MUHAMMAD IRFAN vs JUDGE, FAMILY COURT, SARGODHA and 2 others
This writ petition challenged an order passed by the Judge, Family Court, Sargodha, directing the petitioner to pay interim maintenance allowance to his minor sons from the date of the institution of the suit. The petitioner contended that the order was illegal because it granted maintenance retrospectively and that the quantum of maintenance was exorbitant. The Lahore High Court dismissed the petition in limine. The Court held that an order for interim maintenance effective from the date of the institution of the suit does not constitute 'past maintenance,' as the proceedings of a suit commence upon its institution. Consequently, such an order is valid and does not suffer from legal infirmity. Furthermore, the Court declined to adjudicate on the quantum of maintenance, noting that such a determination requires a factual inquiry unsuitable for writ jurisdiction. Finally, the Court emphasized that an interlocutory order, which lacks the characteristics and effect of a final order, is not subject to judicial scrutiny under Article 199 of the Constitution of Pakistan 1973.
- Can an interim maintenance order be made effective from the date of the institution of the suit?
- Does an order for interim maintenance effective from the date of suit institution constitute 'past maintenance'?
- Is an interlocutory order of a Family Court subject to judicial scrutiny under Article 199 of the Constitution of Pakistan 1973?
- Article 199, Constitution of Pakistan 1973
ORDER
' ZUBDA-TUL-HUSSAIN, J.--- This writ petition questions the legality of the order for interim maintenance allowance passed by the learned Judge, Family Court, Sargodha, in a suit filed on behalf of respondents Nos.2 and 3 the minor sons of the petitioner.
2. In the suit it was directed by the learned Judge Family Court that during the pendency of the suit the petitioner shall pay an interim maintenance allowance to the respondents Nos.2 and 3, the minor sons, at the rate of Rs,3,000 and Rs,2,000 per month, respectively. Thus, the total interim allowance to be paid by the petitioner was Rs,5,000. It was also directed that the said interim maintenance allowance shall be payable from the date of institution of the suit.
3. The learned counsel for the petitioner has contended that the order for interim maintenance allowance could be passed only for the future and it could not be given retrospective effect under the law. The contention seems to be misconceived. The learned Judge Family Court granted the interim maintenance allowance only from the date of institution of the suit, which by any stretch of imagination could not be termed as the past maintenance. The proceedings of a suit take effect from its institution and as such any order, including the one for maintenance allowance, given effect from the date of institution, is an order for interim period only. The retrospectively could be relatable to the period preceding the date of institution and not the period starting with the commencement of the suit.
4. The learned counsel has then asserted that the rate of maintenance allowance is exorbitant keeping in view the financial resources of the petitioner. This question, I am afraid, cannot be sorted out in the present proceedings, as it would involve factual enquiry.
5. I have considered the whole petition in the total perspective and have come to the conclusion that no illegality or material irregularity has been committed by the learned Judge Family Court while passing the impugned order, dated 5-11-2007. It goes without saying that the impugned order is also interlocutory order, which has not in any manner effect of being a final order. Unless an interlocutory order bears the characteristics and effect of a final order, it cannot be subjected to judicial scrutiny in the proceedings under Article 199 of the Constitution.
6. The upshot of the above is that the writ petition has no force, which is dismissed in limine.
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