جب فیملی کورٹ جواب دعوی کا حق کلوز کرتی ھے تو اس پر معزز عدالت عالیہ کے کیا فرمودات ھیں ملاحظہ فرمائیں

Right of Defense Struck of by Family Court.

2012 CLC 1361

Ss. 17A, 11, 9 & 5---Constitution of Pakistan, Arts.199 & 10A---Constitutional petition---Suit for recovery of maintenance allowance and dower---Family Court had struck off the right of the husband (petitioner) to file written statement and cross-examine witnesses of the wife---Contention of the husband was that on account of his failure to file a written statement, the Family Court could not deny him the right to cross-examine the witnesses of the wife---Validity---Family Court had struck off the husband's right to file written statement which was contrary to the provisions of the West Pakistan Family Courts Act, 1964---No provision for striking off the right to file written statement existed in the Act---Statutory right to strike off the defence of the defendant was only available under S.17-A of the Act, which was for interim maintenance---If the husband failed to file a written statement in accordance with the order of the Family Court, the Family Court may strike off his defence; and the case would then proceed in evidence and in terms of S.11 of the Act, the wife would lead evidence----At the time of recording evidence, the husband who had not filed his written statement, had a right to cross-examine the wife's witnesses---Such right was a valuable right and was prescribed in S.11(3) of the West Pakistan Family Courts Act, 1964---Family Court, in the present case, could strike off husband's right to file a written statement, right of defence, but could not close his right to cross-examine the witnesses of the wife---Denial of said right would render the procedure adopted by the Family Court as unfair and against the right to a fair trial---High Court set aside impugned orders, remanded the case to Family Court with the direction to provide one more opportunity to the husband to file written statement and produce evidence---Constitutional petition was allowed, in circumstances.

2017 CLC 22

Right of Written Statement or Defence can be struck down by the Family Court in spite of Specific Provision in this regard in Family Courts Act because the Family Court cannot remain helpless if the defendant fails to file written statement within the time provided by the court.

2012 CLC 1361

Right of cross examine to a defendant who failed in filing written statement can not be denied.

2010 CLC 797

Family court cannot sit as spectator if the defendant fails to file written statement. The family court can exercise its exclusive jurisdiction under the law in such eventuality.

2006 MLD 1128

The act of the petitioner was contemptuous who did not file the written statement in spite of the fact that ex parte proceedings was set aside against him. Writ Petition was dismissed.

2005 CLD 1049

No appeal against interlocutory order of Family Court.

2005 YLR 1550

2009 MLD 1042

The order of closing of right of written statement by a Family court in a suit for recovery of maintenance or dowry articles cannot be challenged in a writ petition being interlocutory order. The petitioner can file appeal against the final judgment because appeal has wider scope than writ jurisdiction.

2017 YLR 622

Family court can regularize its proceedings on the general principles of law.

Interim maintenance --- Father failing to comply with order for payment of maintenance to the minors ---

2024 SCMR 1292

Interim maintenance --- Father failing to comply with order for payment of maintenance to the minors --- Contumacious conduct --- Costs , imposition of --- Family Court , in accordance with Section 17-A of the Family Courts Act , 1964 , had the lawful authority to strike off the defence of the petitioner ( father ) and decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case , once the petitioner failed to pay the interim maintenance allowance by fourteenth day of each month during the pendency of proceedings --- Petitioner was also put to notice by the Family Court to clear the arrears of interim maintenance allowance otherwise the provisions of Section 17-A of the Act would be invoked , which the petitioner failed to comply with -- Moreover , the determination of the amount of maintenance by the Family Court was neither arbitrary nor capricious --- Hence , the High Court had rightly declined to interfere with the findings of the Family Court with regard to the quantum of maintenance allowance --- In view of the callous disregard of the petitioner for the court order to pay interim maintenance and his attempts to delay the payment of decreed maintenance allowance for his minor children , the Supreme Court imposed costs on the petitioner in the sum of Rs . 1,00,000 / - ( Rupees one hundred thousand only ) to deter such conduct in the future with the direction that the costs shall be recovered by the executing court as part of the decree for maintenance ---

C.P.L.A.3155-L/2023 Shahzad Amir Farid v. Mst. Sobia Amir Farid

Custody of minors , issue of --- Interim orders passed by Guardian Court and upheld by the High Court challenged before the Supreme Court -- Maintainability --- Application of the.........

2024 SCMR 1295

Custody of minors , issue of --- Interim orders passed by Guardian Court and upheld by the High Court challenged before the Supreme Court -- Maintainability --- Application of the petitioner ( father ) under section 25 of the Guardians and Wards Act , 1890 for permanent custody of minors was still pending decision before the Guardian Judge --- Orders of the Courts below assailed by the petitioner in the instant petitions were interim in nature --- Ordinarily interim orders passed by the High Court are not interfered with by the Supreme Court under Article 185 ( 3 ) of the Constitution and such intervention is warranted only in exceptional circumstances involving flagrant violation of law , wrongful exercise of jurisdiction or manifest grave injustice --- All the present petitions arising out of interim orders passed by the Courts below were , thus , not maintainable --- Moreover , the impugned interim orders passed by the Courts below were in accordance with law and had not caused any injustice to the petitioner or prejudice to the application of the petitioner for permanent custody of minors which was pending decision before the Guardian Judge --

C.P.L.A.1708-L/2022

Khawaja Adnan Zafar v. Hina Bashir, etc

Ss. 249-A/435/439-A--Second marriage without permission--Application for acquittal--Accepted--Criminal revision--Allegation of--The application was..........

PLJ 2024 Lahore 362

Present: Muhammad Tariq Nadeem, J.

HAJRA JAVAID MAKHDOOM--Petitioner

versus

MUHAMMAD TEHMAS NASIR, etc.--Respondents

W.P. No. 59534 of 2022, decided on 19.12.2023.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 6(5)--Constitution of Pakistan, 1973, Art. 199--Criminal Procedure Code, (V of 1898), Ss. 249-A/435/439-A--Second marriage without permission--Application for acquittal--Accepted--Criminal revision--Allegation of--The application was accepted by Magistrate--The petitioner filed a criminal revision before Court of Sessions Judge which was dismissed--Respondent No. 1 was acquitted mainly on the ground that he had already divorced petitioner before contracting second marriage--Appeal was filed on question of law and facts whereas in criminal revision only correctness, legality and propriety of any finding, sentence or order is to be seen--There was no illegality or perversity in order--Petition was dismissed.

[Pp. 363, 364, 366 & 367] A, B, C, E, G

2005 SCMR 1544 ref.

Constitution of Pakistan, 1973--

----Art. 199--Section 417(2) Cr.P.C--Appeal against acquittal--When statute has provided a specific alternate remedy of appeal against acquittal, constitutional petition is not competent. [P. 366] D

Criminal Procedure Code, 1898 (V of 1898)--

----S. 417/435/439/439-A--A criminal revision is not competent against the order of acquittal, because, it is prohibited according to Section 439(4)(a) Cr.P.C. [P. 366] F

Dr. Khalid Ranjha, Advocate for Petitioner.

Date of hearing: 19.12.2023.

Order

Through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has voiced his grievance as under:-

“In view of the above circumstances, it is most respectfully prayed that the above titled writ petition may kindly be allowed and the case be referred back to learned magistrate for retrial and there after for criminal revision before learned ASJ.

Any other adequate relief which this Honorable Court deems fit just and proper may also be awarded to the petitioner in order to meet the ends of justice.”

2. Tersely, the facts of the case are that the petitioner had instituted a private complaint under Section 6(5) of the Muslim Family Laws Ordinance, 1961, before the learned Judicial Magistrate, Sargodha, against Respondent No. 1 with the allegation that he had contracted second marriage without her permission and, thus, committed an offence. After recording cursory evidence, learned Judicial Magistrate, Sargodha, summoned Respondent No. 1 to face the trial in terms of Section 6(5) of the Ordinance ibid. Respondent No. 1 joined the proceedings of the case and during the pendency of said proceedings, he filed an application under Section 249-A, Cr.P.C. with the assertion that the allegation of contracting second marriage without the permission of petitioner was totally against the facts and the private complaint had been filed by petitioner just to blackmail him. In fact, he had already divorced the petitioner which was effected on 06.07.2021 and thereafter he contracted second marriage. It was further asserted by the petitioner that there was no probability of his conviction in the private complaint, for the reason, he may be acquitted of the charge under Section 249-A, Cr.P.C. This application was accepted by learned Magistrate Section-30, Sargodha, vide order dated 18.05.2022. Aggrieved by the above-mentioned order, the petitioner filed a criminal revision under Section 439-A, Cr.P.C. before the Court of learned Sessions Judge, Sargodha, which was entrusted to the Court of learned Additional Sessions Judge, Sargodha, who, after hearing the learned counsel for the petitioner as well as learned Assistant District Public Prosecutor, dismissed the same vide order dated 16.07.2022. The petitioner has challenged both the orders of learned fora below through the instant writ petition with the prayer that the case may be referred back to learned Judicial Magistrate for re-trial and criminal revision may also be remanded back to learned Additional Sessions Judge.

3. It is inter alia contended by learned counsel for the petitioner that against the order of acquittal under Section 249-A, Cr.P.C. a criminal revision in terms of Section 439-A, Cr.P.C. was competent, because, acquittal order had not been passed on merits. Learned counsel for the petitioner has placed reliance upon the case-law titled as “The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman” (2005 SCMR 1544).

4. I have heard the learned counsel for the petitioner at length on the above short point and also gone through the documents appended with this petition.

5. Although petitioner has not challenged any specific order in the prayer clause as well as in the caption of instant writ petition yet he has prayed for the remand of case to the trial Court as well as criminal revision to the Court of Additional Sessions Judge. I am afraid that the prayer of the petitioner is misconceived, because, matter cannot be referred back to both the fora below at the same time. Even otherwise, supplication of the petitioner is without the backing of law. After going through the documents available with the file, I have noticed that the petitioner had filed a private complaint under Section 6(5) of the Muslim Family Laws Ordinance, 1961, against Respondent No. 1, wherein Respondent No. 1 filed an application under Section 249-A, Cr.P.C. which was accepted by the trial Court vide order dated 18.05.2022 whereby Respondent No. 1 was acquitted mainly on the ground that he had already divorced the petitioner before contracting second marriage. Being aggrieved, the petitioner filed criminal revision against the acquittal of Respondent No. 1, which was dismissed by Additional Sessions Judge, Sargodha, vide order dated 16.07.2022 with the following observations:-

“3. According to assistance of learned counsel for the petitioner, learned ADPP, and record reveals that through impugned order learned lower Court acquitted the Respondent No. 2, u/S. 249-A Cr.P.C, and present petitioner challenged the acquittal of Respondent No. 2, through instant revision petition. Order of acquittal u/S. 249-A Cr.P.C, not amenable to revision in view of remedy available to the petitioner u/S. 417 (2) Cr.P.C. Sub-Section 5 of Section 439-A Cr.P.C, clearly provide that where in a Court an appeal lies and no appeal is brought, not proceeded by way of revision shall be entertain at the instance of petitioner who could have appealed. Learned ADPP also added that instant revision is not proceedable. Hence, instant revision petition is accordingly dismissed. The certified copy of this order be sent to the learned Lower Court for information. The file of this revision petition be consigned to record room after its due completion.”

6. The question, whether the order of acquittal under Section 249-A, Cr.P.C. was amenable to criminal revision or the same was assailable before this Court through a petition for special leave to appeal as provided under Section 417(2) Cr.P.C. has not been satisfactorily answered by learned counsel for the petitioner. For reference, Section 417(2) Cr.P.C. is reproduced as infra:

“417. Appeal in case of acquittal: (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”

Likewise by virtue of Section 439(5), Cr.P.C. there is bar on the revisional jurisdiction of the Court in the cases where remedy of appeal is provided under the Code ibid. Sections 439 and 439-A, Cr.P.C. are described as infra for the purpose of clarity:-

“439. High Court’s powers of revision: (1) In the case of any proceeding the record of which has been called for by itself, […] or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Where the sentence dealt with under this section has been passed by Magistrate […], the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by Magistrate of the first class.

(4) Nothing in this section shall be deemed to authorize a High Court:

(a) to convert a finding of acquittal into one of conviction, or

(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under Section 439-A.]

(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show- cause against his conviction.”

“439-A. Sessions Judge’s powers of revision: (1) In the case of any proceeding before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by Section 439.

(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Session Judge].

7. Another intriguing aspect of this case which cannot be ignored is that whether a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is competent against the order of acquittal under Section 249-A, Cr.P.C, in this regard, I am of the firm view that when the statute has provided a specific alternate remedy of appeal against acquittal, constitutional petition is not competent against such an order, therefore, the writ petition in hand is not maintainable in the eyes of the law.

8. So far as the wisdom laid down by the Supreme Court of Pakistan in case-law titled as “The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544) is concerned, although it has been held in the aforementioned case-law that the order of acquittal of accused under Section 249-A, Cr.P.C. would not have the same sanctity as order of acquittal on merits and the principles applicable to second category of acquittal would not apply to first category of acquittal, but I am of the view that it does not mean that the acquittal order passed under Section 249-A, Cr.P.C. is amenable to revisional jurisdiction as enshrined in Section 439-A, Cr.P.C. After going through the above mentioned case-law, it manifests that even in the said case also, appeal in terms of Section 417, Cr.P.C. was filed before the Sindh High Court against the acquittal of accused under Section 249-A, Cr.P.C. which was dismissed in limine and the same was challenged before the Supreme Court of Pakistan. In this way, it is abundantly clear that the case-law relied upon by learned counsel for the petitioner is not helpful to him.

9. It is noteworthy that criminal appeal and revision have different features. Appeal is filed on question of law and facts in the light of Section 418, Cr.P.C. whereas in criminal revision only correctness, legality and propriety of any finding, sentence or order is to be seen. A criminal revision is not competent against the order of acquittal, because, it is prohibited according to Section 439(4)(a) Cr.P.C.

10. Aftermath of above discussion is that the criminal revision before the Court of learned Additional Sessions Judge was not competent, because, an order of acquittal can only be assailed by way of remedy provided under Section 417(2), Cr.P.C. and not otherwise, therefore, there is no illegality or perversity in the order passed by learned Additional Sessions Judge, who has rightly dismissed the criminal revision. Resultantly, this constitutional petition has no force and the same is hereby dismissed in limine.

(K.Q.B.) Petition dismissed

Suit for restitution of conjugal rights---Respondent when appeared and submitted her written statement claimed ......

2016 P.L.R. 58

Art. 199---W.P. Family Courts Act, 1964, S. 9---Suit for restitution of conjugal rights---Respondent when appeared and submitted her written statement claimed dissolution of marriage etc.---Changed circumstances---Amended list of witnesses---Not only petitioners’ request for production of additional evidence was turned down, so much so, his list annexed was also rejected---Impugned order---Validity---Judge Family Court is empowered to allow either of the parties to call any of the witnesses at any later stage if it considers such evidence expedient to the interest of justice---Impugned order was not only misconceived but also was illegal and based on misreading and wrong interpretation of law on subject---Impugned order was set aside and Trial Court was decided to examine the witnesses mentioned in the application filed by petitioner---Writ petition accepted.

PLJ 2021 Islamabad 23
Present: Fiaz Ahmad Anjum Jandran, J.
MUHAMMAD SHAKIR--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, ISLAMABAD-WEST, etc.--Respondents
W.P. No. 867 of 2020, decided on 20.11.2020.

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 7 & 17(a)(4)--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowance and suit for recovery of dower--Suit for maintenance was partially decreed and suit for recovery of dower was dismissed--Petitioner was jobless--Contribution for payment of school fees of minors--Working lady--Financial capability--Question of--Whether course adopted by Family Judge and affirmed by appellate Court qua fixation of maintenance, to be paid by petitioner/father in accordance with evidence on record besides law on subject--Witness admitted that during cohabitation, petitioner had been contributing to some extent in terms of maintenance out of his income; that she is serving in BPS-11 with monthly salary of Rs. 27,000/-; that she is also doing private job and earning Rs. 30,000/- per month; that she has no knowledge as to whether petitioner is currently jobless; that at time of Nikah her Rukhsti had not taken place and that petitioner had been contributing for payment of school fees of minors during Abadi--Respondent No. 3 in her statement has not given details or even remote hint whereby financial status of petitioner could be ascertained while on other hand a suggestion was also put to her that petitioner is jobless--In such an eventuality, when legitimate source of income of petitioner is shrouded in mystery and it is established that Respondent No. 3, is a working lady, had been contributing towards maintenance parallel to petitioner, awarded maintenance appears to be excessive and in contravention of financial capability of petitioner particularly, when there is nothing on record regarding his financial capability--Amount so fixed thus warrants modification--It was incumbent upon Courts to determine income of father for which recourse in terms of sub-section 4 of Section 17 (A) of West Pakistan Family Courts Act, 1964 can be adopted which is meant to facilitate Court to determine financial position of father--Petition was allowed. [Pp. 30 & 31] A, B & C

PLD 2013 SC 557, 2012 SCMR 671, PLD 2018 Lah. 916 &

2019 MLD 820 ref.

Ch. Muhammad Javed Gujjar, Advocate for Petitioner.

Malik Muhammad Haseeb, Advocate for Respondents No. 3

to 6.

Date of hearing: 28.9.2020.

Judgment

Through the instant writ petition, petitioner impugns judgment and decree dated 9.7.2019 and 21.12.2019 passed by the learned Senior Civil Judge-III Guardian Judge, Islamabad-West and learned Additional District Judge, Islamabad-West, whereby suit for recovery of maintenance allowance filed by the respondents was partially decreed while appeal filed by the petitioner was dismissed.

2. Facts, relevant for the disposal of instant writ petition are that Respondents 3 to 6 have filed a suit for recovery of maintenance allowance against the petitioner whereby Respondent No. 3 sought maintenance for herself at the rate of Rs. 5000/- per month w.e.f. April 2011 while for the respondents 4 to 6 at the rate of Rs. 10,000/- per month w.e.f. June 2013 till their majority besides Rs. 2,68,350/- school fee of Respondent No. 4 and Rs. 71,600/- the amount paid by her parents as educational fee of the petitioner. Besides the said suit, Respondent No. 3 also filed a suit for recovery of dower amount to the tune of Rs. 1 Million and twenty tolas gold ornaments.

3. The petitioner contested the suit by filing written statement he controverted the stance of the respondents by asserting that he was living in the house of parents of Respondent No. 3; that he was expelled out of the house in June 2016 and that he had been paying all the school fee of the respondents 4 to 6 from his own pocket till June 2016.

4. The learned trial Court out of divergent pleadings of the parties, framed necessary issues and recorded evidence of the parties. Respondent No. 3 appeared as PW- 1, tendered affidavit PI, Nikah Nama P2, Form B Mark PA, birth certificates of minors Mark A2 to Mark A4, marriage registration certificate Mark A5, fee challans Mark A6/1 to Mark A6/19. On the other hand, petitioner’s father Muhammad Younas appeared as DW-1 and tendered power of attorney and affidavit Ex.Dl and Ex.D2 respectively. The learned trial Court after hearing the parties, dismissed the second suit of Respondent No. 3 for recovery of dower amount and gold ornaments while partially decreed the suit of the respondents for recovery of maintenance in terms that respondents 4 to 6 were held, entitled to recovery maintenance at the rate of Rs. 10,000/- per month each -- from July 2016 till their legal entitlement with 5% annual increase while claim of the respondent, No. 3 for recovery of maintenance allowance was dismissed. Hence, the instant writ petition.

5. Learned counsel for the petitioner argued that the evidence on record establishes the fact that the petitioner since day one of the marriage had been living in parental house of Respondent No. 3; that petitioner has no legitimate source of income at present while on the other hand, Respondent No. 3 is a working lady having permanent job and source of income while it is also established from the evidence that the petitioner had been contributing towards payment of maintenance, therefore, in absence of sufficient financial means, the impugned maintenance is too excessive, therefore, impugned judgment and decree to this extent are liable to be modified.

6. On the other hand, learned counsel for the respondents 3 to 6 argued that from the statement of witness of petitioner, it is evident that the petitioner hails from a well-off family and living with his parents while the maintenance fixed, in the present days of inflation, in no way can be termed excessive, therefore, petition is liable to be dismissed.

7. Heard the learned counsels for the parties and perused the record with their able assistance.

8. The pivotal point in the case is that whether the course adopted by the learned Family Judge and affirmed by the learned Appellate Court qua fixation of maintenance, to be paid by the petitioner/father is in accordance with the evidence on record besides the law on the subject.

9. The Hon’ble Apex Court in case law reported as “Muhammad Asim v. Mst. Samro Begum” (PLD 2018 SC 819), has held that:

“Where a husband was required to maintain his wife or children and was required to pay maintenance, including the arrears of maintenance, his present and past earnings must be disclosed by him, because his financial status would determine the amount of maintenance that should be awarded. The family Court should try to ascertain the salary and earnings of husband/father, who was required to pay maintenance.” [Emphasis added]

10. The Hon’ble Supreme Court of Pakistan in another judgment reported as “Humayun Hassan v. Arslan Humayun and another (PLD 2013 SC 557) expounded the law in the following terms:

“4. Heard. There can be no, cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to Section 369 of the Muhammadan Law by D.F. Mullah, maintenance means and includes food, raiment and lodging. However, it may be observed that from the very language of the above section, such definition is neither conclusive nor exhaustive and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well-being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance but obviously corresponding to and commensurating with the means and the capacity of the father to pay. Anyhow, the same jurist in Section 370 of the book has elucidated the liability of the father to pay the maintenance to his children as follows:--

“370. Maintenance of children and grandchildren.--(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (section 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.

(2) If the father is poor, and in capable of earning by his own labour the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.

(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.”

And at the end an additional note on the compendia of the principal of Muslim Personal Law was also made in the following terms:

“When a Court of law is to adjudicate upon parental or filial obligations of a Muslim it is only the legal principles concomitant to such obligations which are relevant and not the social or moral principles. A father, or any of the parents in a given case, may be under a social or moral expectation, compulsion or obligation to maintain a minor offspring for as long as the offspring does not attain the requisite physical, mental, intellectual and financial capacity to survive and sustain on his own but the case in hand before the learned trial Court was only in respect of maintenance of a minor son by his father which issue, on the legal plane, could not have been stretched by the learned executing Court and the learned Judge-in-Chamber of the Lahore High Court, Lahore to a stage beyond the sons’s minority by blurring the distinction between social and moral obligations and legal obligations under the principles of Muslim personal law.

11. In another judgment, Hon’ble Supreme Court of Pakistan in “Khadija Bibi and another v. Abdul Rahim and another” (2012 SCMR 671) by remanding matter to the learned Family Court held as under:

“3. The other question as to automatic annual increase in the maintenance for the minor children has been dealt with by the High Court in para 7 of the impugned judgment At present, there appears to be no factual basis brought on record to justify such annual increase. The learned counsel for the petitioner, however, states that he will be in a position to lead evidence in the form of financial statistics including the Sensitive Price Index (“SPI”) to persuade the trial Court to grant annual increase in line with such statistical data.

4. In the foregoing circumstances, the appellate judgment dated 23.02.2010 and the impugned judgment dated 04.08.2011 are set aside. The ivatter is remanded to the Trial Court which shall proceed to frame specific issues relating to the dowry articles as well as enhancement of maintenance awarded to the minor children and shall thereafter allow the parties to lead evidence before deciding the case afresh. During this period, maintenance at the rate of 2,000 per month shall continue to be deposited by the Respondent No. 1/Grandfather.”

12. The Hon’ble Lahore High Court in the case of “Nazia Bibi and others v. Additional District Judge Ferozewala and others” (PLD 2018 Lahore 916) held that:

“9. Quantum of maintenance requires due consideration of all factors on the basis of which the Court can determine the actual need of the minor. In this regard, it is important for the Court to first determine the expenses incurred or likely to be incurred on the minors. For this purpose the Court must look into the living conditions of the minor and the manner and means by which the mother is maintaining the minors which will include factors like where they reside, whether the mother is dependent upon her family, if so what is the income on the basis of which the minor is also being cared whether she has a job and whether she has any source of independent income. Special needs of the minor which will include medical or physical needs or special educational needs should a/so be seen. Special needs, will vary from case to case, if relevant, as it is unique to the situation and individual. Yet for the purpose of maintenance it is the obligation of the father to fulfill these special needs. In the case of enhancement, the Court must also determine as to what extent the maintenance already fixed meets the requirement and expenses of the minor and for what purpose, further enhancement is required. At the same time the Court must determine the income of the father either through proper documentary evidence or on the basis of the social status and earning capacity of the father. In order to ensure that proper information is before the Court, it may always require the father to produce documents such as his salary slips or any bank statement or property document on the basis of which he is able to show his monthly income of earning or his financial status. In this regard, the assets owned by the father are relevant as it contributes towards establishing the financial status of the a has to be probed into by the Court and based on attending circumstances the Court can conclusively establish the means through which the father will be able to maintain the minors. It is also important to take into consideration any liability of the father that is whether he is paying any bank loan or debt, whether he has remarried or has other children or whether his parents are dependent on him. In this way the Court can determine the manner in which the income of the father is spent and balance the income and capacity with the reasonable requirements of the minors seeking maintenance. [Emphasis added]

13. The Hon’ble Lahore High Court in case reported as “Khalid Mahmood v. Naseem Akhtar” (2019 MLD 820 Lahore) held that Section 17-A (4) of the Family Court Act, 1964 provided that paramount duty of the Family Court is to keep in mind the financial status of the father before fixing the quantum of maintenance. Likewise, in case laws reported as 2004 MLD 1325 Peshawar and 2009 CLC 1819 Lahore, same principle was reiterated.

14. That evidence of PW-1 (Respondent No. 3) is available on record, wherein, in her cross-examination she stated as under:

یہ درست ہے کہ میں سرکاری جاب کرتی ہوں۔ یہ درست ہے کہ میری جاب محکمہ (PWD) میں ہے۔

یہ درست ہے کہ میرے نکاح میں میرے والد صاحب بھی شامل نہیں تھے۔ یہ درست ہے کہ میری والدہ میرے نکاح میں شامل تھیں۔

ہماری شادی love کی شادی تھی۔

یہ درست ہے کہ مدعا علیہ بوقت نکاح زیر تعلیم تھا اسکی کوئی جاب نہ تھی۔

یہ درست ہے کہ مدعا علیہ دوران آبادی اپنی آمدن میں سے معمولی سا خرچا مجھے دیتا تھا۔

میں BPS-9 میں جاب کرتی ہوں۔ دوبارہ کہا کہ اب میں BPS-11 میں جاب کرتی ہوں۔ میں بطور UDC جاب کرتی ہوں۔ میری گراس سیلری/تنخواہ 27,000/- روپے ہے۔ یہ درست ہے کہ میں سرکاری ملازم کے علاوہ بھی پرائیوٹ طور پر ایک جاب کر رہی ہوں۔ میں اپنی پرائیوٹ جاب سے ماہانہ 30,000/- روپے تنخواہ لے رہی ہوں از خود کہا کہ میری پرائیوٹ جاب پارٹ ٹائم ہے۔

یہ درست ہے کہ ہماری کالونی کے اندر بھی سرکاری سکول موجود ہے۔ یہ درست ہے کہ متذکرہ سکول پیدل مسافت پر واقع ہے۔

مجھے علم نہ ہے کہ مدعا علیہ اپنے اخراجات کے سلسلہ میں اپنے والدین پر انحصار کرتا ہے۔

دوران آبادی مدعا علیہ بچوں کی فیس ادائیگی میں حصہ ڈالتا رہا ہے۔

15. The above referred testimony of the Respondent No. 3 when considered in light with the other pleadings then it transpires that judgments of the two Courts below is lacking regarding determination of quantum of maintenance for the private respondents, in the light of above referred case laws.

16. It is incumbent upon all Courts of the country to adhere legal pronunciation by the Apex Court of the land and to seek guidance while deciding the matter before them which has not been considered in the present case by the lower forum.

17. The principle ibid, guides to hold that before determination of the quantum of the maintenance, the learned Family Court, is under obligation to determine the financial capability of the father vis-a-vis amount claimed in that respect. The test provided for the purpose is that there should be some tangible, concrete and confidence inspiring material preferably in the shape of documents and thereafter proper maintenance is to be fixed.

18. Now it is to be seen that whether the maintenance fixed and affirmed by the two learned Courts is inconsonance with income of the petitioner and for ascertaining the same, evidence has been gone through.

19. The statement of Respondent No. 3/PW-1 is very material in this respect and as a matter of fact, reflects the true story. She in cross-examination admitted that she is doing government job in PWD; that no rent is being deducted from them for the residence wherein they are residing; that no member from the family of petitioner attended the Nikah ceremony; that even her father had not participated in the Nikah; that it was a love marriage; that at the time of Nikah, petitioner had been studying and was jobless.

Description: A20. The witness admitted that during cohabitation, petitioner had been contributing to some extent in terms of maintenance out of his income; that she is serving in BPS-11 with monthly salary of

Rs. 27,000/-; that she is also doing private job and earning Rs. 30,000/- per month; that she has no knowledge as to whether the petitioner is currently jobless; that at the time of Nikah her Rukhsti had not taken place and that petitioner had been contributing for payment of school fees of the minors during the Abadi.

Description: B21. The careful analysis of the statement of the Respondent No. 3 lead to draw conclusion that it was a love marriage, petitioner had been studying at that time, while they after the marriage, lived in the parental house of the Respondent No. 3, which is an official accommodation. It also borne out from the evidence that the petitioner, as admitted by the Respondent No. 3 highlighted above, had been contributing in terms of maintenance and payment of school fee of the children at par with his financial capability. The Respondent

No. 3 in her statement has not given the details or even remote hint whereby the financial status of the petitioner could be ascertained while on the other hand a suggestion was also put to her that the petitioner is jobless. In such an eventuality, when the legitimate source of income of the petitioner is shrouded in mystery and it is established that Respondent No. 3, is a working lady, had been contributing towards maintenance parallel to the petitioner, the awarded maintenance appears to be excessive and in contravention of the financial capability of the petitioner particularly, when there is nothing on record regarding his financial capability. The amount so fixed thus warrants modification.

Description: C22. The sequel of above discussion is that while fixing maintenance, both the learned Courts have overlooked the important aspects highlighted in para-14 (supra), which are essential to determine the financial capability of the father vis-a-vis independent source of income of the Respondent No. 3/mother. It was incumbent upon the Courts to determine the income of the father for which recourse in terms of sub-section 4 of Section 17 (A) of the West Pakistan Family Courts Act, 1964 can be adopted which is meant to facilitate the Court to determine the financial position of the father.

23. Consequently, impugned judgments and decrees dated 9.7.2019 and 21.12.2019 are set-aside and the matter is remanded to the learned Senior Civil Judge-III/Guardian Judge, Islamabad-West for decision afresh within a period of one month from the receipt of this judgment after giving due opportunity to both the parties to lead evidence, if so desire. The petitioner shall continue paying maintenance allowance at the rate of Rs. 3500/- per month per child, which he is already paying, till the final disposal of the suit. There shall be no orders as to costs.

(Y.A.) Petition allowed