2021 C L C 1300
Family Courts Act (XXXV of 1964)---
.....................
----Ss.17-A & 17-B---Interim maintenance allowance---Non-payment---Penal consequences---Decreeing the suit forthwith---Discretion of the Court---Scope---If defendant defaulted, in making payment of interim maintenance, despite orders by the Family Court, penal action in terms of S.17-A of the Family Courts Act, 1964 ('the Act 1964') provided two separate penal consequences; first striking off the right of defence and second to decree the suit---Sections 17-A & 17-B of the Act 1964, provided that by having used the word " may " the Legislature did not intend to make passing of decree mandatory, rather it had been left upon the discretion of the Trial Court to consider the facts and circumstances of each case---Section 17-B of the Family Courts Act, 1964 further explained the circumference as well as the mode of exercising the authority in shape of making reasonable inquiry of the matter-in-question before decreeing the suit due to default i.e. the Court may issue a Commission to examine any person; make a local investigation; and inspect any property or document.
Family Courts Act (XXXV of 1964)---
......................
----S.5, Sched. & S. 17-A ---Civil Procedure Code ( V of 1908), O.VI, R.17---Interim maintenance allowance for wife and minors---Quantum and entitlement---Scope---Plaintiff-lady filed suit for maintenance allowance for minors and herself---Defendant moved application for amendment in the pleadings contending that the fact that he had divorced the mother of the minors could not be mentioned in the written-statement submitted on his behalf by his special attorney in connivance with plaintiff---Family Court fixed amount of interim monthly maintenance allowance of both the minors @ Rs.15,000/- each and Rs. 20,000/- for the mother of the minors---Family Court after failure of the defendant to deposit the interim maintenance allowance on three dates of hearing, struck off his right of defence and decreed the suit under S.17-A of the Family Courts Act, 1964---Appellate Court maintained the order of the Family Court---Both the father and mother invoked constitutional jurisdiction of the High Court to assail quantum/entitlement of the maintenance allowance---Held, that record verified the fact that there had been a default on the part of the defendant in payment of interim maintenance---Although it could not be said that the Family Court wrongly invoked the provisions of S.17-A of the Act, however, material fact regarding divorce should not have been ignored---Copy of the Divorce Deed was not only on the record but the same was also acknowledged from the fact that the plaintiff had filed a suit challenging the validity of the said Divorce Deed---Since the fate of the claim of the plaintiff for recovery of her maintenance allowance hinged upon the factum of her being in Nikah of the defendant or not, therefore, the application for amendment in the statement ought to have been decided before passing a decree---In consequence of peculiar circumstances of the present case as well as the amount of maintenance allowance demanded by the minors/ their mother, it was incumbent upon the Trial Court to have sought evidence of the parties in proof of justification concerning the quantum of maintenance---High Court set aside the decrees and judgments passed by both the Courts below and remanded the matter to the Family Court to decide the quantum of maintenance after taking evidence of the petitioner/defendant vis-a-vis his financial status---High Court directed that the Family Court shall also decide the application moved by the defendant for seeking amendment in his written-statement before passing any order regarding maintenance for the mother of the minors owing to the plea of divorce raised by the defendant ; that the Family Court shall also fix interim maintenance allowance after hearing both the parties and considering financial competency of the father who shall regularly pay the same---Constitutional petition of the mother of the minors was disposed of---Constitutional petition of the father was allowed, in circumstances.
Family Courts Act (XXXV of 1964)---
...... ........
----S.5 ,Sched. & S.17-A ---Suit for maintenance allowance for minors and wife---Interim maintenance allowance fixed by the Court---Non-payment of---Suit was decreed as penal consequence---'Decree'---Scope---Family Court ordered the defendant to deposit interim maintenance allowance of minors as well as that of wife/plaintiff fixed by the Court and after his failure to deposit the same on three dates of hearing struck of his right of defence and decreed the suit under S.17-A of the Family Courts Act, 1964---Held, Penal consequence to decree the suit provided under S.17-A of the Family Courts Act, 1964 embraced the expression of "decree" which though had not been defined in the Act, yet the decree invariably referred to judicial determination of a matter in controversy and such determination could not be done without application of mind in accordance with evidence and law on the subject---Impugned judgment , therefore, mechanically and technically upholding prayer of a suit could not be termed a decree---High Court set aside the impugned decrees and judgments passed by both the Courts below and remanded the matter to be decided afresh---Constitutional petition of the father was allowed, in circumstances.
Family Courts Act (XXXV of 1964)---
...................
----S.5, Sched. & Ss.17-A & 12-A---Maintenance allowance, grant of---Interim maintenance allowance, fixation of ---Family Court, powers of---Family Court, for grant of maintenance allowance, was to see that maintenance allowance, was indispensible right of the mother and children, so the order for grant of maintenance allowance must be passed at a "convenient stage" of the proceedings---Although S.17-A of the Family Courts Act, 1964 empowered the Family Court to pass order for grant of interim maintenance at any stage of the proceedings, in the normality of circumstances, the same must be passed after hearing both the parties, unless the attitude and conduct of the defendant/father was evasive---Order for grant of interim maintenance was to be made on the basis of tentative assessment of material available on file and keeping in view the social status of the parties---Both material available and social status was to be mentioned in the order for grant of interim maintenance---Quantum of interim maintenance was to be "bare minimum" to meet the day to day needs of the recipients in the narrow context---Although the Family Laws had been enacted to promote , protect and advance the rights of woman and children yet at the interim stage the version of the defendant be given a sympathetic or some-what preferable consideration because non-payment of interim maintenance allowance would cut throat of his valuable rights i.e. right to defence and inconsequential effects, children/women would be the loosers and deprived parties---High Court observed that if the case was not decided within the statutory period as given in S.12-A of the Act either party might apply to the High Court for appropriate direction, however, order for grant of interim maintenance shall hold the field unless reviewed by the High Court under S.12-A of the Act or Family Court itself reviewed the same at any stage. Rafiq Ahmad Khan Lound Advocate High Court
0 comments:
Post a Comment