PLJ 2022 Lahore 744
Family Court Act, 1964 (XXXV of 1964)--
----S. 17-A--Muslim Family Law Ordinance, (VIII of 1961), Ss. 8 & 9--Maintenance allowance of minor--Suit for dissolution of marriage--Decreed--Appeal--Accepted Conditionally--Non-payment of maintenance allowance--Right to defend suit was struck-off--Financial position--Determined liability--Petitioner failed to abide by terms of judgment passed by appellate Court, trial Court as also appellate Court in second round, rightly found against petitioner and both judgments are, unexceptionable--Petitioner has not appended any document with this petition that he was incapacitated to deposit outstanding liability in question--Appeal of petitioner on condition of payment of outstanding interim--It is evident from petitioner’s bank statement that each month an amount in excess of Rs. 1,30,000/- is deposited in his account by way of salary, a huge amount of money was deposited in his bank account between 26.4.2021 to 31.12.2021 from different sources and it is not as if petitioner is a pauper or not in a comfortable financial position to look after and provide sustenance to his own daughters--The petitioner did not intend to pay outstanding maintenance but merely agreed to pay same to get judgment & decree dated 07.02.2022 reversed and only prolong litigation--Petitioner is not acquainted with age-old saying “no other love in world is like that of love of a father for his girl”--Moreover, “and clothing and maintenance must be borne by father in a fair manner’ (Al-Baqarah, 233). [Pp. 748, 749, 751 & 753] A, B, D, G & H
Family Court Act, 1964 (XXXV of 1964)--
----S. 17-A--Fail to pay interim maintenance allowance-- Section 17(A) of West Pakistan Family Courts Act, 1964 provides that a family Court shall decree suit for maintenance straightaway if a defendant fails to pay interim maintenance so fixed. [P. 749] C
Family Court Act, 1964 (XXXV of 1964)--
----S. 17-A--Discretion and obligation--The discretion bestowed on Family Courts was converted into an obligation and use of word “shall" repeatedly reflecting in current statutory provision leaves no room for Family Courts to either not fix interim maintenance allowance or to allow any defendant to continue defending suit without first making payment of interim maintenance. [P. 751] E
Family Court Act, 1964 (XXXV of 1964)--
----S. 17-A--Right of defend suit--Section 17-A makes right of any defendant to defend suit against him, otherwise guaranteed to him, conditional upon his payment of interim maintenance already fixed by Court. [P. 752] F
Mr. Shahzad Saleem Khawaja, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing 5.7.2022.
PLJ 2022 Lahore 744
Present: Muhammad Shan Gul, J.
MUHAMMAD NAVEED AKHTAR--Petitioner
versus
Mst. GHAZALA BATOOL, etc.--Respondents
W.P. No. 43023 of 2022, heard on 5.7.2022.
Judgment
Through this judgment the titled constitutional petition is sought to be decided.
2. The petitioner has laid challenge to a judgment and decree dated 26.4.2022 passed by a learned Judge Family Court whereby his right to defend the suit filed by Respondent No. 1 has been struck-off and the suit of Respondent No. 1, only to the extent of recovery of maintenance, has been decreed. Likewise, a challenge has also been laid to a judgment and decree dated 22.6.2022 whereby an appeal filed by the petitioner against the judgment and decree dated 26.4.2022 has been dismissed as well.
3. Facts in a nub are that a suit for recovery of maintenance allowance and dissolution of marriage was filed by Respondent No. 1 Ghazala Batool against the petitioner. Maintenance allowance for minors Ayesha and Fajar Fatima i.e. Respondents No. 2 and 3 in the present petition was also prayed for.
4. The petitioner submitted a written statement. However, the suit filed by Respondent No. 1 to the extent of dissolution of marriage was decreed on 06.12.2021 and marriage was dissolved on the basis of Khula. Interim maintenance allowance of minors i.e. Respondents No. 2 and 3 was fixed @ Rs. 10,000/- per month per head from the date of institution of suit.
5. The petitioner failed to adhere to the payment schedule and, therefore, his right to defend the suit was struck-off under Section 17(A) of the West Pakistan Family Courts Act, 1964 vide order dated 07.2.2022 and he was ordered to pay maintenance allowance to his minor daughters @ Rs. 20,000/- per month per head from the date of institution of suit till their legal entitlement. The petitioner was, likewise, saddled with the responsibility to pay Rs. 50,000/- to Respondent No. 1 on account of dues of maintenance for the period of Iddat only.
6. This was brought under challenge by the petitioner by means of an appeal and on 25.3.2022 a learned Addl. District Judge, Pir Mahal accepted the appeal and ordered for the payment of entire outstanding interim maintenance allowance within a period of one month. The petitioner again failed to cough up the payment of maintenance allowance and the trial Court was left with no choice, since it was bound by the order passed by the appellate Court, and again the right of the petitioner to defend the suit was struck-off on 26.4.2022 and suit of the respondents to the extent of recovery of maintenance allowance was decreed in terms of earlier judgment and decree dated 07.2.2022.
7. This prompted the petitioner to approach the appellate Court again and the petitioner filed an appeal which was dismissed on 22.6.2022 and against which the petitioner has now approached this Court.
8. It was held by the appellate Court in its judgment dated 22.6.2022 that the petitioner could not make payment of outstanding maintenance allowance despite having been given adequate opportunity by the appellate Court in the first round. It was also highlighted during the course of proceedings in appeal that the petitioner was contumaciously trying to avoid the payment of interim maintenance allowance because even in the proceedings initiated for execution of the decree he did not appear voluntarily when he was summoned by ordinary means and rather his appearance before the executing Court was only brought about by means of arrest. So much for the willingness of the petitioner to abide by the decree!
9. Learned counsel for the petitioner submits that the judgments and decrees under challenge are harsh, disproportionate and unfair because the petitioner's right to defend the suit has been struck-off in an unfair manner.
10. Heard. Record perused.
11. In the first round of litigation the petitioner failed to provide interim maintenance allowance to the minors as also to his former wife and his right to defend the suit for maintenance (only) was struck-off on 07.2.2022 by a learned Judge Family Court under Section 17(A) of the West Pakistan Family Courts Act, 1964 and he was directed to pay Rs. 20,000/- per month per head to the minors till their legal entitlement as also pay Rs. 50,000/- in lump sum only for Iddat period to his former wife as maintenance. This prompted the petitioner to file an appeal which was accepted on 25.3.2022. Order dated 25.3.2022 reads as follows:
“Consequently, the same is hereby set-aside however subject to clearance of all outstanding interim maintenance as fixed by the trial Court on 06.12.2021, within one month of the date of this order, failing which the trial Court may again strike out the defence of the defendant/present appellant.”
12. From a perusal of the order-sheet of the trial Court appended with this petition it is clear that in the second round the matter was initially fixed for hearing on 09.4.2022 and on which date counsel for both parties were present and in their presence the next date i.e. 26.4.2022 was fixed for the purpose of provision of outstanding dues of maintenance and since the one month time period fixed by the lower appellate Court expired on the said date i.e. 26.4.2022. However, surprisingly, on 26.4.2022 no one appeared on behalf of the petitioner and hence there was no deposit of the outstanding maintenance allowance amount and which meant that the order passed by the appellate Court and on which the petitioner based his case was flouted with impunity. Hence on 26.4.2022, on account of the contumacious non-cooperative conduct of the petitioner, his right to defend the suit was struck-off again and the suit of the respondents only to the extent of maintenance was decreed in terms of earlier judgment and decree dated 07.2.2022 and the petitioner was directed to pay the outstanding maintenance allowance as decreed.
13. It is indeed interesting to note that the trial Court had the benefit of having before it the bank statement of the petitioner which showed his salary to be around Rs. 1,30,000/- per month which was being deposited in his account regularly each month. That, likewise, a huge amount of money i.e. Rs. 78,34,000/- was also credited into the account of the petitioner from 26.4.2021 to 31.12.2021 and which clearly revealed that the petitioner is a man of means and in a comfortable financial position to provide sustenance to his own daughters. Therefore, it is not as if the trial Court has shot in the dark and it is only after being convinced about the comfortable financial position and worth of the petitioner that the trial Court fixed the amount of maintenance as Rs. 20,000/- per month per head for two minor daughters of the petitioner.
14. It is also obvious that on 26.4.2022 i.e. date fixed by the trial Court (since the one month period expired on the said date) no one appeared and hence no deposit of outstanding liability of maintenance was made and, therefore, the defence of the petitioner was rightly struck-off. Since the judgment of the appellate Court dated 25.3.2022 in the first round provided a foothold to the petitioner to go back to the trial Court and defend the suit and mandated him to deposit the outstanding dues within one month and since this part of the judgment was of the essence and since the petitioner failed to abide by it he cannot be allowed to approbate and reprobate and at the same time, Court and rely on one portion of the judgment and resile from and ignore, another portion of the same judgment.
17. The lame pretext urged by the counsel for the petitioner about the mother of the petitioner being unwell is of little significance because even if the mother of the petitioner was unwell on 26.4.2022, the petitioner had to arrange for payment of monies prior to that date and ought not have waited for the last date in this respect. Even otherwise, the petitioner was not indisposed or incapacitated himself and there were many avenues available to him for arranging and depositing the payment in question. The appellate Court has rightly noted that no record whatsoever was even sought to be produced before the appellate Court establishing such serious ailment of the mother of the petitioner which could support the incapacity of the petitioner in depositing the amount of monies that he was so ordered to deposit.
20. The learned Appellate Court vide judgment dated 25.03.2022 only allowed the appeal of the petitioner on the condition of payment of outstanding interim maintenance already fixed by the trial Court, which even otherwise, was his determined liability. The petitioner did not challenge the condition imposed by the Appellate Court and his case ought to fail merely for the reason that his default in complying with the condition imposed by the learned Appellate Court revived the judgment and decree dated 07.02.2022.
21. In “Rai Muhammad Riaz (decd) through L.Rs. and others v. Ejaz Ahmed and others” (PLD 2021 Supreme Court 761), it has been held as follows:
“10. As noted above, in the first instance, the suit of the petitioners was dismissed for non-prosecution on 28.01.2014 and was conditionally restored vide order dated 19.01.2016 on the basis of a conceding statement of the Respondents. However, such restoration was conditional upon payment of costs which were admittedly never paid by the petitioners. Further, at no stage was any application moved seeking extension of time for payment of costs. Strictly speaking and on the basis of principles of law laid down by this Court in Muhammad Arshad & Co v. Zila Council (2006 SCMR 1450), it is settled law that where revival of the suit is based upon a conditional order and such condition is not fulfilled by the Applicant, for all intents and purposes the suit does not get restored.”
22. In “Ghani-ur-Rehman v. National Accountability Bureau and others” (2015 C L C 1144), it has been held as follows:-
“11. After having held such view, the Learned Single Judge granted the conditional leave to the appellant to defend his claim against which order he filed a petition for review, however, it appears that he did not press it subsequently and resultantly the same was disposed of on 17-5-2004. The same order has attained finality having never been challenged by the appellant. By conducting himself in such a way, the appellant agreed to defend the suit conditionally and was estopped from raising the same plea subsequently without first fulfilling the condition subject to which he was granted leave to defend the suit. The failure of the appellant to comply the order had left no option with the Court but to decree the suit. ..”
Rs. 1,30,000/- is deposited in his account by way of salary, a huge amount of money (nearly Rs. 80,00,000/-) was deposited in his bank account between 26.4.2021 to 31.12.2021 from different sources and it is not as if the petitioner is a pauper or not in a comfortable financial position to look after and provide sustenance to his own daughters. A paltry amount of Rs. 650/- per day per head is neither exorbitant nor fantastic in the present day world where massive price hike, sky- rocketing inflation and steep increase in prices of everyday goods have resulted in the cost of living increasing manifold.
24. It is also pertinent to highlight here that considering the hardships faced by mothers and children in getting their legal as well as religious share of maintenance, while awaiting final adjudication, Section 17-A was inserted through Family Courts (Amendment) Ordinance 2002 (LV of 2002). In its original form, the said Section 17-A empowered the Family Court to strike off the defence of the defendant and read as under:
“17A. Interim order for maintenance.--At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, where under the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit.”
“S. 17-A. Suit for maintenance.--(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case”.
25. This Court in “Muhammad Sajid v. Judge Family Court and others” (2020 CLC 1524) has already held that the word “shall” sufficiently clarifies the legislative intent and since an adverse consequence is expressly provided for defiance of an order of payment of interim maintenance, such consequence would mandatorily follow.
7. The use of the word "shall" in the amended Section
17-A of the Act whereby the word "may" has been replaced, clarifies the intention of the legislation that in case of non-compliance of order for payment of interim maintenance allowance within time fixed by the law, not only the defence is to be struck off but as a consequence thereof, the suit is to be decreed; therefore, the said provision is to be treated as mandatory in nature on the basis of the principles laid down in The Collector of Sales Tax, Gujranwala v. Super Asia Muhammad Din & Sons (2017 SCMR 1427), of course, subject to certain exceptions to be decided on case to case basis, whereas no such exception has been pointed out by the petitioner.”
27. In “Talha Asif Taufiq v VTH Additional District Judge and 3 others” (2016 MLD 742), it has been held as follows:
“8. It may also be appreciated that from the bare reading of Section 17-A of the Act, 1964, it is manifestly clear that the right of further adjudication of the defendant is contingent subject to fulfillment of contingency of Section 17-A of the Act, in other words if the defendant desires to contest the family suit, he is required to comply with the interim order passed by the Family Court pursuant to Section 17-A of the Family Courts Act.
9. From the above discussion, it appears that the Family Court can pass an order for payment of interim maintenance during the pendency of the suit and failure to comply with such order, can take necessary steps for penal action of closing the right of defence. The conduct of the petitioner is very much relevant in this case that since 18.12.2007 when the interim order was passed, not a single penny was deposited by him in compliance of the orders of the family Court till 04.7.2009 when his right of defence was closed.”
29. In “Muhammad Tariq and 6 others v. The State and another” (2020 P.Cr.LJ 1315), it has been held as follows:
“6. The concept of fair trial is central to the administration of justice. The right to cross-examine witnesses is a component of the right to a fair trial and is considered to be "the greatest legal engine ever invented for the discovery of truth ……
14. Admittedly, there is no provision in the Criminal Procedure Code, 1898, which specifically empowers the trial Court to guillotine the accused's right of cross-examination. However, this does not mean that he can abuse the process of law with impunity and take the Court hostage.”
31. Seen from whatever angle the petition in question merits to be dismissed since judgments under challenge are unexceptionable, therefore, this petition is dismissed.
(J.K.) Petition dismissed
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