2016-10-16

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Interim Maintenance of Minor

2016 MLD 618 SHARIAT-COURT-AZAD-KASHMIR

Ss. 5, Sched. & 14—Suit for recovery of maintenance allowance—Execution petition—interim order—Appeal—Maintainability—Family Court ordered to pay amount of decretal amount in installments—Contention of judgment-debtor was that nothing was outstanding against him—Validity—Court below had calculated the amount on the basis of its record—Nothing was on record to rebut the conclusion arrived at by the court below—Impugned order being interim order did not fall within the definition of a “decree” or a “judgment”—Appeal was not competent in circumstances—Appeal was dismissed.

Citation Name : 2016 PLD 73 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ALI ADNAN DAR
Side Opponent : JUDGE FAMILY COURT
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.

Citation Name : 2016 PLD 73 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ALI ADNAN DAR
Side Opponent : JUDGE FAMILY COURT
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.

Citation Name : 2016 CLC 81 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD NADEEM
Side Opponent : ANEESA BIBI
Ss. 14 & 17-A—-Constitution of Pakistan, Art. 199—Constitutional petition—Suit for maintenance —Appeal—Appellate court upheld decree of maintenance of rupees thirty-five hundred per month on ground that no appeal was maintainable against maintenance for less than rupees five thousand—Validity—maintenance as a whole would determine pecuniary jurisdiction of appellate court—Under S.17-A of West Pakistan Family Courts Act, 1964, if defendant had failed to pay interim maintenance fixed by trial court, then not only right of defence could be struck off but decree could also be passed—Appellate court had incorrectly found that order of maintenance passed by Family Court was interim order under S.14(3) of West Pakistan Family Courts Act, 1964, therefore no appeal could be preferred against the same—High Court, setting aside impugned judgment and decree, directed appellate court to decided appeal on merits—Constitutional petition was allowed in circumstances.

Citation Name : 2016 CLCN 26 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Dr. AAQIB HABIB MALIK
Side Opponent : JUDGE FAMILY COURT
S. 5, Sched—Constitution of Pakistan, Art. 199—Constitutional jurisdiction, exercise of—Scope—Suit for recovery of maintenance allowance, dower and dowry articles—Application for summoning of witnesses/scribe of receipts of dowry articles—Wife produced purchase receipts of dowry articles during her evidence—Husband/petitioner moved an application for summoning of witnesses/scribe of receipts produced in evidence—Family Court observed that objections, relevancy, admissibility and evidentiary value of the receipts of dowry articles would be decided at appropriate stage and defendant had not mentioned name, address and sufficient particulars of any witness to whom he wanted to summon through process of court; however, defendant-husband would be at liberty to produce any evidence/witness during his own evidence subject to all just and legal exceptions—Validity—Right of defendant-husband to produce evidence had not been closed by the Trial Court—Defendant-husband would be at liberty to produce any witness at his turn while recording evidence—interim order passed by the Family Court should not be brought to superior courts to obtain fragmentary decisions which would harm the advancement of fair play and justice, curtailing remedies available under the law—Husband had not been prejudiced by the impugned order—Constitutional jurisdiction was not to be exercised in routine but only to foster the ends of justice—Constitutional petition being not maintainable was dismissed in limine

Citation Name : 2016 MLD 742 KARACHI-HIGH-COURT-SINDH
Side Appellant : TALHA ASIF TAUFIQ
Side Opponent : VTH ADDITIONAL DISTRICT JUDGE
S. 17-A—-Constitution of Pakistan, Art. 199—Constitutional petition—Maintainability—maintenance of minor—Non-compliance of interim order of maintenance —Power of Family Court to decree suit—Averments of plaint not denied in written statement—Presumption—Conduct of father as to payment of maintenance —Relevance—Plaintiff/wife after dissolution of marriage, along with minor son, filed suit for recovery of maintenance , recovery of dower amount and dowry articles—Family Court passing order under S. 17-A of Family Courts Act, 1964 fixed interim maintenance of minor—Defendant filed application and later Constitutional petition for modification of said interim order, which were dismissed—Family Court decreed the suit for non-compliance of said interim order of maintenance —Defendant took plea that trial court had not considered his financial position while fixing maintenance —Validity—Family Court under S. 17-A of Family Courts Act, 1964 was empowered to grant interim maintenance and in case of non-compliance of interim order, court might struck off defence of defendant and also pass final decree—Under S. 17-A of Family Courts Act, 1964, right of defendant as to further adjudication of question of maintenance was contingent right subject to fulfilment of contingency of S. 17-A—If defendant desired to contest suit, he was required to comply with interim order passed by Family Court under S.17-A of Family Courts Act, 1964—Plaintiff had specifically stated in plaint all expenses being incurred by her family on minor and quantum of income being earned by defendant—Claim or allegation of fact in plaint, if not denied specifically or by necessary implications in written statement, would be taken to have been admitted by defendant—As averments made in plaint as to income of defendant had not been denied by him either specifically or by necessary implication, the same were, deemed to have been admitted—Conduct of defendant (husband) regarding non-payment of interim maintenance was also relevant which showed that he had come to court with unclean hands, as he had not complied with interim order of maintenance —-Constitutional jurisdiction of discretionary character could not be invoked as a matter of routine or be used as alternate of appeal or revision—Constitutional petition was dismissed in circumstances.

Citation Name : 2016 MLD 742 KARACHI-HIGH-COURT-SINDH
Side Appellant : TALHA ASIF TAUFIQ
Side Opponent : VTH ADDITIONAL DISTRICT JUDGE
S. 17-A—-Scope—Non-compliance of interim order of maintenance —Power of Family Court—Family Court under S.17-A of Family Courts Act, 1964 is empowered to grant interim maintenance and in case of non-compliance of interim order, court may struck off defence of defendant and also pass final decree—Under S.17-A of Family Courts Act, 1964, right of defendant as to further adjudication of question of maintenance is contingent right subject to fulfillment of contingency of S. 17-A.

Citation Name : 2015 YLR 1433 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : MUHAMMAD NAZIM
Side Opponent : MUNEER AKHTAR
S. 5, Sched.—Azad Jammu and Kashmir interim Constitution Act (VIII of 1974), Ss. 42 & 44—Writ petition—maintenance allowance to wife—Scope—Capacity of husband to pay maintenance as fixed—Non-framing of issue—Effect—Contention of husband was that wife had voluntarily left his house and she was not entitled for maintenance allowance—Suit was decreed concurrently—Validity—Wife was entitled for maintenance if she had obeyed the husband and was ready to live in his house but if she had left the house of husband voluntarily then wife was not entitled for maintenance —Duty of husband to maintain his wife was conditional upon performance of marital obligations—Wife was bound to guard the reputation, property of her husband in his absence and also her own virtue—maintenance allowance should be according to the financial position of husband—Family Court was bound to resolve the question of capacity of husband to pay maintenance —No issue, in the present case, was framed with regard to capacity of husband whether he had a source to pay the maintenance fixed by the Family Court—Non-framing of issues was not vital for a case if parties were vigilant on the point, if however the parties had led the evidence on the said issue then question could be resolved without framing the issue—Both the parties had led the evidence but Family Court had failed to resolve the question with regard to capacity of husband to pay maintenance —Family Court was bound to record findings with regard to capacity of husband whether he was in a position to pay maintenance charges claimed by the wife or not—Supreme Court had powers to decide any issue if there was evidence of the parties on record—Remand of case would further prolong the litigation and there would be undue burden on the parties—Both the courts below had not considered that husband had meager source to maintain his wife—No mis-reading or non-reading of evidence was pointed out—Attitude of husband towards the wife was cruel and he had ousted her from house after beating—Wife and minor children were entitled to maintenance —Husband or father could not be burdened for payment of maintenance beyond his capacity—Husband in the present case, was a Rickshaw driver and due to rising costs of living maintaining a wife and two minors in a meager amount of Rs. 5,000 per month was difficult but wife herself had demanded Rs.5000—Family Court had correctly concluded that wife/children were entitled for maintenance of Rs. 5,000 per month and defendant was in a capacity to pay the said amount—Appeal was dismissed in circumstances.

Citation Name : 2015 YLR 170 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : Mst. AMREEN
Side Opponent : MUHAMMAD KABIR
S. 5, Sched.—Azad Jammu and Kashmir interim Constitution Act (VIII of 1974), S. 44(2)—Suit for recovery of maintenance allowance—Past Main-tenance—Entitlement—No mis-reading or non-reading of evidence was pointed out with regard to fact of cruelty and ousting the wife from the house by the husband—Findings of Family Court and Shariat Court that wife had failed to prove that she was treated with cruelty and ousted from the house were based on evidence—Family Court was bound to award past maintenance to the minor when she was living with her mother since birth but no reason had been given for not awarding the same—Minor was entitled to maintenance allowance from the date of her birth—Husband was working abroad and he was maintaining his second wife who was a resourceful person—Court had power to grant maintenance keeping in view the financial position of father and his economic resources—maintenance allowance awarded to the minor was meagre keeping in view the rising cost of living and same was enhanced from Rs.2,000 per month to Rs. 4,000 per month as prayed for since from the date of birth of minor—Appeal was accepted partly to the extent of minor and was dismissed to the extent of wife.

Citation Name : 2013 YLR 1839 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD MAJEED
Side Opponent : JUDGE FAMILY COURT
Ss.14 & 17-A—Constitution of Pakistan, Art. 199— Constitutional petition—Maintainability— interim maintenance allowance—Interlocutory order—Such order did not have the effect of a final order, which had to be passed ultimately by the Family Court after recording evidence and assessing the paying capacity of the father/husband—Unless an order bears characteristics and effect of a final order, it could not be subjected to judicial scrutiny in proceedings under Art.199 of the Constitution.

2014 CLC 860 LAHORE-HIGH-COURT-LAHORE

Ss. 17-A & 5, Sched.—Constitution of Pakistan, Art. 199—Constitutional petition—Maintainability—Suit for recovery of maintenance allowance—Interim maintenance was fixed by the family court but same was not paid by the husband and his defence was struck off—Contention of husband was that wife had refused to perform matrimonial obligations and she was not entitled for any maintenance allowance—Suit was decreed concurrently—Validity—Constitutional petition was not maintainable as Judge family court was not arrayed as one of the respondents—Husband did not challenge the validity of order by virtue of which interim maintenance was fixed—Husband was estopped to question the correctness of such order through present constitutional petition—Impugned order could not be declared to have been passed without jurisdiction and lawful authority—family court had rightly insisted upon implementation of order for payment of interim maintenance—Section 17A of West Pakistan family court s act , 1964 empowered the family court to strike off defence of husband who had failed to pay interim maintenance and decree the suit without recording evidence—Suit was rightly decreed by the court s below—Constitutional petition was dismissed in circumstances.

2013 YLR 965 LAHORE-HIGH-COURT-LAHORE

S. 17A —Constitution of Pakistan, Art. 199—Constitutional petition against interim order—Maintainability—Conditions—Interim maintenance, order for—Suit for recovery of maintenance allowance—Husband assailed order of family court whereby he was ordered to pay interim maintenance during pendency of proceedings; on the ground that the quantum of maintenance was exorbitant—Validity—Husband had contended that he had recently been sacked from his job—Disputed questions of fact s regarding job, source of income and salary of the husband had been raised which could not be resolved in the Constitutional Jurisdiction of High court and it was not possible to determine the veracity of claims of husband without recording evidence—Such exercise could not be undertaken in the Constitutional Jurisdiction of High court especially when the finding was only tentative in nature and not final and impugned order was interim in nature—Under Art. 199 of the Constitution, petition against interim order was maintainable if the same was void ab inito, without jurisdiction or had attained status of a final order—family court had jurisdiction to fix interim maintenance allowance, therefore, the impugned order did not fall within such categories—Legislature had under S. 14(3) of the West Pakistan family court s act , 1964 had specifically prohibited filing of appeal against interim order and if Constitutional Petition was allowed to be filed against such order, same would tantamount to defeating and diverting intent of the legislature—Petitioner had an alternate remedy available to him by challenging impugned order in appeal which he may file against ultimate order /judgment if passed against husband—Constitutional petition, being not maintainable, was dismissed in circumstances.

2013 YLR 965 LAHORE-HIGH-COURT-LAHORE

S. 17A —Interim maintenance of minor—Object and purpose—Purpose behind S.17A of the West Pakistan family court s act , 1964 was to ensure that during pendency of proceedings before the family court ; financial constraints faced by minors were ameliorated.

2013 PLD 64 LAHORE-HIGH-COURT-LAHORE

Ss. 17A & 12A, proviso—Constitution of Pakistan, Art. 199—Constitutional petition—Interpretation of Ss.17A and 12A, proviso, West Pakistan family court s act , 1964—Interim order fixing maintenance allowance—Time period for which such interim order would remain valid—Scope—Joint reading of Ss.17A and 12A of West Pakistan family court s act , 1964 revealed that when family court was made competent to pass an interim order for payment of maintenance allowance, it was also made incumbent upon the family court to dispose of the case pending before it within a period of six months from the date of institution—Order passed under S.17A of the West Pakistan family court s act , 1964 would be, at most, effective for a period of six months, which time had been allocated by virtue of S.12A for final disposal of a lis pending before family court —When the maximum age of an interim order passed under S.17A of the West Pakistan family court s act , 1964 expired, continuation of proceedings before family court , would violate provisions of S.12A of the said act —Age of an order passed under S.17A of West Pakistan family court s act , 1964 for interim maintenance would at maximum be six months and if proceedings were not concluded within such time in the main suit wherein interim order was passed, the family court should not insist upon the implementation of the order of interim maintenance—High court observed that family court had to report to the High court for non-implementation of S.12A of West Pakistan family court s act , 1964 or in case of failure of family court to do so, either party would have a right to bring to notice of High court such illegality being continued in the family court and High court shall then, either under proviso to S.12A of the said act or under Art.199 of the Constitution, pass appropriate order and reconsider quantum of maintenance—Constitutional petition was disposed of accordingly.