Mst. SITWAT CHUGHTAI and another vs JUDGE, FAMILY COURT, LAHORE and another

ORDER

' SYED ASGHAR HAIDER, J.---Petitioners filed a suit for recovery of dower for petitioner No,1 and maintenance allowance for petitioner No.2. Respondent No.2 entered appearance, filed a written statement, contested the suit, of the pleadings of the parties issues were framed and the learned Family Court also fixed interim maintenance in the sum of Rs,1200 per month for petitioner No.2.

Petitiones are aggrieved of fixation of interim maintenance and pray that the same may be enhanced, hence the instant petition.

2. Learned counsel contended that respondent No,2 is a man of means and his monthly salary is around Rs,1,25,000, petitioner No.2, is a minor and a school going boy, his boarding, lodging and ancillary expenses are about Rs,25,000 per month to which the petitioner No.1 has to cater, therefore, the amount of Rs,1200 fixed as interim maintenance by the learned Family Court is too meagre to defray these expenses, as such it be enhanced. To further augment her submissions, learned counsel submitted that this court has ample powers to interfere in interlocutory orders even if they are tentative in nature. To fortify her contention, the learned counsel referred to Makhdoom Ali v. Mst. Razia Sultana and others 2007 MLD 41, Muhammad Sarwar v. Sughran Bibi and 2 others 1996 MLD 1057 and Mst.Shereen Masood v. Malik Naseem Hassan Judge, Family Court, Lahore and another 1985 CLC 2758.

3. Heard.

4. The Family Court Act, 1964 is a special statute and has been enacted with a specific purpose to ensure expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. It, inter alia, has bestowed upon the Family Court powers under section 17-A of the Act ibid to grant interim maintenance to the concerned parties during the pendency of the proceedings. It also has been mandated that such maintenance shall be paid by the 14th day of each calendar month and in case of default the defence of the defendant shall be struck off and the suit decreed. The purpose behind this legislation is to ensure that during pendency of these proceedings with the Family Court financial constraints faced by the minors are ameliorated. The question now arises that does the Family Court have un-fettered and un-bridled powers to fix interim maintenance at its discretion or is it required to proceed on pragmatic, rationale and judicial basis? The answer, of course, is that it should proceed on the latter. It should broadly look into the social status of the parties, the earning of the defendant, his capacity to pay, the requirements of the minor and on this touchstone fix interim maintenance. It also is noteworthy that no right of appeal etc. Has been provided against this fixation, because the order is tentative and interim in nature, therefore, the Family Court should be even more careful and precise in this context to ward off any injustice. However, this order is subject to final review after recording evidence of both parties, thus the quantum of maintenance can thereafter be easily determined and fixed accurately. The Court has uninhibited powers to enhance or decrease the quantum of maintenance after appraising deciphering and examining the evidence produced during trial.

Therefore, findings qua interim maintenance normally cannot be interfered with, if the same are fixed upon the parameters stated above. In the present matter, in the plaint, a demand for maintenance for the minor has been raised in the sum of Rs,25,000, while controverting the assertion of the plaintiffs in para.4 of the written statement the salary of the defendant in the sum of Rs,1,25,000 is admitted, however a detail of his expenses which comes to Rs,1,10,440 has been stated. Unfortunately, there are no details in the plaint regarding the quantum of school fee and other expenses of the minor but only a figure of Rs,25,000 has been stated, therefore, it is impossible to determine the veracity of the claim of either party, without recording evidence. This exercise is not possible in the present jurisdiction, especially if the findings is only tentative and not final and the order is also interim in nature. And also because proper fixation of maintenance has to be fixed by the Family Court after recording of evidence. I am fortified in this context by the following precedents F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918, Khawaja Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt./Election Authority (Tribunal) and another 1981 SCMR 291, Federation of Pakistan and 2 others v. Major (Retd.)

Muhammad Sabir Khan PLD 1991 SC 476, Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. Through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618, Mst.

Mariam Bai and others v. Islamic Republic of Pakistan and 5 others 1993 SCMR 515, Mushtaq Hussain Bokhari v. The State and 6 others 1991 SCMR 2136, Mohatrma Benazir Bhutto M.N.A. And Leader of the Opposition, Bilawal House, Karachi v. The State 1999 SCMR 1447, Mian Ghulam Dastgir Bari v. Rai Salah ud Din and others PLD 1987 Lah. 39 and Habib Arkady Ltd. v. Deputy Collector, Sales Tax Hub, Collectorate of Customs, Sales tax and Central Excise, Quetta 2001 PTD 3948.

5. As far as the precedents referred to by the learned counsel for the petitioner are concerned, they are persuasive and not binding and even distinguishable on facts, thus of not much help to the cause of the petitioner.

6. But as the petition emanates of a family matter and admittedly the minor's need have to be catered to in a reasonable manner to ward off any hardhip, therefore, the Family Court is directed to conclude trial within two months from today, in accordance with law, on merits, without fail. It shall keep especially in mind the needs of the minor and his monthly expenses and also the monthly salary of the defendant and the parameters referred to above, before fixing the final maintenance of the minor.

With these observations the petition is dismissed in limine.