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2012 Y L R 1214
[Lahore]
Before Abdul Waheed Khan, J
MUHAMMAD RIAZ---Petitioner
Versus
Mst. TAHIRA PARVEEN and others---Respondents
Writ Petition No.13224 of 2011, decided on 2nd February, 2012.
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----Ss. 17-A, 5 & Sch.----Civil Procedure Code (V of 1908), S. 2(2)----Constitution of Pakistan, Art.
199---Constitutional Petition---Decree---Definition---Suit for recovery of maintenance allowance of minors
and dower---Interim order for maintenance and striking off defence---Jurisdiction of Family Court, exercise
of---Family Court struck off defence of husband (petitioner) to the extent of maintenance allowance of
minors on his failure to pay the interim maintenance allowance to minors fixed by the Family Court----
Family Court decreed the suit for recovery of maintenance allowance for minors----Validity---Family Court
had jurisdiction under S.17-A of the West Pakistan Family Courts Act, 1964 to decree the case on the failure
of the husband to provide interim maintenance allowance---Term "decree" was not defined in the West
Pakistan Family Courts Act, 1964 and definition for the same was given in S.2(2) of the C.P.C. as a "formal
expression of an adjudication, which, so far as regards to the court expressing it, conclusively determines the
rights of the parties with regard to all or any of the matters in the suit and may be either preliminary or final
[..]."-----Word "adjudication" referred to a judicial determination of a matter in controversy, dispelling the
impression of arbitrariness---Impugned order of the Family Court was lacking in such judicial determination
of the matter in controversy---High Court set aside impugned order of Family Court and case was remanded
to Family Court with the direction to the Family Court to consider the financial condition of the husband---
Constitutional petition was allowed, accordingly.
(b) Civil Procedure Code (V of 1908)---
----S. 2(2)---"Adjudication", meaning of---Connotation---"Adjudication" referred to a judicial determination
of a matter in controversy, dispelling the impression of arbitrariness.
Muhammad Amir Malik for Petitioner.
Muhammad Sarwar Qamar, for Respondents Nos.1 to 3.
ORDER
ABDUL WAHEED KHAN, J.---Brief facts are that Mst. Tahira Parveen and the minors Muhammad
Ramzan and Abdul Rehman filed a suit for recovery of maintenance allowance and also for the recovery of
dowry articles or in the alternative price thereof. The Family Court fixed? the? interim? maintenance?
allowance? of the minors, namely, Muhammad? Ramzan? and? Abdul? Rehman? at? the? rate? of Rs.1300?
per? month? vide? order? dated? 2-6-2010. The petitioner/defendant could not pay the interim maintenance
allowance and the Family Court? vide? its? order? dated? 22-9-2010 struck off his light of defence to the
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extent of the claim of the minors for maintenance allowance and fixed the maintenance allowance of minors
at the rate of Rs.5,000 per month each under section 17(a) of The Family Court Act. The petitioner/defendant
filed an appeal against the aforementioned order, which was dismissed by the Appellate Court vide judgment
dated 12-4-2011. Feeling aggrieved of the said order and the judgment, the petitioner/defendant has invoked
the constitutional jurisdiction of this Court.
2. Counsel for the petitioner submits that petitioner is labourer by profession and an excessive maintenance
allowance has been fixed by the Family Court, which is beyond the source of his income.
3. Counsel for the respondents submits that petitioner is under obligation to provide maintenance allowance
to the minors and that allowance fixed by the Family Court is not excessive.
4. Arguments of counsel for the parties have been heard.
5. The Family Court passed an order on 2-6-2010 for payment of the interim maintenance allowance at the
rate of Rs.1300 per month per head, but the petitioner/defendant could not comply with the same. His right of
defence was struck off on 22-9-2010 to the extent of claim of the minors for maintenance allowance. Through
the same order, the suit was decreed in favour of the minors namely Muhammad Ramzan and Abdul Rehman
at the rate of Rs.5,000 per month each under section 17(a) of the Family Court Act, 1964.
6. Section 17(a) of The Family Court Act, 1964 is relevant and it is deemed appropriate to quote the same
herein under:--
"17A. ["Interim order for maintenance:--
At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for
maintenance, where under the payment shall be made by the fourteenth of each month, failing which the
Court may strike off the defence of the defendant and decree the suit."
7. The Family Court has jurisdiction under section 17-A of The Family Court Act, 1964 to "decree" the case
for the failure of the defendant to provide interim maintenance allowance.
The term "decree" is not defined in the Family Court Act, 1964. It's definition is given in section 2(2), CPC.,
which is reproduced as under:--
(2) "Decree" means the formal expression of an adjudication, which, so far as regards the Courts expressing
it, conclusively determines the rights of the parties with record to all or any of the matters in controversy in
the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint 1(the
determination of any question within section 144, and an order under Rule 60, 98, 99, 101 or 103 of Order
XXI) but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) Any order of dismissal for default. Explanation----"
8. The word "adjudication" refers to a judicial determination of a matter in controversy, dispelling the
impression of arbitrariness.
9. It is observed that judicial determination of the mater in controversy is lacking in the impugned order and
thus while setting aside the impugned order, the matter is remanded to the Family Court with a direction to
first consider the financial condition of the petitioner/ defendant and then to set at rest the claim of
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respondent/plaintiff, through a speaking order.
K.M.Z./M-57/L??????????????????????????????????????????????????????????????????????????????????
Petition allowed.
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