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. 1,200/- per month for petitioner No. 2.
Petitioners are aggrieved of fixation of interim maintenance and pray that the same may be enhanced, hence the instance 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 by, 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. 1,200/- 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 for contentions, the learned counsel referred to Makhdoom All v. Mst. Razia Sultana and others (2007 M LD 41), Muhammad Sarwar v. Sughran Bibi and 2 others (1996 M LD 1057) and Mst. Shereen Masood v. Malik Naseem Hasasan, Judge, Family Court, Lahore and another (KLR 1985 Civil Cases 585).
3. Heard.
4. The Family Courts 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 pending of the proceedings. It has also 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 of 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 unfettered and unbridled powers to fix interim maintenance at its discretion is it required to proceed on pragmatic, rationale and judicial basis. The answer, of course, is that it should proceed on the later. 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 of any injustice. However, this order is subject for final review after recording evidence of both parties, thus the quantum of maintenance can thereafter be easily determined and fixed accurately. The Court has inhibited 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 SCM R 918), Khawaja Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt./Election Authority (Tribunal) and another (1981 SCM R 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 SCM R 618), Mst. Mariam Bai and others v. Islamic Republic of Pakistan and 5 others (1993 SCM R 515), Mushtaq Hussain Bokhari v. The State and 6 others (1991 SCM R 2136), Mohtarma Benazir Bhutto M.N.A. And Leader of the Opposition, Bilawal House, Karcahi v. The State (1999 SCM R 1447), Mian Ghulam Dastigir Bari v. R.I Salah- udDin etc. (NLR 1987 CLJ 459) 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 catered to in a reasonable manner to ward of any hardship, 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.