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Mst. SITWAT CHUGHTAI VS JUDGE, FAMILY COURT, LAHORE, 2009

PLD-LAHORE-HIGH-COURT-LAHORE 18 (2008)
Sept. 11, 2008 LAHORE HIGH COURT LAHORE 2009 PLD 18
2009 PLD-LAHORE-HIGH-COURT-LAHORE 18

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Mst. SITWAT CHUGHTAI VS JUDGE, FAMILY

COURT, LAHORE

P L D 2009 Lahore 18

Before Syed Asghar Haider, J

Mst. SITWAT CHUGHTAI and another---Petitioners

Versus

JUDGE, FAMILY COURT, LAHORE and another---Respondents

 Writ Petition No.11373 of 2008, decided on 11/09/2008.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

---Preamble---West Pakistan Family Courts Act, 1964, is a special statute and has
been enacted with a specific purpose to ensure expeditious settlement and disposal
of disputes relating to marriage and family affairs and also matters connected
therewith.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

---S.17-A---Interim maintenance---Determination---Principle---Family Court has

power under S.17-A of West Pakistan Family Courts Act, 1964, to grant interim main‐
tenance to concerned parties during pendency of proceedings---Section 17-A has
also mandated that such maintenance has to be paid by 14th day of each calendar
month---In case of default, defence of defendant can be struck off and the suit is
decreed---Purpose behind such legislation is to ensure that during pendency of pro‐
ceedings with Family Court, financial constraints faced by minors are ameliorated--
-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---No right of appeal etc, has been provided
against fixation of interim maintenance---Such order is tentative and interim in
nature---Family Court should be more careful and precise in such context to ward
off any injustice.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

---S.17-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interim

maintenance---Enhancement---Factual controversy---Petitioners were aggrieved of
quantum of interim maintenance fixed by Family Court---Plea raised by petitioners
was that Family Court fixed too meagre an amount as interim maintenance whereas
expenses required for maintenance of minor were Rs.25000/- per month---Validity---
No details were given in plaint regarding quantum of school fee and other expenses
of the minor but only a figure of Rs.25000 had been stated; it was impossible to de‐
termine veracity of claim of either party without recording evidence---Such exercise
was not possible in constitutional jurisdiction, especially if finding was only tentat‐
ive and not final and order was also interim in nature---Proper fixation of mainten‐
ance had to be fixed by Family Court after recording of evidence---High Court, in ex‐
ercise of constitutional jurisdiction, declined to interfere with interim maintenance
fixed by Family Court---Petition was dismissed in circumstances.
Makhdoom Ali v. Mst. Razia Sultana and others 2007 MLD 41; Muhammad Sarwar v.
Sughran Bibi and 2 others 1996 MLD 1057 and Mst. Shereen Masood v. Malik Naseem
Hassan Judge, Family Court, Lahore and another 1985 CLC 2758 ref.

F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918,
Khawaja Muhammad Akhtar v. President, Cantonment Board, Sialkot
Cantt./Election Authorty (Tribunal) and another 1981 SCMR 291; Federation of
Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476;
Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through
Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Mst. Mariam
Bai and others v. Islamic Republic of Pakistan and 5 others 1993 SCMR 515; Mushtaq
Hussain Bokhari v. The State and 6 others 1991 SCMR 2136; Mohatrma Benazir
Bhutto M.N.A. and Leader of the Opposition, Bilawal House, Karachi v. The State
1999 SCMR 1447; Mian Ghulam Dastgir Bari v. Rai Salah ud Din and others PLD 1987
Lah. 39 and Habib Arkady Ltd. v. Deputy Collector, Sales Tax Hub, Collectorate of
Customs, Sales Tax and Central Excise, Quetta 2001 PTD 3948 rel.

Ms. Khalida Perveen for Petitioner.

ORDER

SYED ASGHAR HAIDER, J.---Petitioners filed a suit for recovery of dower for peti‐
tioner No.1 and maintenance allowance for petitioner No.2. Respondent No.2
entered appearance, filed a written statement, contested the suit, of the pleadings of
the parties issues were framed and the learned Family Court also fixed interim
maintenance in the sum of Rs.1200 per month' for petitioner No.2. Petitions are ag‐
grieved of fixation of interim maintenance and pray that the same may be
enhanced, hence the instant petition.

2. Learned counsel contended that respondent No.2 is a man of means and his
monthly salary is around Rs.1,25,000, petitioner No.2, is a minor and a school going
boy, his boarding, lodging and ancillary expenses are about Rs.25,000 per month to
which the petitioner No.1 has to cater, therefore, the amount of Rs.1200 fixed as in‐
terim maintenance by the learned Family Court is too meagre to defray these
expenses, as such it be enhanced. To further augment her submissions, learned
counsel submitted that this court has ample powers to interfere in interlocutory or‐
ders even if they are tentative in nature. To fortify her contention, the learned coun‐
sel referred to Makhdoom Ali v. Mst. Razia Sultana and others 2007 MLD 41,
Muhammad Sarwar v. Sughran Bibi and 2 others 1996 MLD 1057 and Mst. Shereen
Masood v. Malik Naseem Hassan Judge, Family Court, Lahore and another 1985 CLC
2758.
3. Heard.

4. The Family Court Act, 1964 is a special statute and has been enacted with a spe‐
cific purpose to ensure expeditious settlement and disposal of disputes relating to
marriage and family affairs and also matters connected therewith. It, inter alia, has
bestowed upon the Family Court powers under section 17-A of the Act ibid to grant
interim maintenance to the concerned parties during the pendency of the
proceedings. It also has been mandated that such maintenance shall be paid by the
14th day of each calendar month and in case of default the defence of the defendant
shall be struck off and the suit decreed. The purpose behind this legislation is to en‐
sure that during pendency of these proceedings with the Family Court financial
constraints faced by the minors are ameliorated. The question now arises that does
the Family Court have un-fettered and un-bridled powers to fix interim mainten‐
ance at its discretion or is it required to proceed on pragmatic, rationale and judicial
basis? The answer, of course, is that it should proceed on the latter. It should
broadly look into the social status of the parties, the earning of the defendant, his
capacity to pay, the requirements of the minor and on this touchstone fix interim
maintenance. It also is noteworthy that no right of appeal etc. has been provided
against this fixation, because the order is tentative and interim in nature, therefore,
the Family Court should be even more careful and precise in this context to ward off
any injustice. However, this order is subject to final review after recording evidence
of both parties, thus the quantum of maintenance can thereafter be easily determ‐
ined and fixed accurately. The Court has uninhibited powers to enhance or decrease
the quantum of maintenance after appraising deciphering and examining the evid‐
ence produced during trial. Therefore, findings qua interim maintenance normally
cannot be interfered with, if the same are fixed upon the parameters stated above.
In the present matter, in the plaint, a demand for maintenance for the minor has
been raised in the sum of Rs.25,000, while controverting the assertion of the
plaintiffs in para.4 of the written statement the salary of the defendant in the sum of
Rs.1,25,000 is admitted, however a detail of his expenses which comes to Rs.1,10,440
has been stated. Unfortunately, there are no details in the plaint regarding the
quantum of school fee and other expenses of the minor but only a figure of
Rs.25,000 has been stated, therefore, it is impossible to determine the veracity of the
claim of either party, without recording evidence. This exercise is not possible in
the present jurisdiction, especially if the findings is only tentative and not final and
the order is also interim in nature. And also because proper fixation of maintenance
has to be fixed by the Family Court after recording of evidence. I am fortified in this
context by the following precedents F.D. Souza v. Karachi Building Control Authority
and 3 others 1989 SCMR 918, Khawaja Muhammad Akhtar v. President, Cantonment
Board, Sialkot Cantt./Election Authority (Tribunal) and another 1981 SCMR 291, Fed‐
eration of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991
SC 476, Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through
Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618, Mst. Mariam
Bai and others v. Islamic Republic of Pakistan and 5 others 1993 SCMR 515, Mushtaq
Hussain Bokhari v. The State and 6 others 1991 SCMR 2136, Mohatrma Benazir
Bhutto M.N.A. and Leader of the Opposition, Bilawal House, Karachi v. The State
1999 SCMR 1447, Mian Ghulam Dastgir Bari v. Rai Salah ud Din and others PLD 1987
Lah. 39 and Habib Arkady Ltd. v. Deputy Collector, Sales Tax Hub, Collectorate of
Customs, Sales tax and Central Excise, Quetta 2001 PTD 3948.

5. As far as the precedents referred to by the learned counsel for the petitioner are
concerned, they are persuasive and not binding and even distinguishable on facts,
thus of not much help to the cause of the petitioner.

6. But as the petition emanates of a family matter and admittedly the minor's need
have to be catered to in a reasonable manner to ward off any hardship, therefore,
the Family Court is directed to conclude trial within two months from today, in ac‐
cordance with law, on merits, without fail. It shall keep especially in mind the needs
of the minor and his monthly expenses and also the monthly salary of the defendant
and the parameters referred to above, before fixing the final maintenance of the
minor.

With these observations the petition is dismissed in limine.

M.H./S-99/LPetition dismissed.

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