Landmark judgment on 17-A imtirim maintenance. (Mujjan Ali Panhwar ).
(a) West Pakistan Family Courts Act (XXXV of 1964)--
---Ss. 17-A & 5, Sched---General Clauses Act (X of 1897),
S.24-A--Constitution of Pakistan, Arts. 199 & 10-A---Constitutional
petition--Maintainability---Maintenance of minor child---Interim
maintenance, fixation of---Procedure---Interim order---Appeal---Family
Court fixed interim maintenance of minor at the rate of Rs.10,000/- per
month--Validity---Family Court had power to pass interim maintenance
order at any stage of the suit---Interim maintenance should be fixed
after filing of written statement of the defendant---If defendant had
found that same was excessive or if order suffered from any illegality,
irregularity or same was arbitrary, fanciful, void ab initio, without
jurisdiction or same had attained the status of final order, then the
constitutional petition was maintainable---Constitutional petition was
not maintainable where factual controversies were involved---Public
Authority was required to furnish reasons for every order whether the
same was executive or judicial and order for grant of interim
maintenance allowance was not an exception----Family Court while keeping
in view prima facie status of both the parties fixed tentative interim
maintenance allowance of the minor daughter at the rate of Rs.10,000/-
per month---Father was working abroad but he had not mentioned about his
actual salary in his written statement---Amount fixed by the Family
Court could not be termed excessive or in consistent with ostensible
financial status of father in the given circumstances-- Father was under
legal as well as moral obligation to maintain and support his minor
daughter as per Injunction of Islam---Impugned order could not be
assailed in constitutional petition as statute did not provide any
appeal against interlocutory order---Impugned order was neither void ab
initio nor without jurisdiction and not a final order-- Amount of
Rs.10,000/- per month as an interim maintenance was sufficient to meet
day to day expenses of minor daughter who was of only one and half year
old---Family Court, while passing the interim maintenance was required
to give the bear minimum to the minor---No illegality or material
irregularity had been pointed out in the impugned order---Both the
constitutional petitions were dismissed in circumstances.
Irfan
Ahmed v. II-Judicial Magistrate East, at Karachi and another 2006 MLD
135; Mst. Samina Afzaal and 5 others v. Additional District Judge and
another 2010 MLD 52; Awais Khalid v. Judge Family Court and others 2011
YLR 3034 and Abrar Hussain v. Mehwish Rana and 3 others PLD 2012 Lah.
420 ref..
Sikhawat Hussain v. Farzand Bibi and 6 others 2004 MLD
1834; Ghulam Mohy-ud-Din v. Mst. Mehvish 2002 YLR 3771; Muhammad Khalid
Javeed v. Mst. Shahida Parveen and 4 others 2007 YLR 1366; Aamer Mehmood
Hussain v. Naeha Aamer Sayed and 2 others 2011 MLD 1105; Abrar Hussain
v. Mehwish Rana and 3 others. PLD 2012 Lah. 420; Nadeem Raza v. Judge
Family Court and 3 others 2013 YLR 965; Muhammad Younus Khan and 12
others v. Government of N.-W.F.P through Secretary, Forest and
Agriculture, Peshawar and others 1993 SCMR 618; Benedict F.D. Souza v.
Karachi Building Control Authority and 3 others 1989 SCMR 918; Mst.
Sitwat Chughtai and another v. Judge, Family Court, Lahore and another
PLD 2009 Lah. 18 and Muhammad Saad Ali and 2 others v. Mst. Maryam Khan
and 2 others 2014 CLC 715 rel.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----Preamble---Object---West Pakistan Family Courts Act, 1964 had been
established for protection and convenience of the weaker and vulnerable
segments of the society i. e. women and children.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 17-A---Interim maintenance, fixation of---Procedure---Family
Court had power to pass interim maintenance order at any stage of the
suit---Interim maintenance should be fixed after filing of written
statement of the defendant.
(d) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 17-A---Interim maintenance, fixation of---Guidelines.
Following are guidelines with regard to fixation of interim maintenance for minor:
(i) Purpose behind insertion of section 17-A in Family Courts Act, 1964
is to ensure that during pendency of proceedings with Family Court,
financial constraints faced by minors are ameliorated;
(ii)
Family Court should broadly look into social status of parties, earning
of defendant, his capacity to pay and requirements of minor is the
touchstone on which Family Court should fix interim maintenance;
(iii) For the reason that no right of appeal etc. has been provided
against fixation of interim maintenance, such order being tentative and
interim in nature, the Family Court should be more careful and precise
in such context to ward off any injustice.
I. Maintenance
allowance is indispensable right of the mother and children, so the
order for grant of maintenance allowance must be passed at a "convenient
stage" of the proceedings.
II. Although section 17-A of the ibid
Act empowers Family Court to pass an order for grant of interim
maintenance allowance at any stage of the proceedings, in the normality
of the circumstances, it must be passed after hearing "both of the
parties" unless the attitude and conduct of the defendant/father is
evasive.
III. The order for grant of interim maintenance is made
on the basis of tentative assessment of the material available on file
and keeping in view the social status of the parties. Further, both the
above, material available and social status, should be mentioned in the
order for the grant of interim maintenance. Further the quantum of
interim maintenance should be "bare minimum" to meet the day to day
needs of the recipient in the narrow context.
IV. Although the
family laws have been enacted to promote, protect and advance the rights
of women and children yet at the interim stage, the version of the
respondent/defendant be given a sympathetic or somewhat preferable
consideration because, non-payment of interim maintenance allowance will
cut throat of his invaluable right i.e. "right to defence" and in
consequential effects, children/women would be the losing and deprived
parties.
V. Further, if the case is not decided within the
statutory period as given in Section 12-A of the West Pakistan Family
Courts Act, 1964 either party may apply to the High Court for
appropriate direction. However, the order for grant of interim
maintenance shall hold the field unless reviewed by High Court under
Section 12-A or Family Court itself reviews it at any stage as observed
below.
VI. Family Court, according to section I2-A" of the West
Pakistan Family Courts Act, 1964, is under legislative direction to
decide the case within six months. Although this provision is directive
as no penalty/consequences are mentioned for non-compliance and in this
regard reference is made to (2001 SCMR 1001). But in case the matter is
not decided within six months and the delay is due to the plaintiff
party, then Family Court either on its own motion or on the application
of the defendant/father review its earlier order for grant of interim
maintenance allowance.
(e) West Pakistan Family Courts Act (XXXV of 1964)--
---S. 14---Interim order---Remedy---No remedy of appeal, revision or
review had been provided against an interim order passed by the Family
Court.
(f) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 14---Interim order of Family Court, review of---Scope---Family
Court had power to review its own order but only to the limited extent.
(g) General Clauses Act (X of 1897)---
----S. 24-A---Constitution of Pakistan, Art. 10-A---Right to fair
trial--"Scope---Public authority was required to furnish reasons for
every order whether same was executive or judicial.
(h) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 14---Constitution of Pakistan, Art. 199---Constitutional
jurisdiction of High Court---Scope---Interim order---High Court avoid
interference in interlocutory order where no appeal was provided in the
relevant statute against interlocutory order.
Syed Saghir Ahmed
Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi
and others 1996 SCMR 1165; Mohtarma Benazir Bhutto, MNA and Leader of
the Opposition, Bilawal House, Karachi v. The State 1999 SCMR 1447 and
Spectrum Plus Limited and others v. National Westminster Bank PLC
([2005] 2 AC 680) rel.
(i) Constitution of Pakistan---
----Art. 199---Constitutional petition---Scope---Constitutional petition
was not maintainable where factual controversies were involved.
(j) Interlocutory order---
----Meaning---"Interlocutory order" was an order in which no final
verdict was pronounced but an ancillary order was passed with the
intention to keep the same operative till final order/decision was
passed in the pending matter.
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