ABDUL KHALIQ Versus Mst. FOZIA BIBI

KHALID MEHMOOD, J. ---By way of this constitutional petition Abdul Khaliq has challenged the order dated 27-10-2011, whereby learned Civil Judge-VIII, Abbottabad on acceptance of application of respondent No.1 fixed interim maintenance of minor @ Rs.2500/- per month.

2. Briefly stated facts of the case are that respondent No.1 has filed a suit for recovery of maintenance etc, fully described in the heading of the plaint, against petitioner. During trial, respondent No.1 applied for recovery of interim maintenance allowance to which petitioner replied and learned trial court fixed interim maintenance of minor at Rs.2500/- per month.

3. Learned counsel for petitioner mainly argued that petitioner, who is working, as a Volveman is a low paid employee having mother and sisters but has been burdened by the trial court with the payment of heavy amount towards maintenance allowance of his minor daughter. He placed reliance on the Holy Versus of Surah Al-Baqarah.

4. Arguments heard and record perused.

5. Admittedly, this writ petition has been filed against an interlocutory order of trial court regarding payment of interim maintenance allowance of minor Muniza, which is not maintainable. However, in the Holy Versus of Soora Albaqara God has ordered not to burden the father beyond his paying capacity in the payment of maintenance of either wife or of minor children. The interim maintenance order has been provided under section 17-A of Family Courts Act, 1964, which reads under:--

"17A. Interim order for maintenance .--At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decreed the suit".

The referred Verse 233 of Surah Al-Baqarah of Holy Quran and its meanings are as under:

"Mothers (should) suckle their children for two full years, for one who wants to complete the (period of) suckling. It is obligation one to whom the child belongs that he provides food and clothing for them (the mothers) with fairness. No body is dealt beyond his capacity. No mother shall be made to suffer on account of her child, nor the man to whom the child belongs, on account of his child. Likewise responsibility (of suckling) lies on the (one who may become an) heir (of the child). Now if they want to wean with mutual consent and consultation, there is no sin on them. And if you want your children suckled (by a wet nurse) there is no sin on you when you pay what you are given with fairness and fear Allah and be assured that Allah is watchful of what you do"

6. Although the prices of all commodities are at peak and currency is devaluing day by day but keeping in view the Holy Verse of Surah Al-Baqarah, the trial Court is required to look into the matter in the light of paying capacity of petitioner and shall pass an appropriate order at the time of final adjudication of the matter. The impugned order has been passed by the Family Court, who has the jurisdiction to pass interim order for the maintenance of wife and his own children. Father is bound to maintain his own children, which is also clear from the said Verse of Holy Quran. In the present case monthly income and other liabilities of petitioner has not clearly been mentioned in the petition nor any record in this respect has been produced before this Court, hence, we are unable to evaluate the burden lay on the petitioner regarding maintenance of his own child. However, we are in agreement to the stance of the petitioner that in the light of Quranic Verse that no one should be burdened beyond his means and capacity. As factual controversy is also involved in the present case, hence, in prevailing circumstances the constitutional jurisdiction cannot be invoked. Family Court has ample power to reduce or enhance the maintenance after evaluating the source of income of the husband, social status of the parties, necessary expenditures of the other party/plaintiff, hike of prices of all the commodities; educational expenses etc. after that trial Court can determine the interim as well as regular maintenance of the minor.

7. Consequently, this petition being bereft of merit is hereby dismissed. However, the trial Court is directed to decide the case within a short possible time but not later than six months. However, till then the interim order passed by the trial Court shall continue.

H.B.T./35/P Petition dismissed.