RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---The petitioner, namely, Abbas Ahmad son of Muhammad Siddique, by filing this Constitutional petition has called in question the judgments and decrees, dated 26.3.2008 and 5.11.2008 passed by the learned Judge Family Court, Lahore and the learned Additional District Judge, Lahore and has sough setting aside thereof.
2. Succinctly the facts giving rise to this petition are that respondents Nos. 1 and 2, namely, Mst.
Ayesha Aziz and Muhammad Haseeb (minor through, his mother Mst. Ayesha Aziz) filed a suit for dissolution of marriage, recovery of maintenance allowance and the dowry articles on 7.3.2006, which was contested by the petitioner by filing written-statement, during pendency of the proceedings, the learned Trial Judge fixed the interim maintenance at the rate .'of Rs. 4,500/- per month for Muhammad Haseeb, minor .(respondent No. 2) on 25.9.2006; the petitioner assailed the said order through Written Petition No. 790 of 2007 and this Court vide order dated 23.4.2007, while disposing of the same had passed following order:--- "By agreement, learned counsel for both the parties state that the impugned order be modified and interim maintenance allowance be fixed at the rate of 2500/-instead of 4500/-, per month, which shall be paid by the petitioner within 15 days from today.
2. Order accordingly. The impugned order is modified and the petitioner shall pay interim maintenance allowance at .The rate of Rs.
2500/- per month to the minor, within 15 days from today. Disposed of."
On 3.12.2007, respondent No. 1 filed an application under Section 17-A of the Family Courts Act, 19.64 before the Family Court for striking of the defence of the petitioner on the ground that he has failed to pay interim maintenance for five months, thus committed default; the contents of the application were controverted by the petitioner by filing a reply thereto, in which he stated that he had paid Rs. 42,000/- from 11.12.2006 to 24.7.2007 in the following manner:---
1. 11.12.2006 Rs. 9000/- before Court {{TABLE}}
2. 5.5.2007 Rs. 8500/- 14.5.2007 Rs. 8500/- 18.6.2007 Rs. 8500/- 24.7.2007 Rs. 7500/- before Naazir before Court before Court before Court However, the learned Judge Family Court accepted the said application on 26.3.2008 and passed following order:--- "In view of the above discussion, application under Section 17-A of Family Courts Act, 1964 is accepted and suit for recovery of maintenance allowance to the-extent of minor plaintiff No. 2 is decreed under Section 17-A of Family Courts Act, 1964 to the effect that minor plaintiff No. 2 is entitled to recovery Rs. 8500/- ever since his month of birth i.e. October, 2005 till his age of majority.
The defendant is decided to pay arrears of maintenance as well as future maintenance at the same rate with 10% enhancement per annum. The first enhancement shall be calculated in October, 2006 so on and so forth. Decree sheet be prepared. So far as claim of plaintiff No. 1 is concerned, the same will be decided after recording of evidence of parties.
Now to come up for evidence of plaintiffs on 12.4.2008."
Being aggrieved of the said order/decree, the petitioner preferred an appeal, which came up for hearing before the learned Additional District Judge, Lahore, who proceeded to dismiss the same vide judgment and decree dated 5.11.2008. Hence, the instant petition.
3. Learned counsel for the petitioner contends that the. Trial Court has wrongly passed the order/decree dated 26.3.2008 accepting application under Section 17-A of the Family Courts Act, 1964 inasmuch as it has fixed the maintenance of the minor child as Rs. 8,500/- per month without recording any evidence about the source of income of the petitioner; that the Trial Court has gone beyond the scope of the prayer; that respondent No. 1 has not 'made any prayer in this regard either in the suit or in the application under Section 17-A (ibid), therefore, the relief not prayed could not be granted; that the Trial Court was not competent to grant past maintenance to the minor from the date of his birth i.e. October, 2005 including 10% increase therein per annum, which is harsh, without bringing any material on the file. The learned counsel further argues that Appellate Court has not properly looked into the grievance of the petitioner and passed the impugned judgment and decree on mere assumptions.
4. Learned counsel for respondent No. 1 contends that the order/judgment and decrees of both the Courts below are legal and no infirmity hap been made by them; that the petitioner has failed to make payment of the interim maintenance and has committed default.
5. I have heard learned counsel for the parties at length and have also gone through the record available on the file as well as the impugned order/judgment and decrees passed by both the Courts below.
6. It has been observed that the Trial Court in its interim order dated 25.9.2006 fixed interim maintenance -and this Court while disposing of Writ Petition No. 790 of 2007 with the consent of the parties reduced the interim maintenance of minor from Rs. 4500/- to Rs. 2500/-. On 23.4.2007.
Although no specific date had been mentioned either by the Family Court or by this Court that from which date the interim maintenance was to be paid, but Section17- A of the Family Courts Act, 1964 fixed the data as 14th of each month. In this view of the matter, the contention of the learned counsel for the petitioner regarding non-mentioning of the date does not have much force.
Trial Court has not bothered to ascertain from the Civil Naazir about the claim of the petitioner .That be had deposited certain amounts i.e. Rs. 28,500/- on seven different dates at different rates, which are as follows:---{{TABLE}} 5.5.2007 Rs. 3500/- Receipt No. 6184 25.4.2008 Rs. 5000/- Receipt No. 12316 15.5.2008 Rs.5000/- Receipt No. 13489 6.6.2008 Rs. 2500/- . Receipt No. 14754 8.7.2008 Rs. 2500/- Receipt No. 405 15.8.2008 Rs. 2500/- Receipt No. 776 9.9.2008 Rs. 2500/- Receipt No. 2348 Similarly, order sheet dated 11.12.2006, 31.1.2007, 24.5,2007, 18.6.2007, 24.7.2007, 15.3.2008 and 26.3.2008 clearly shows that the petitioner had paid about Rs. 36,000/- to respondent No. 1 in the Court. Respondent No. 1 continued receiving the same without any objection. Both the Courts below have not properly considered the amount paid by the petitioner. Although the pet was required to pay Rs. 2500/- per month, but the order sheet indicates that he used to deposit the same as Rs.
8500/-, Rs. 5000/- and Rs. 2500/- . Both the Courts below also observed that certain payments have been made by the petitioner but he was non-suited on the ground that he has not paid the amount regularly but after intervals. It is not a case where the petitioner has not at all made payment. Depositing of the amount by the petitioner shows his intention, which is not non- compliance of the order stricto senso. Moreover, Section 17-A of the Family Courts Act, 1964 is directory in nature.
7. The reply of the petitioner to application under Section 17-A (ibid) is indicative of the fact that he had made payment to the tune of Rs. 42,000/- for sixteen months maintenance i.e. From 25.9.2006 to 30.1.2008, instead of Rs. 40,000/- at the rate of Rs. 2500/- per month as ordered by this Court, therefore, default on his part was not deliberate and wilful. The learned counsel for the petitioner states that the petitioner will comply with the order of the Court strictly as he beng father is bound to make payment at the rate of Rs. 2500/- per month as fixed by this Court with the consent of the parties till decision of the case. However, I am of the view that the both the Courts below have not applied their judicial mind while passing the impugned order/judgment and decrees.
8. Family Courts shall be careful while fixing the interim or full maintenance, rate and computation of period for the grant of maintenance are material questions, which depend upon evidence of the parties. Family Court should look upon the social status of the parties, expenses required, the source of earning and income of the defendant and the position of the defendant to make payment. It appears that the Trial Court has gone beyond the scope of the prayer made by respondent No. 1. No such prayer was made either in the suit or in the application under Section 17- A (ibid). These disputed questions of fact cannot be resolved through writ jurisdiction. I would not like to comment on merits of the case as the questions whether the minor is entitled to the past maintenance or the rate, at which he was entitled, are to be resolved by the Trial Court after recording of evidence of the respective parties.
Although the case is fixed for recording of evidence since long, but the evidence is 'yet to be adduced by the ` parties qua maintenance of respondent No. 1 and dowry articles. Family Courts Act, 1964 being a special statute had been enacted with a specific purpose to ensure the expeditious disposal of the suits relating to dissolution of marriage, family affairs and maintenance etc. Under Section 12-A of the said Act, Family Court should dispose of the case within a period of six months from the date of its institution. In this case, issues had been framed an 13.10.2006 and still the case is lingering on for 'recording of evidence of the plaintiff/respondent No. 1, which is matter of great concern. In this view of the matter, the Trial Court is directed to decide the case within two months on receipt of this order after providing opportunity to the parties to adduce their evidence.
9. Family Court has power under Section 17-A of the Family Courts Act, 1964 to grant interim maintenance for the minor or were during pendency of the proceeding. Under Section 17-A (ibid) such interim maintenance has to be paid by 14th of each month. In case of wilful, deliberate or contemptuous disobedience or non-compliance may attract penal consequences of striking of defence of the party. Before having recourse to penal action, Family Court should apply its judicial mind to the facts and circumstances of the whole case. Penal provisions under Section 17-A (ibid) are directory in nature and not mandatory. The interim maintenance order is always tentative in nature, which has no effect or bring on the final order. The Family Court will be at liberty to determine the entitlement of the minor as regards his maintenance without being influenced of any sort from this order or the order dated 23.4.2007 passed by this Court earlier. Reliance is placed on the case of Zafar Hussain v. Begum Farzana Nazli and others (PLD 2004 Lahore 349) and Muhammad Khalid leveed v Shahida Parveen and 4 others (2007 YLR 1366).
10. In this view of the matter, I allow this petition, set aside the order/judgment and decrees, dated 26.3.2008 and 5.11.2008 passed by the Courts below and remit the case to the Judge Family Court, who is already seized of suit qua dowry, maintenance of respondent No. 1 (were) and dissolution of marriage, shall decide the suit after affording an opportunity to the parties for adducing their evidence. The petitioner is directed to deposit the balance amount of interim maintenance at the rate of Rs. 2500/- per month in the Family Court for the minor within one month from today. No orders as to costs.
11. Before parting with this judgment, I may observe here that the Trial Court shall not be influenced by the observations made hereinabove and shall decide .The matter purely on merit.