Stereo H.C.J.D.

A 38
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE, MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
W.P. No.278 of 2022
Muhammad Imran Versus Judge Family Court, etc.

JUDGMENT

Petitioner by: Malik Muhammad Siddique Kamboh,

Advocate.

Respondent No.2 Mr. Rizwan Ahmad Khan, Advocate.

by:
Zafar Iqbal, ASI.

Date of hearing: 20.1.2022.

MUHAMMAD SHAN GUL, J:- Through this judgment

the titled constitutional petition is sought to be decided.

2. Facts in brief are that respondent No.2/Ambreen Aslam,

tied the matrimonial knot with the petitioner, Muhammad

Imran, on 08.9.2017 and the marriage resulted in the birth of

minor Muhammad Umais who at present resides with

respondent No.2/Ambreen Aslam. Things could not work out

between the husband and wife and allegedly no matrimonial

harmony existed between the couple and which resulted in the

separation of the couple with respondent No.2 coming to the

house of her parents along with her minor son to reside there.

According to respondent No.2, the petitioner was asked, time

and again, to provide the necessary sustenance allowance but he

persisted in his denial and this is what compelled respondent

No.2/Ambreen Aslam to file a suit seeking maintenance from

the petitioner.
W.P. No.278 of 2022 2

3. A suit was filed. Issues were framed. The Judge Family

Court thereafter awarded the following relief to respondent

No.2:-

“i). Minor plaintiff No.2 is held entitled to recover

maintenance allowance @ Rs.4000/- (four
thousand) per month from the date of
institution of this suit till his future period/legal
entitlement along with 10% annual increase.
Interim maintenance (if any) paid during the
pendency of the suit shall be adjusted. The
increment on basic amount will start after
every calendar year.
ii). Plaintiff No.1 is held entitled to recover breast
feedings maintenance allowance @ Rs.5000/-
(five thousand) per month from the birth of
minor for a period of 2 years.
iii). Plaintiff No.1 is held entitled to recover
Rs.30000/- (thirty thousand) as delivery
expenses.
iv). Remaining claim of the petitioner (if any) is
refused.”

4. Aggrieved and dissatisfied, the petitioner has approached

this Court by means of the present petition. Learned counsel for

the petitioner, at the outset, submits that the petition would be

pressed only to the extent of award of breast feeding

maintenance allowance and that the petitioner did not want to

pursue the petition with respect to the award of general

maintenance allowance amounting to Rs.4000/- per month or

for that matter with respect to imposition of Rs.30,000/- as

delivery expenses. It is, therefore, clear that the present

petition is only being entertained with respect to the grant

of breast feeding maintenance allowance amounting to

Rs.5000/- per month.

W.P. No.278 of 2022 3

5. Learned counsel for the petitioner submits that the

petitioner takes exception to the fact that the judgment under

challenge is irreconcilable because while deciding issue No.1

“Whether the plaintiffs are entitled to recover

maintenance allowance from the defendant, if so, at what
rate and for what period?OPP”

the Judge Family Court discarded the plea of desertion of

respondent No.2 by the petitioner as having not been proved but

the same Judge Family Court has been swayed by the same

consideration while dealing with another issue (2-A):

“Whether the plaintiff is entitled to recover maintenance

allowance of breast feeding @ Rs.15000/- per month
from the defendant?OPD”

and by considering the plea as nearly correct. Adds further that

no reasons have been cited in the judgment for the grant of

breast feeding maintenance allowance and that the trial court

ought to have employed the provisions of Section 17-A(4) of

the Family Courts Act, 1964 for the purpose of gauging and

determining the financial health and position of the petitioner

before passing the judgment under challenge.

6. Heard. Record perused.

7. Section 17-A Family Courts Act, 1964 was amended and

substituted by way of the Punjab Family Courts (Amendment)

Act, 2015 (Act XI of 2015) w.e.f. 18.3.2015 and Section 17-A

in its present form reads as under:-

W.P. No.278 of 2022 4

“17A. Suit for maintenance.– (1) In a suit for

maintenance, the Family Court shall, on the date of the
first appearance of the defendant, fix interim monthly
maintenance for wife or a child and if the defendant fails
to pay the maintenance by fourteen day of each month, the
defence of the defendant shall stand struck off and the
Family Court shall decree the suit for maintenance on the
basis of averments in the plaint and other supporting
documents on record of the case.

(2) In a decree for maintenance, the Family Court

may:

(a) fix an amount of maintenance higher than

the amount prayed for in the plaint due to afflux of
time or any other relevant circumstances; and

(b) prescribe the annual increase in the

maintenance.

(3) If the Family Court does not prescribe the annual

increase in the maintenance, the maintenance fixed by the
Court shall automatically stand increased at the rate of
ten percent each year.

(4) For purposes of fixing the maintenance, the Family

Court may summon the relevant documentary evidence
from any organization, body or authority to determine
the estate and resources of the defendant.”

8. What is evident from a perusal of this relatively recently

added provision of law is clearly discernible from a perusal of

sub-section (4) of this Section and which clearly allows the trial

court the facility of summoning relevant documentary evidence

to determine the estate and resources of a husband who is to be

saddled with the responsibility of providing maintenance

allowance.

9. A perusal of the judgment under challenge indicates

manifestly that no such enquiry as is envisaged in Section

17-A(4) was even remotely undertaken by the Judge Family

Court and in fact no effort for initiating any such enquiry

or fact finding was even initiated. The learned Judge Family

W.P. No.278 of 2022 5

Court ought to have probed and examined the financial

status, worth of estate of and availability of resources with

the petitioner before deciding the question of breast feeding

maintenance. Learned Judge Family Court ought to have

appreciated the fact that such precedent enquiry was

facilitated by the amended provision itself. The learned

Judge Family Court ought to have also appreciated the

intent of the legislature in bringing about an amendment in

Section 17-A.

10. This amendment was brought about to arrest the near

unbridled discretion obtaining with a Judge Family Court

in the matter of fixation of quantum of maintenance. This

safety valve i.e. Section 17-A(4) was specifically added for

the purpose of ensuring that there is no arbitrary,

whimsical or to use legalese, subjective exercise of discretion

----- what with the Qanun-e-Shahadat Order, 1984 and the

Code of Civil Procedure, being explicitly inapplicable to

proceedings before a Judge Family Court. To structure

such discretion by means of provision of statute based

facilitation, a Judge Family Court was extended the space

and potential of trying to gauge by means of various

indicators (pay, salary, possessions, ownership, estate, tax

statement, etc.) nee all relevant considerations (Aka Lord

Greene in the case of Wednesbury Corporation) the amount

of maintenance to be imposed upon a defendant.

W.P. No.278 of 2022 6

11. In the matter before this Court, the learned Judge

Family Court has rather attempted a complete nose-dive

and done exactly the reverse. Without making any attempt

at employing Section 17-A(4), the learned Judge Family

Court has simply proceeded on a frolic of his own and

without any enquiry or investigative exercise imposed the

additional burden, so to speak, of breast feeding

maintenance allowance on the petitioner. It is not as if the

learned Judge Family Court has passed an interim

maintenance allowance order which shall merge in final

judgment, rather a final judgment has been delivered

without undertaking any such enquiry as is envisaged in

Section 17-A(4). This is fatal, crucial and of the essence

when viewed in the context of what follows in the narrative

ahead and quite erroneous and bad in law in view of the

judgments of the Superior Judiciary.

12. While the learned Judge Family Court has discarded the

plea of desertion taken up by respondent No.2, Ambreen

Aslam, while deciding the question of general maintenance

(paragraph No.9 of the impugned judgment refers), the learned

Judge Family Court has conspicuously courted and relied on the

same plea by treating it as true and correct while awarding the

relatively unique breast feeding maintenance allowance.

13. The above should not be understood to mean that

such breast feeding maintenance allowance cannot be

granted but the impugned judgment in so far as it adopts

W.P. No.278 of 2022 7

different strokes for the purpose of appreciating and

evaluating the same piece of evidence while deciding two

issues (issue No.1 and issue No.2-A), comes across as an

oxymoron, irreconcilable and, therefore, erroneous.

14. Here we must stop to appreciate that breast feeding

maintenance allowance is recognized jurisprudentially. Such

allowance is recognized as being in line with the welfare of the

child and it has been held that if a mother is not awarded such

an allowance the sustenance of the child may suffer. Judgments

reported as “Muhammad Aslam v. Muhammad Usman and

others” (2004 CLC 473), “Captain sm. Aslam v. Mst. Rubi

Akhtar” (1996 CLC 1) and “Naveed Ahmed v. Mst. Mehwish

Riaz and others” (2019 CLC 511) clearly recognize,

acknowledge and allow such breast feeding maintenance

allowance to be awarded and which judgments clearly

acknowledge such breast feeding maintenance allowance as

legally, morally and religiously correct.

15. In “Naveed Ahmed v. Mst. Mehwish Riaz and others”

(2019 CLC 511), a learned Single Bench of this Court at

paragraph No.5 has held as follows:-

“5. Almighty Allah through various verses of the

Holy Qur'an has laid down the basic rules on which the
rights of the child are based, in the above-noted
circumstances. The English translation as well as
commentary of Ayat No.233 of Surah Baqara by Mr.
Abdullah Yusuf Ali in Volume-I (Two-Volume Edition -
1977) at page 93 is reproduced as follows:-
Translation:
"The mothers shall give suck to their
offspring for two whole years, if the father
desires, to complete the term. But he shall
bear the cost of their food and clothing on
W.P. No.278 of 2022 8

equitable terms. No soul shall have a burden

laid on it greater than it can bear. No mother
shall be treated unfairly on account of her
child, nor father on account of his child. An
heir shall be chargeable in the same way if
they both decide on weaning, by mutual
consent, and after due consultation, there is
no blame on them. If ye decide on a foster-
mother for your offspring, there is no blame
on you, provided ye pay (the mother) what ye
offered, on equitable terms. But fear Allah
and know that Allah sees well what ye do."
Commentary:
"As this comes in the midst of the regulations
on divorce, it applies primarily to cases of
divorce, where some definite rule is necessary,
as the father and mother would not, on account
of the divorce, probably be on good terms, and
the interests of the children must be
safeguarded. As, however, the wording is
perfectly general, it has been held that the
principle applies equally to the father and
mother in wedlock : each must fulfill his or her
part in the fostering of the child. On the other
hand, it is provided that the child shall not be
used as an excuse for driving a hard bargain
on either side. By mutual consent they can
agree to some course that is reasonable and
equitable, both as regards the period before
weaning (the maximum being two years) and
the engagement of a wet-nurse or (by
analogy) for artificial feeding. But the
mother's privileges must not be curtailed
simply because by mutual consent she does
not nurse the baby. In a matter of this kind
the ultimate appeal must be to godliness, for
all legal remedies are imperfect and may be
misused."
The English translation as well as commentary
of Ayat No.6 of Surah Talaq by Mr. Abdullah Yusuf
Ali in Volume-III at pages 1564 and 1565 (Three-
Volume Edition - 1969) is reproduced as follows:-
Translation:
"Let the women live (In 'iddat,) in the same
style as ye live, according to your means :
Annoy them not, so as to restrict them. 5516
And if they carry (life in their wombs), then
5517
spend (your substance) on them until they
deliver their burden : and if they suckle your
(offspring), give them their recompense : and
take mutual counsel together, according to
what is just and reasonable. And if ye find
yourselves5518 in difficulties, let another
woman suckle (the child) on the (father's)
behalf.5519"
Commentary:
"5517. If there is pregnancy, a sacred third
life comes on the scene, for which there is
added responsibility (perhaps added hope of
W.P. No.278 of 2022 9

reconciliation) for both parents. In any case

no separation is possible until after the child
is born. Even after birth, if no reconciliation
between parents is possible, yet for the
nursing of the child and for its welfare the
care of the mother remains the duty of the
father, and there must be mutual counsel
between him and the mother in all truth and
sincerity.
5518. "If ye find yourselves in difficulties":
e.g., if the mother's milk fails, or if her health
fails, or if any circumstance arises which bars
the natural course of the mother nursing her
own child. There may be psychological
difficulties also.
5519. That is, the father must stand all
expenses, without cutting down the reasonable
allowance to which the mother is entitled in the
circumstances."
The above clearly shows that even the foster mother is
to be paid for her services. The right of such a child is
so intertwined with the mother that it is imperative for
the mother to be duly supported, provided for and
properly looked after for the period she feeds the
child.

16. In “Muhammad Aslam v. Muhammad Usman and others”

(2004 CLC 473), it has been held at paragraph No.8 as follows:

‫ترہمج۔اورےچبوایلوعرںیتدودھالپوںیاےنپوچبںوکدوترسوپرےوجوکیئاچےہہکوپریرکےدودھیکدمت‬
‫اورڑلےکواےلینعیباپرپےہاھکبااورڑپکاانوعروتںاکوماقف دوتسرےکفیلکتںیہندیاجیتیسکوکرگماسیک‬
‫اجنگشئےکوماقفہناصقنندبااجےئامںوکاسےکہچبیکوہجےساورہناسوکسجاکوہہچبےہینعیباپوکاسےک‬
‫ہچبیکوہجےساورواروثںرپیھب یہی الزمےہ‬

17. Learned counsel for the petitioner upon being confronted

with the state of law in this respect submits that there are no

reasons cited in the judgment about the capacity of the

petitioner in paying such an allowance and that the trial court

W.P. No.278 of 2022 10

ought to have employed Section 17-A(4) for the purpose of

gauging the financial health of the petitioner before passing the

judgment under challenge. Adds that even if breast feeding

maintenance allowance had to be awarded the trial court could

only have ordered such breast feeding maintenance allowance

after gauging and determining the financial position of the

petitioner and not otherwise.

18. What the counsel for the petitioner submits is legally

unarguable and draws strength from the following judgments:

19. In “Tauqeer Ahmad Qureshi v. Additional District Judge,

Lahore and 2 others” (PLD 2009 SC 760), it has been held at

Page-766 at paragraph No.9 as follows:-

“The minors are entitled to be maintained by the

father in the manner befitting the status and financial
condition of the father and for this reason the Family
Court is under an obligation while granting the
maintenance allowance, to keep in mind the financial
condition and status of the father. It has to make an
inquiry in this regard. It cannot act arbitrarily or
whimsically. Furthermore, at the same time, the
unjust enrichment of the minors cannot be permitted
at the cost of the father.”

20. In “Muhammad Asim and others v. Mst. Samro Begum

and others” (PLD 2018 SC 819), it has been held at paragraph

No.6 that, “where a husband is required to maintain his wife or

child the Judge Family Court should try to ascertain the salary

and earning of the husband who is required to pay

maintenance.”
W.P. No.278 of 2022 11

21. In “Khalid Mahmood v. Naseem Akhtar and others”

(2019 MLD 820) it has lucidly been observed at paragraph

No.6 as follows:

“A discreet study of both judgments passed by learned

courts below reveals that they have not discussed any
document on the basis of which they determined the
financial status of Petitioner for fixation of the
quantum of maintenance for minor respondents. It
was paramount duty of learned Family Court as
enshrined above to keep in mind the financial status
of the Petitioner/husband before fixing quantum of
maintenance. The financial status and resources of
father/Petitioner and his capacity to pay could only be
ascertained through summoning of documentary
evidence from the concerned organization, body or
authority where he is employed. Both courts below
had miserably failed to do so.”

22. In “Nazia Bibi and others v. Additional District Judge,

Ferozewala and others” (PLD 2018 Lahore 916), it has been

held with respect to gauging of quantum of maintenance as

follows, “at the same time the court must determine the income

of the father either through proper documentary evidence or on

the basis of social status and earning capacity of the father.” It

has been further held at paragraph No.10 as follows:-

“10. In this regard, it is noted that Section 17(A) of

the West Pakistan Family Courts Act, 1964
specifically provides in subsection (4) that for the
purposes of fixing maintenance, the court may
summon the relevant documentary evidence from any
organization, body or authority to determine the
estate and resources of the defendant. The purpose of
this provision is to facilitate the court to determine
the financial position of the father. The court
therefore is not dependent on documents or
information provided by the father and can call for
relevant documents or information be it from the
relevant department or organization or as the case
requires, in order to determine the income of the
father. In "Khadeeja Bibi and others v. Abdul Raheem
and others" (2012 SCMR 671) the august Supreme
Court of Pakistan held that even on the question of
determining the annual increase in maintenance in
the absence of any evidence on the point of annual
W.P. No.278 of 2022 12

increase the court should refrain from imposing such

annual increase in the payment of maintenance to the
minor, which is not in co-relation to the income of the
father and the capacity of the father with respect to
income. Therefore where the court is required to look
into the future need of the minor that too must be
done on the basis of reasonable and likely increase
that can be made based on age, needs and on the
maintenance that is being fixed for the present day.”

23. In “Muhammad Shakir v. Additional District Judge,

Islamabad-West and 5 others” (2021 CLC 809), it has been

held by the Islamabad High Court at paragraph No.22 as

follows:-

“22. The sequel of above discussion is that while

fixing maintenance, both the learned courts have
overlooked the important aspects highlighted in
para-14 (supra), which are essential to determine
the financial capability of the father vis- -vis
independent source of income of the respondent
No.3/mother. It was incumbent upon the courts to
determine the income of the father for which
recourse in terms of subsection (4) of section 17(A)
of the West Pakistan Family Courts Act, 1964 can be
adopted which is meant to facilitate the court to
determine the financial position of the father.”

24. As is evident from a perusal of precedent cases on the

subject, the approach of learned Judge Family Court is not

correct and, therefore, needs to be corrected in constitutional

jurisdiction of this Court.

25. As a sequel to what has been discussed and noted above,

judgment dated 19.11.2021 passed by a Judge Family Court is

set aside only to the extent of awarding breast feeding

maintenance allowance while the grant of maintenance in

general as also the grant of delivery expenses is kept intact

since the petitioner has not laid a challenge to these two areas.
W.P. No.278 of 2022 13

The learned Judge Family Court shall, after employing the

provisions of Section 17-A(4) of the Family Courts Act, 1964

and after determining the financial status of the petitioner,

decide the question and quantum of breast feeding maintenance

allowance. For the said purpose, the parties are directed to

appear before learned Judge Family Court on 01.2.2022.

26. Allowed in the above terms.

(MUHAMMAD SHAN GUL)

JUDGE

Approved for reporting.

Judge
*Waseem*