ATTA MUHAMMAD vs Mst. SHAHNAZ KHATOON and 6 otherss
This constitutional petition arises from concurrent judgments and decrees passed by the lower forums whereby a suit for maintenance filed by the respondents, wife and minor children of the petitioner, was decreed after closing the petitioner's right of defence. The core legal question was whether the trial court was justified in closing the petitioner's defence and decreeing the suit upon his persistent failure to pay interim maintenance. The Lahore High Court held that the Family Court possesses the power to order interim maintenance during the pendency of a suit, and the failure to comply with such an order lawfully entails the penal consequence of striking off or closing the right of defence. The Court concluded that since the petitioner failed to deposit even a nominal amount of interim maintenance over several months and neither appeared nor made payment on the date fixed, the concurrent findings contained no illegality or infirmity. The petition was accordingly dismissed as meritless.
- Can a Family Court pass an order for the payment of interim maintenance during the pendency of a maintenance suit?
- Does the failure to comply with an interim maintenance order entail the penal action of closing the right of defence?
- Whether concurrent judgments and decrees of lower forums regarding maintenance warrant interference under constitutional jurisdiction when no illegality is shown?
- Article 199, Constitution of Pakistan 1973
ORDER
' MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that respondents Nos.1 to 7 filed a suit for maintenance against the petitioner. Respondent No,1 is the wife while respondents Nos.2 to 7 are the minor children of the petitioner. Vide order dated 12-2-2004 petitioner was directed to deposit a sum of Rs,300 per child as interim maintenance. No amount whatsoever was deposited by the petitioner, therefore, on 29-7-2004 the learned trial Court again directed him to make payment and the matter was adjourned to 22-9-2004. Still nothing was paid and the case was adjourned to 16-10-2004. On the said date neither any amount was proved to have been paid nor the petitioner nor his learned counsel turned up before the Court, therefore, the learned trial Court proceeded to close the defence of the petitioner and decreed the suit at a rate of Rs,1,000 per month per child and Rs,2,000 per month for respondent No,1 wife. The same was assailed by the petitioner through an appeal which also stands dismissed vide judgment and decree dated 27-11-2004. Both these judgments and decrees are being assailed through the instant constitutional petition.
2. It is contended by the learned counsel for the petitioner that petitioner is a poor retired Army soldier and was not in a position to pay the amount directed by the learned trial Court; that some land was also purchased by the petitioner in the name of the minor children, therefore, he was left with no finances to honour the order of the Court.
3. I have considered the arguments of the learned counsel for the petitioner.
4. The Family Court can pass an order for payment of interim maintenance during the pendency of a suit. Failure to comply with such order necessarily entails penal action of closing right of defence.
No infirmity or illegality could be pointed out by the learned counsel for the petitioner in the impugned orders. The petitioner for the first time was directed on 12-2-2004 to pay a meagre amount of interim maintenance i.e, Rs,300 per head per month and the petitioner did not deposit even a single penny till 16-10-2004 when his right of defence was closed. In the circumstances no interference is called for, this petition has no merit and is accordingly dismissed.
Cited by 6 cases
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- MUHAMMAD FAISAL vs MUHAMMAD HAFEEZ-UL-REHMAN KHAN and 3 others 2009 MLD 724
- MUHAMMAD FAISAL vs MUHAMMAD HAFEEZ-UL-REHMAN, JUDGE FAMILY 2009 PLJ Lahore 525
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