2024 Y L R 2841

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali and Dr. Khurshid Iqbal, JJ
MUHAMMAD RAHEEL---Petitioner
Versus
Mst. RIMSHA ANWAR and others---Respondents
W.P No. 217-D of 2023, decided on 26th April, 2023.
(a) Family Courts Act (XXXV of 1964)---
----S. 17-A---Interim maintenance allowance of minor---Scope---Maintenance
allowance of the minor is legal and moral responsibility of the father coupled
with the fact that it is an indispensable right of the minor, which is why an
interim order for grant of maintenance allowance has to be passed at a
convenient stage of the proceedings and the Family Court has to consider the
interest and protection of the minor at the earliest---A father is not only legally
but also morally under an obligation to meet the expenses of his minor regardless
of the fact that the minor resides with him or his mother---Family Court has to
take into consideration the subject interest of the minor at the earliest---Family
Court has to adopt apragmatic approach while fixing the interim maintenance
under section 17-A of the Family Courts Act, 1964.
(b) Family Courts Act (XXXV of 1964)---
----S. 17-A---Maintenance allowance of minor, grant of---Father, responsibility of---
A father is under legal, moral and religious obligation to maintain his children till the
age specified by law/sharia---Such obligation is a dictate laid down in the Holy
Quran.
Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 and Syeda
Farhat Jahan v. Syed Iqbal Hussain Rizvi and another 2010 YLR 3275 ref.
(c) Family Courts Act (XXXV of 1964) ---
----S. 17-A---Interim maintenance allowance of minor, grant of---Quantum---
Scope---Court must take into consideration the need of creating a stable, safe and
healthy environment for the physical and moral development of the minors---
Without due consideration of all said factors, the Court cannot conclude
positively the quantum of maintenance---However, there is no hard and fast
formula for determining quantum of maintenance and the main consideration for
the Court is the ability of father to maintain the minors---A father is obligated
under the law to take care of his minor children and the quantum has to be
determined as per his earning, financial and social status and the ability that he
may have to take care of the minors.
(d) Constitution of Pakistan ---
----Art. 199---Family Courts Act (XXXV of 1964), S. 17-A---Grant of interim
maintenance allowance for minor, assailing of---Constitutional petition---
Maintainability---If the father finds that the interim maintenance excessive or
order for the some suffers from any illegality, irregularity or is arbitrary, fanciful
and void ab initio, without jurisdiction or same has attained the status of final
order, then constitutional petition is maintainable---Interlocutory orders of the
Family Court should not be assailed in constitutional jurisdiction, even though in
some cases they are harsh, but the determination of adequacy or inadequacy of
the quantum of maintenance would certainly require factual evidence or inquiry
which cannot be made in the proceedings under Art. 199 of the Constitution ---
Legislature, has specifically prohibited filing of appeal against interim order
thus, allowing constitutional petition against interim order would amount to
defeating intention of legislature---Even otherwise, there is no bar under the law
to challenge the void ab initio orders, which are without Jurisdiction---Orders at
interlocutory stages should not be brought to higher courts to obtain pragmatic
orders as it tends to harm the advancement of fair trial, curtails remedies
available under the law and even reduces the right of appeal---Constitutional
petition filed by father against quantum of interim maintenance allowance, being
non-maintainable, was dismissed in limine , in circumstances.
Ali Adnan Dar v. Judge Family Court and others PLD 2016 Lahore 73;
Shameneh Haider and others v. Haider Ali Khan 2018 CLC Note 43; Amir
Mehmood Hussain v. Niha Amir Syed 2011 MLD 1105; Tahir Ayub Khan v. Miss
Alia Anwar 2015 YLR 2364; Ibrar Hussain v. Mehvish Rana and others PLD 2012
Lahore 420; Muhammad Shahbaz Khalid v. Judge Family Court, Lahore PLD 2013
Lahore 64 and Mohtarma Benazir Bhutto v. The State 1999 SCMR 1447 ref.
Muhammad Abdullah Baloch for the Petitioner.
Syed Tahseen Alamdar for Respondent.
Date of hearing: 26th April, 2023.
JUDGMENT
DR. KHURSHID IQBAL, J.---This judgment aims at disposing of the instant
and W.P No. 228-D/2023. The reason is that both involve the same question of law
and fact.
2. Muhammad Raheel, through the Writ Petition No. 217-D/2023, has assailed
the sires of order dated 03.4.2023, whereby, the learned Judge Family Court-II,
D.I.Khan, while disposing of the application of respondent/ mother, fixed interim
maintenance @ Rs. 12000/- per month for Muhammad Riyan, his minor son.
3. The Writ Petition No. 228-D/2023 was against the same order dated
03.4.2023, whereby the petitioner/ plaintiff sought enhancement of maintenance
allowance upto Rs. 40,000/-per month for minor Muhammad Riyan.
4. Heard. Record perused.
5. Muhammad Riyan is the real son of the parties. It is a hard fact that
maintenance allowance of the minor is legal and moral responsibility of the father
coupled with the fact that it is an indispensable right of the minor. On this score
alone, an interim order for grant of maintenance allowance has to be passed at a
convenient stage of the proceedings and the learned trial court has to consider the
interest and protection of the minor at the earliest. By now, it is well-settled that a
father is not only legally, but also morally, under an obligation to meet the expenses
of his minor issue, regardless of the fact that the minor either resides with him or
his mother. In addition to it, Family Court has to take into consideration the subject
interest of the minor at the earliest. To this end, a Family Court has to adopt a
pragmatic approach while fixing the interim maintenance. The Issue of
maintenance allowance is dealt with under Section 17-A of the Family Courts Act,
1964 which is reproduced for ready reference as under: 17-A. 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.
6. It cannot be denied at all that a father is under legal, moral and religious
obligation to maintain his children. In Islamic law, a father is under legal, moral
and religious obligation to maintain his children till the age specified by law/sharia.
Of great significance is the fact that such obligation is a diktat laid down in the
Holy:
"And clothing and maintenance must be borne by the father in a fair manner." [AL-
BAQARAH, 233]
7. Such obligation of father has time and again been recognized, elaborated and
emphasized by august Supreme Court of Pakistan. It has been held in the case titled
"Humayun Hassan v. Arslan Humayun and another" (PLD 2013 Supreme Court
557) reading as follows:
"4- [...] There can be no cavil with the proposition that the maintenance issue(s), in
relation to Muslim relatives shall be governed and regulated by the
principles/injunctions of Islam i.e. as per the personal law of the parties. In this
context, according to section 369 of the Muhammadan Law by D.F. Mullah,
maintenance means and includes food, raiment and lodging. However, it may
be observed that from the very language of the above section, such definition is
neither conclusive nor exhaustive, and in our view it undoubtedly has a wider
connotation and should be given an extended meaning, for the purposes of
meeting and catering for the present days social, physical, mental growth,
 upbringing and well being of the minor, keeping in mind the status of the
family, the norms of the society and his educational requirement, which has
now attained utmost importance; but obviously corresponding to and
commensurating with the means and the capacity of the father to pay. ...".
8. The same view was taken in case titled "Syeda Farhat Jahan v. Syed Iqbal
Hussain Rizvi and another" (2010 YLR 3275):
"it is the legal and moral duty of the father of minor children to keep
maintaining them he being the natural guardian till they attain the age of
majority. No excuse, big or small can absolve the father from his duty of
maintaining his minor children which duty has been ordained on him
through divine revelation of Allah Almighty."
9. The Court must take into consideration the need of creating a stable, safe and
healthy environment of the physical and moral development of the minors. Without
due consideration of all these factors, the court cannot conclude positively the
quantum of maintenance. However, there is no hard and fast formula for
determining quantum of maintenance and the main consideration for the Court is
the ability of the father to maintain the minors. A father is obligated under the law
to take care of his minor children and the quantum has to be determined as per his
earning, financial and social status and the ability that he may have to take care of
the minors.
10. The Court has also gone through the judgment rendered by the Hon'ble
Lahore High Court reported as PLD 2016 Lahore 73 (Ali Adnan Dar v. Judge
Family Court and others), wherein, it has been held that if the father found that the
interim maintenance was excessive or order suffers from any illegality, irregularity
or is arbitrary, fanciful, and void ab initio without jurisdiction or same had attained
the status of final order, then constitutional petition is maintainable. Similarly,
certain guidelines have been set in supra judgment regarding fixation of interim
maintenance of minor, which plays a key role while passing such order. For ready
reference, the same are reproduced as under:
"I. Maintenance allowance is indispensable right of the mother and children, so
the order for grant of maintenance allowance must be passed at a
"convenient stage" of the proceedings.
II. Although section 17-A of the ibid Act empowers Family Court to pass an
order for grant of interim maintenance allowance at any stage of the
proceedings, in the normality of the circumstances, it must be passed after
hearing "both of the parties" unless the attitude and conduct of the
defendant/father is evasive.
III. The order for grant of interim maintenance is made on the basis of tentative
assessment of the material available on file and keeping in view the social
status of the parties. Further, both the above, material available and social
status, should be mentioned in the order for the grant of interim
maintenance. Further the quantum of interim maintenance should be "bare
minimum" to meet the day to day needs of the recipient in the narrow
context.
 IV. Although the family laws have been enacted to promote, protect and advance
the rights of women and children yet at the interim stage, the version of the
respondent/defendant be given a sympathetic or somewhat preferable
consideration because, non-payment of interim main-tenance allowance will
cut throat of his invaluable right i.e. "right to defence" and in consequential
effects, children/women would be the losing and deprived parties.
V. Further, if the case is not decided within the statutory period as given in
Section 12-A of the West Pakistan Family Courts Act, 1964 either party may
apply to the High Court for appropriate direction. However, the order for
grant of interim maintenance shall hold the field unless reviewed by High
Court under section 12-A or Family Court itself reviews it at any stage as
observed below.
VI. Family Court, according to section 12-A" of the West Pakistan Family
Courts Act, 1964, is under legislative direction to decide the case within six
months. Although this provision is directive as no penalty/consequences are
mentioned for non-compliance and in this regard reference is made to (2001
SCMR 1001). But in case the matter is not decided within six months and
the delay is due to the plaintiff party, then Family Court either on its own
motion or on the application of the defendant/father review its earlier order
for grant of interim maintenance allowance."
11. While considering the above discussion, interlocutory orders of the Judge
Family Court should not be assailed in constitutional jurisdiction, even though in
some of cases they are harsh, but the determination of adequacy or inadequacy of
the quantum of maintenance would certainly require factual evidence or inquiry
which cannot be made in the proceedings under Article 199 of the Constitution of
the Islamic Republic of Pakistan, 1973 as held in 2018 CLC Note 43 (Shameneh
Haider and others v. Haider Ali Khan), 2011 MLD 1105 Lahore (Amir Mehmood
Hussain v. Niha Amir Syed), 2015 YLR 2364 (Tahir Ayub Khan v. Miss Alia
Anwar), PLD 2012 Lahore 420 (Ibrar Hussain v. Mehvish Rana and others), and
PLD 2013 Lahore 64 (Muhammad Shahbaz Khalid v. Judge Family Court, Lahore).
Although, the underlining legal principles to consider this legal aspect is the
intention of the legislature, who has specifically prohibited filing of appeal against
interim order, allowing constitutional petition would tantamount to defeating and
diverting intent of the legislature. Even otherwise, there is no bar under the law to
challenge the void ab initio orders, which are without jurisdiction. Learned counsel
for respondents relied upon the judgment reported as 1999 SCMR 1447 (Mohtarma
Benazir Bhutto v. The State). In this case, it has been held that orders at
interlocutory stages should not be brought to higher courts to obtain pragmatic
orders as it tends to harm the advancement of fair trial, curtailing remedies
available under the law, and even reducing the right of appeal.
12. As discussed earlier, the impugned order can neither be termed as void, ab
initio nor without jurisdiction. Similarly, the impugned order has not attained the
status of a final order. It was passed by the learned Judge Family Court, D.I.Khan,
who has the jurisdiction to pass the said order under section 17-A of the West
Pakistan Family Courts, Act, 1964. The petitioner has not challenged the
jurisdiction of the learned Judge Family Court, D.I.Khan. He was not condemned
unheard and was provided an opportunity of hearing before passing the impugned
order. The quantum of interim maintenance allowance was prima facie rightly fixed
by the learned Judge Family Court, D.I.Khan, while keeping in view the status of
the parties and expenses of the minors. The learned counsel for the petitioner is
unable to point out any patent illegality or material irregularity in the the impugned
order, therefore, the instant petition, which has been filed against an interim order
passed by a Court of competent jurisdiction, is not maintainable in the eyes of law.
13. For the afore-stated reasons, maintenance allowance determined by the
learned Judge Family Court-II, D.I.Khan, for minor Muhammad Riyan is found to
be prima facie reasonable in view of high inflation, which does not require any
modification. Keeping in view the perceived social and financial status of the
parties, the interim maintenance allowance fixed at the rate of Rs.12,000/- per
month for minor has rightly been determined by learned Judge Family Court-II,
D.I.Khan. Hence, the instant petition coupled with W.P No. 228-D/2023, being
bereft of merit and substance, are hereby dismissed in limine.
MQ/236/P Petition dismissed.
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