Syed KAZIM GILLANI Versus Syeda SAMRAH GILLANI
1. SARDAR LIAQAT HUSSAIN, J.--- The captioned appeal has been filed against the order dated 19.09.2024 recorded by Additional District Judge/ judge Family Court Muzaffarabad, whereby, fixed the interim maintenance of minors/ respondents Rs.7000/- each per month and dismissed the application for grant of interim relief.
2. Learned counsel for the parties have filed written arguments which are made part of file, hence, need not to be reproduced for the sake of brevity.
3. I have considered the written arguments filed by learned counsel for the parties and gone through the record of the case with due care and cautions.
4. A perusal of record shows that Syeda Anser Gillani along with minors filed a suit for recovery of maintenance allowance from August, 2001 to 2023 to the tune of Rs.50,000/- per month and Rs. 20,000/- each per month from August, 2021 till decision. The suit was contested by the appellant, herein, by filing written statement. During the proceedings, respondents, herein, filed an application for fixation of interim maintenance allowance of minors, wherein, it has been stated that non-applicant/ appellant, herein, has neither paid any maintenance allowance nor provided amount for educational expenses of minors. Respondents, herein, also filed an application for interim relief, through which they claim that non-applicant may be restrained from sold out the house. Non-applicant/ appellant, herein, filed objections upon the applications. Learned Court below heard the parties upon the applications and finally granted interim maintenance of minors to the tune of Rs.7000/- each per month and dismissed the other application filed for grant of interim relief, framed issues and fixed the case for recording evidence on 11.10.2024 through order dated 19.09.2024, under challenged.
5. It is admitted position that minors are the real children of appellant, herein. It is a hard fact that maintenance allowance of the minors is legal and moral responsibility of the father coupled with the fact that it is an indispensable right of the minor. 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 minors, regardless of the fact that the minors either resides with him or their mother. In addition to it, Family Court has to take into consideration the subject interest of the minor at the earliest. To this end, the Family Court has to adopt a pragmatic approach while fixing the interim maintenance.
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. Such obligation of father has time and again been recognized, elaborated and emphasized by the Hon'ble Apex Court. Reliance can be placed as PLD 2013 SC 557 and 2010 YLR 3275.
7. Learned counsel for the appellant in her written arguments, only raised objection that appellant is seriously ill, who drive a Suzuki, as well as there is nothing in the Azad Jammu and Kashmir Family Court Act, regarding interim maintenance, hence, the order of court below may be modified because appellant can only pay Rs.4000/- per month according to his current financial position. Interim maintenance for minors is a temporary measure ordered by a Family court to ensure the Child's basic need are met during a maintenance dispute. It is a crucial aspect of child welfare, particularly when parents are separated or divorced and legal proceedings are underway. The Court considers factors like the child's basic needs, the parent's financial capacity, and the circumstances of the case when determining the amount and duration of interim maintenance. The issue of maintenance allowance is dealt with under Section 17-A of the Family Courts Act, 1964, through which 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 decree the suit. Though Family Court Act, 1964, is not adopted in Azad Jammu and Kashmir, however, in Azad Jammu and Kashmir, AJ&K Family Courts Act, 1993, is adopted and under Section 5 of the said Family court can adjudicate the matters which are envisaged in schedule to this Act. While considering the whole spirit and scheme of the Family Courts Act, 1993, and its preamble, the intention of the legislature is clear that the Family Court shall have jurisdiction to entertain, hear and adjudicate upon such matters. As well as the order recorded by the Court below regarding interim maintenance also falls under the schedule and in my view the Family Court at any stage of the proceedings in a case pending before it can pass an interim order for maintenance. Admittedly, it is not a final order, but pass only to facilitate the minors to meet their day to day life expenses till the final adjudication of the family suit. It is also an admitted position that family suit is still pending and during its pendency, the learned Family Court has passed the impugned order, which is undoubtedly for all intents and purposes an interim order and the legislature has specifically prohibited the filing of an appeal against an interim order and if is allowed to be filed against such order, it would tantamount to defeating the very intent of the legislature.
8. Even otherwise, it is legal as well as moral right of every minor/ child that he/she be brought up in healthy atmosphere and be brought up with the feelings of self-respect along with necessities of life and it is duty of the father to bring up his children as per his financial status. It is also settled principle of law that nobody/parents or any blood relative can waive the right of any minor regarding his maintenance allowance which has been given by Sharia.
9. Keeping in view the basic needs of minors in juxtaposition with their age I understand that the interim maintenance allowance fixed by the learned Family Court is sufficient/ proper and in such circumstances, I am not inclined to modify the order of Court below. Hence, in my view, the impugned order can neither be termed as void, ab initio nor illegal. Similarly the order of fixing the interim maintenance has not to attain the status of a final order. The learned counsel for the appellant is unable to point out any patent illegality or material irregularity in the impugned order as well as order whereby interim maintenance of the minors was fixed, therefore, court below has rightly entertained the matter, which hardly required any interference by this Court.
10. I may observe here that the observation made in this order is only tentative in nature and not final. Proper quantum of maintenance allowance has to be fixed by the learned Judge Family Court/ trial Court, after recording of evidence. The learned trial Court may increase or decrease the quantum of maintenance allowance at the time of final adjudication of the case, thus, the appeal in hand, being bereft of merit is hereby dismissed.
11. MQ/28/AJK(HC) Appeal dismissed.