and circumstances of each case, the discretion of the Court to award more than 10% annual increase remains protected. Similarly, it is important to note that the legislature has vested the Family Court with the power to consider the afflux of time and such other circumstances while granting maintenance in the decree of maintenance. Considered from this perspective, the suit for maintenance was filed by petitioner No.1 (mother of the petitioners), in the year 2004 and decree passed attained finality in the year 2010, which show a lapse of almost six years in between the date of institution and the date of decree. Therefore, if the plea of the respondent (father) as to grant of annual increase from the date of decree is allowed, this would not only frustrate the object of the law but would also put premium in the hands of a defendant. The respondent in the instant case was to protract the suit for maintenance being concluded in order to avert the annual increase, which has been now given statutory recognition under Section 17A. Such an interpretation would be contrary and repugnant to the object and purpose of the law. Thus, it would be against the interest and welfare of the minor to grant annual increase from the date of decree particularly in cases like the one at hand where there is a gap of almost 6 years in the date of institution of the suit and date of final decree passed therein.

Petitioners are held entitled to 10% annual increase in the maintenance amount awarded to them under the judgment and decree dated 25.11.2010 till their legal entitlement and the effective date shall be from the date of institution of the suit and not the date of the decree.

Family
23991/17
Mah Noor Azhar Vs Muhammad Sohail Khan etc
Mr. Justice Anwaar Hussain
24-06-2022
2022 LHC 6063