Interim order fixing maintenance allowance

2020-02-09

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Interim order fixing maintenance allowance From Family Court of minor and Wife; Under section .17A of the West Pakistan family courts act , 1964 during pendency of proceedings before the family court ; financial constraints faced by minors were ameliorated.

2019 CLC 1261 LAHORE-HIGH-COURT-LAHORE
 Syed MUHAMMAD TAQI RAZA NAQVI Versus  JUDGE FAMILY COURT

S. 17-A—interim maintenance , fixation of—Scope—Family Court was bound to fix monthly interim maintenance allowance of the wife or a child on the first date of appearance of defendant.

2020 CLC 131 ISLAMABAD
Dr. AQUEEL WARIS versus IBRAHIM AQUEEL WARIS

Ss. 5, Sched. & 17-A—Constitution of Pakistan, Arts. 4 & 10-A—Suit for recovery of maintenance allowance—interim order—interim maintenance , fixation of—Contention of petitioner-father was that interim maintenance fixed by the Family Court was exorbitant—Validity—Any such order in which financial capacity of father viz-a-viz his own expenses had not been considered properly then interim maintenance fixed by the Family Court would be unjust, perverse, harsh, excessive and fanciful—No appeal had been provided against the order of interim maintenance and in such a manner, father had been deprived of constitutional guarantee of equal protection of law—Order of higher maintenance in favour of minor would create financial problems for a father—When he would not be able to comply with the terms of the interlocutory order, his right to contest the suit on merit would close and would be knocked out by the court—-Interlocutory orders of Family Court could not be assailed in constitutional jurisdiction—Father should not be punished by way of interim maintenance allowance—interim maintenance fixed by the Family Court, in the present case, was exorbitant but High Court in constitutional jurisdiction would not determine the factual aspect of adequacy or inadequacy of said maintenance —Family Court was directed to decide the suit within the period of one month so that father could only be burdened with interim maintenance for one month which would be subsequently merged into final judgment—Constitutional petition was dismissed, in circumstances.


2019 PLD 645 SUPREME-COURT
HUMAN RIGHTS CASE NO.18877 OF 2018

Ss. 2(63), 2(66), 147, 168 & 236—Federal Excise Act (VII of 2005), S. 3 & First Sched. Table II, Sr. No. 6 — Punjab Sales Tax on Services Act (XLII of 2012), Ss. 1(4), 2(38) & 3 & First Sched. Classification No. 9812.1210—Sindh Sales Tax on Services Act (XII of 2011), Ss. 2(97), 3 & 8 & Second Sched. Tariff heading No.9812.1210—Khyber Pakhtunkhwa Finance Act (XXI of 2013), Ss.2(48) & 19 & Sched. II, Serial Nos. 4(5) & 4(9)—Balochistan Sales Tax on Services Act (VI of 2015), Ss. 2(39) & 3 & First Sched. Classification No.98.12.1000—Constitution of Pakistan, Arts. 4(2)(a), 23, 24 & 184(3) & Pt. II, Chapt.1—Human rights case regarding deduction of taxes and other charges by mobile companies in Pakistan—Levy/imposition of advance income tax, Federal excise duty, sales tax on services and service/maintenance charges—Constitutionality and legality—Question as to whether the Supreme Court under Art.184(3) of the Constitution had the jurisdiction to determine the validity of the imposition and collection of taxes—[Per Qazi Faez Isa, J (Majority view): Only once the taxes imposed on customers of cellular companies by the Income Tax Ordinance, 2001, the Federal Excise Act, 2005, the Punjab Sales Tax on Services Act, 2012, the Sindh Sales Tax on Services Act, 2011, the Khyber Pakhtunkhwa Finance Act, 2013, and the Balochistan Sales Tax on Services Act, 2015, were declared contrary to the Constitution and struck down could their imposition and collection from subscribers/customers of cellular telecom companies be stopped—None of the said statutes, which had imposed the taxes, had been declared by a competent Court to be beyond the legislative competence of the legislature which had imposed them nor had it been declared that they contravened any constitutional provision—In exercise of power under Art.184(3) of the Constitution the Supreme Court may pass appropriate orders for the enforcement of Fundamental Rights—Said Fundamental Rights were those conferred by Chap. 1 of Part II of the Constitution; protection from taxation was not listed as one of these Fundamental Rights—Taxes could not be presumed to be against the public interest since taxes were spent for the benefit of the public—Supreme Court was generally slow in entertaining challenges to taxes which were imposed by the appropriate legislature in apparent conformity with the provisions of the Constitution—interim order of the Supreme Court whereby the recovery of taxes by cellular companies was suspended did not record reasons nor did it determine that the imposition of the taxes was without jurisdiction—Supreme Court directed that the recovery of the taxes in question may be resumed by the cellular telecom companies, however, they were not allowed to impose any service/maintenance charge thereon as they had elected not to impose these charges, and that it would be unfair and unjust to demand that the cellular telecom companies make good the loss of the taxes that could not be recovered for the period during which their recovery was suspended by an interim order of the Supreme Court—Human rights case was disposed of accordingly—[Per Ijaz ul Ahsan, J dissenting (Minority view)]: Framers of the Constitution, had intentionally, deliberately and by conscious design placed no restriction on the types of fundamental rights for enforcement of which powers under Art.184(3) of the Constitution could and could not be exercised—As long as a matter met the two conditions, in that, it involved a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chap. I of Part II of the Constitution, it was immaterial whether the violation related to a fiscal matter, taxation, a matter involving property rights, personal freedoms or human liberties, the Supreme Court could and should exercise its powers to come to the rescue of the citizen whose rights may be at risk of being bulldozed, destroyed or encroached upon by the State with all the might and resources available to it—With a population of over 200 million out of which the number of cellular subscribers was approximately 150 million (in mid of the year 2018), there could be no two opinions that the present matter regarding imposition of taxes on, inter alia, topping up of mobile phone balance, affected and had repercussions on the public at large and was not an individual or private grievance—Issue in the present matter was that of alleged unlawful extraction of money in the form of advance tax under S.236 of the Income Tax Ordinance, 2001 from millions of cellular subscribers who did not fall within the relevant tax bracket for the purposes of the said Ordinance—Money being taken from cellular subscribers constituted ‘property’ as envisaged by Arts. 23 & 24 of the Constitution, therefore, the contention that the present matter did not involve the enforcement of any Fundamental Rights was incorrect—Apart from the Fundamental Rights contained in Chapter I of Part II of the Constitution, the deduction and collection of such advance tax was also seemingly a clear contravention of Art. 4(2)(a) of the Constitution—Contention that the Supreme Court did not have jurisdiction under Art. 184(3) of the Constitution to determine the validity of the imposition and collection of taxes which had been imposed pursuant to statutes passed by competent legislatures under the Constitution, was misconceived—While dealing with a matter under Art.184(3) of the Constitution, the Supreme Court was neither bound by the procedural trappings nor limitations of Art.199 of the Constitution, hence, the interim order of the Supreme Court whereby recovery of the taxes in question by the cellular telecom companies was suspended, was neither without jurisdiction, nor did it suffer from any legal, procedural or jurisdictional error, defect, flaw or infirmity whatsoever.

2019 PLD 102 LAHORE-HIGH-COURT-LAHORE
MAQSOOD PERVAIZ CH. Versus  Mst. NAUSHEEN CHAUDHARY


S. 17-A—Non-compliance of order for interim maintenance —Effect—Decree for maintenance —Family Court, duty of—Scope—Family Court was vested with the power to pass an order for interim maintenance at any stage of proceedings in a suit for maintenance under S.17-A of the Family Courts Act, 1964 to be paid to a child by the fourteenth day of each month, failing which the Court may strike off the defence of defendant and decree the suit but such powers were not to be exercised arbitrarily, illegally and whimsically—Even in case of non-compliance of order of interim maintenance , the Family Court was obliged under S.17-A of the Family Courts Act, 1964 to look into the contents of plaint and other supporting documents on the record of the case.

 2019 PLD 102 LAHORE-HIGH-COURT-LAHORE
MAQSOOD PERVAIZ CH. Versus  Mst. NAUSHEEN CHAUDHARY

S. 17-A—Suit for recovery of maintenance allowance filed by daughter who had attained majority—Daughter living separately from father in circumstances where father had already made financial arrangements for daughter—Effect—Daughter, who was aged 35 years and allegedly remained unmarried, filed a suit against her separated parents for recovery of maintenance allowance—Family Court fixed the interim maintenance @ Rs.18,000/- with the direction to the father to pay the maintenance to the daughter—On failure to pay the interim maintenance , the Family Court decreed the suit by invoking the provisions contained in S.17-A of the Family Courts Act, 1964 and directed the father to pay Rs.20,000/- per month with 20% annual increase from the date of institution of the suit till marriage of the daughter—Father contended that he could be held responsible for payment of maintenance to the daughter only when she showed obedience to him; that his daughter was a major and she was avoiding living with him—Validity—Daughter was a major having age of 35 years and she had instituted the suit against both her parents—Daughter lived separate from her father since separation of matrimonial tie of her parents—Admittedly, soon after separation, the father had arranged a source of maintenance for the daughter in the shape of house handed over to the mother, who initially maintained her through the income of rent—Said fact clearly showed that the father was well aware of his responsibilities to maintain her daughter and for that very purpose he had made sufficient arrangements—Strangely, the Family Court had only burdened the father with the liability of maintenance even though the daughter had claimed maintenance from both her parents—Decree for maintenance passed by Family Court was set-aside in circumstances—High Court directed that suit filed by daughter for recovery of maintenance allowance shall be deemed to be pending before the Family Court, which shall decide the same afresh strictly in accordance with law—Constitutional petition was allowed accordingly.

2019 PLD 102 LAHORE-HIGH-COURT-LAHORE
 MAQSOOD PERVAIZ CH. versus  Mst. NAUSHEEN CHAUDHARY

S. 17-A—Suit for recovery of maintenance allowance filed by daughter who had attained majority—Family Court could fix the interim maintenance of a child but the daughter in the present case was admittedly neither of tender age, infant, immature, descendant or young, rather she was aged about 35 years, thus, the order fixing the interim maintenance was not tenable on such score alone—Constitutional petition was allowed accordingly.

2019 CLC 1261 LAHORE-HIGH-COURT-LAHORE
 Syed MUHAMMAD TAQI RAZA NAQVI
 Versus JUDGE FAMILY COURT

S. 17-A—interim maintenance , fixation of—Scope—Family Court was bound to fix monthly interim maintenance allowance of the wife or a child on the first date of appearance of defendant.

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.

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