فیملی مقدمات میں نان و نفقہ مقرر کرنے بارے لاھور ہائیکورٹ کا رہنما فیصلہ۔

Maintenance fixation by family court

PLD 2022 Lahore 840

فیملی مقدمات میں نان و نفقہ مقرر کرنے بارے لاھور ہائیکورٹ کا رہنما فیصلہ۔

ہائیکورٹ نے اس فیصلہ کی نقول پنجاب کے تمام ججز اور پنجاب جوڈیشل اکیڈمی بھجوانے کی ھدایت کی ہے

Justice Jawad Hassan authored a landmark judgment on the issue of maintenance fixed family courts in a mechanical manner and observed that "Adjudications in Family Courts reflect their detachment from the realities of the current socio-economic situations of the Country. Stereotype orders are passed arbitrarily and mechanically, that too, in deviation to the legislation which can benefit nothing, but they will make way for multiplication of litigation amongst parties forcing them not only into unfathomable agonies, but burdening them with certain financial obligations as well ending up in further economic distress and plight.

This constitutional petition decided an important question of law with regard to procedure provided for fixing maintenance allowance enacted in shape of Section 17A(4) of the Family Courts Act, 1964 (the “Act”) which is being ignored frequently by the Family Courts resulting into arbitrarily fixing amount of maintenance and passing of stereotype orders/judgments eventuating in serious miscarriage of justice in utter disregard of intent of Statute; pathology of Section 17A(4) of the Act; anatomy of Schedule under Section 5, Part-1 and judicial anthology of the decisions of apex as well as this Court which are binding on the Family Courts under Article 189 and 201 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”). The Issue.

The subject matter, is of great technical complexity, but the legal question which falls for determination by this Court is the fixing of maintenance allowance by the Family Court without considering the provisions of law and how it can be applied for the benefit of parties at lis.

Section 17-A of the “Act” was amended in 2015, wherein Section 17-A(1) starts with the words “suit for maintenance” and it deals with the interim maintenance of wife and the child, whereas Section 17-A(4) deals with final maintenance allowance. In order to elucidate and interpret Section 17-A(1) ibid the legislature has emphasized to pay interim maintenance on first appearance of the defendant. Upon assiduous perusal of the provisions of Section 17-A ibid, it can be gleaned that the use of the terms “fix” and “fixing” in sub-section 1 and 4 of the said Section 17-A is of much relevance. The term “fix” in itself is defined by the Black’s Law Dictionary as “to liquidate or render certain”. Whereas, “fixing” is the act of doing so. The, use of both said terms “fix” and “fixing” respectively arise in Section17-A (1) of the “Act” to fix interim maintenance and in Section17-A (4) of the “Act” for fixing final maintenance. 13. The question now arises whether the Family Court has unguided un-fettered and un-bridled and arbitrary powers to fix maintenance while employing its discretionary dominion at its discretion or is it required to proceed on pragmatic, rational and judicial basis? The answer, of course, is that it should proceed on the later. Family Court should adopt an objective approach and broadly look into the social status of the parties, the earning of the defendant, his capacity to pay and most importantly, the requirements of the claimants while fixing the maintenance.

It can not be denied at all that a husband is under legal, moral religious obligation to maintain his legally wedded wife. Section 272 of Mohammdan Law by Mullah provides that husband is bound to maintain his wife so long she is faithful to him and obeys his reasonable orders but he is not bound to maintain her if she refuses herself to him or otherwise disobeys. Section 278 postulates that if a husb and refuses to maintain his wife, she may sue for maintenance. Nafqa Hence, it is t he obligation of husband to pay or maintenance, if construed in accordance with the principles as laid down in "HIDAYA" Hamilton in Chapter XV such as "Nafqa" translated by Charles , in the language of law, signifies all those things which are necessary to support of life, such as food, clothes and lodging. Moreover, it is further demonstrated that when a woman surrenders herself into the custody of her husband, it is incumbe nt upon him to supply her with food, clothing and lodging, whether she be a Muslim or an infidel, because maintenance is a recompense for matrimonial restrain, whence it is that where a person is in the custody of another on account of any demand, or so fo rth, his subsistence is incumbent upon the other. demonstrates that The jurisprudence developed by Islam it is the duty of a Muslim wife to perform her part of obligation first for setting in with claim of maintenance. The husband may refuse to maintain hi s wife when she refuses to 5 . live with him and if a wife refuses to live in the house of her husband and not ready to perform her part of duty and denies to live with him as his wife, she is not entitled for maintenance.

In Islamic law, a father is under legal, moral and obligation to maintain his children till the religious age specified by law/sharia and it shall not be out of context to mention here that his such obligation originates from esteemed dictates of Holy Quran.

This Court is in no doubt that the Family Court should keep in consideration the following aspects and legal requisites before passing the interim and final maintenance allowance under Section 17-A(1and 4) ibid: (i) Basis of averments in plaint; (ii) other supporting documents on record; (iii) summoning all relevant documentary evidence; (iv) determining the estate; and (v) determining resources of the defendant.

Procedure to be followed by the Family Courts

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For implementation of purpose of the “Act” aimed at much needed expeditious disposal of disputes, the “Act” has brought in certain powers, procedure and parameters for the Family Courts for being adhered to. Hence, there can be no qualms about the fact that the Family Court has to exercise its powers so conferred vide provision of Section 17-A of the “Act”. Thus, the Family Court is legally obliged to assess the quantum of maintenance as per dictate and criteria mentioned in Section 17-A(4) of the “Act”.

In connection thereto, time and again formulated guidelines as well as principles settled by superior courts are overlooked by the Family Court. In a bright/clear situation of abovementioned inability of Respondent and shortfall on his part, Family Court itself was empowered to step ahead with procedure enunciated in sections 17 (4) and 17B ofA the “Act” for requisite inquiry destined for absolute and unambiguous determination of his ‘estate’ and ‘resources’ including his salary/monthly income to finally fix maintenance allowance in issue. Nonsettled adherence of law, formulated guidelines and principles thus can’t be guarded for being allowed to breath any further.

Judicial resources need to be promptly and consistently available to litigants for the core functions of fact finding, particularly when law itself is available for rescue. Therefore, in all cases where the occupation, job or source of income of the person is definite and identified and of such a n ature remuneration, income or earnings wherefrom can be traced in a documented form then by all extent and measures, it is the duty of the Family Court to ascertain the ‘estate’ and ‘resources’ of the defendant defined above, in all such cases where the sa me stands undetermined or pleadings are evasive or just formal without substantive or believable proof in this regard and by way of summoning the relevant documentary evidence instead to settling with sole reliance upon the pleadings/averments of the parti es without due application of mind and exercise of its powers specifically conferred by way of legislation. It is neither unusual nor whimsical for the Family Courts to delve into the relevant documentary evidence dealing with the financial status of the d . efendant to determine the maintenance.

It is well established that the procedural laws are enacted to advance ca use of justice and not to thwart the same, which intent of law is no doubt always aimed at the welfare of its subjects. So, it is need of the day to employ legislated processes that are more accessible and more responsive for children, parents, and familie s. The Family Courts must adopt therapeutic and holistic approach to the Court structure and processes, as well as to decision making in family disputes.

The Registrar of this Court is also directed to make sure transmission of copy of this judgment to all District Judges of the Punjab for its circulation amongst Family Courts discharging duties under their supervision for strictly following provisions of the “Act” in true spirit whilst dealing with issue of fixing maintenance allowance. A copy of this judgment shall also be sent to Director General, Punjab Judicial Academy which functions under Section 4 of the Punjab Judicial Academy Act, 2007 and prescribes manner of training to judicial officers in terms of Section 5 of the Act ibid.