' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---By this single judgment Writ Petition No,15500 of 2008 and Writ Petition No,15501 of 2008 are proposed to be disposed of as the same are directed against the consolidated judgment recorded by learned First Appellate Court.
2. Both the petitions are directed against judgment dated 28-8-2008 passed by Mr. Gabriel Francis Khan, the learned Additional District Judge Faisalabad, whereby he dismissed the appeal of the petitioner and partly accepted the appeal of the respondent No,3 Mst. Riffat Kausar.
3. Briefly stated the facts of the case are that respondent No.3 instituted a suit for maintenance allowance for herself and for her minor daughter Mst. Mah Noor respondent No.4, on the ground that she was deserted from his house by the defendant in the month of August, 2005 when she was having the pregnancy of a few months, therefore, and he did not maintain her as well as her minor daughter, who was born in her maternal grand parents' house. She claimed the maintenance allowance from August, 2005 till March, 2006 at the rate of Rs,2500/- per month along with the delivery charges of Rs,12094/- for herself and maintenance allowance for the minor daughter at the rate of Rs,5,000/-per month with effect from 17-2-2006 till 31-3-2006. Future maintenance was also claimed at such rate.
4. The defendant controverted the allegation contained in the plaint stating that the plaintiff herself left the house with her free will who was subsequently divorced on 14-8-2005 and that he is suffering eyes disability and is not in a position to pay exorbitant maintenance as claimed by the plaintiffs.
5. The learned Family Court, out of pleadings of the parties framed the issues on the material facts and after recording the evidence decreed the suit of maintenance allowance to the extent of the minor at the rate of Rs,3,000/- per month from March, 2006 till her marriage and to the extent of mother decreed for the Iddat Period. The claim of delivery expenses was also granted.
6. Both the parties feeling aggrieved by the findings of the learned Judge Family Court, had preferred two separate appeals which were decided by the learned First Appellate Court by way of consolidated judgment. The period of payment of maintenance allowance to the minor girl was fixed by the appellate court with effect from 17-2-2006 at the rate of Rs,3000/- per month with 15% annual increase. To this extent the appeal filed by the respondent was allowed while the appeal filed by the present petitioner was dismissed.
7. The learned counsel for the petitioner argued that the courts below had determined the maintenance allowance to the minor at the rate of Rs,3,000/- during her infancy period and till the time she is married which finding does not proper as during infancy period the requirements of the minor are not of that scale than her needs in the grown up age. He has also submitted that the grant of increase of 15% per annum in the payment of maintenance allowance is unwarranted by law, as such, the same cannot be imposed upon the petitioner without having any statutory sanction. The learned counsel for respondent submitted that the courts below had rightly fixed the increase of 15% per annum keeping in view prevailing circumstances, rate of inflation and future needs of the minor, who is to go on long way.
8. Parties heard. The submission of the learned counsel for the petitioner that grant of increase 15% per annum is not having any statutory sanction appears to be on correct dimension. Appreciation of the provisions of West Pakistan Family Courts Act, 1964 shows that it nowhere directs the court to allow the increase in the payment of maintenance allowance to the minors. In this respect, guidelines have been provided by the apex Court in two cases i,e, the case of Dr. Tariq Shaheen v.
Miss. Wafiah Fatima and others delivered on 28-2-2007 in C.P. No, 76-L of 2007 and in the case of Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and others delivered on 2-2-2009 in Civil Appeal No, 748 of 2008. This increase in allowance is being fixed by the courts being influenced by the circumstances prevailing in the society forgetting that their duty is to implement the law as has been enacted. They cannot be allowed to challenge the wisdom of legislature, which consciously did not provide any such rule to impose levy on the allowance. It is the duty of the legislature, which may, at any stage, by keeping in view the rate of inflation and sky rocketing prices of the articles of daily use, expensive education and health as well as the needs of the minor in future, may promulgate the legal provisions for meeting with such situations. Till that time, if this amendment is made by the legislature in the law the courts are supposed to follow law in its original form. The amendment in law is further essential to bring the uniformity in fixation of the rate of increase in the payment of maintenance. Allowance to the minor. It is noticed that the courts up till now are not consistent in fixing the rate of increase on the payment of maintenance allowance. In some areas the courts are fixing 5% annual increase while in other area the courts are fixing the increase up to 30% per annum. In this manner, the courts are burdening opponent in unpaved way. It is the need of the day to make such amendment in the family law, so that the courts could impose the increase in the payment of maintenance allowance to the minor by keeping in view the growing needs and price hike in the articles used by the minor for living proper life in the society. The courts thus have left with no jurisdiction to grant the increase without having statutory sanction. They cannot be licensed to impose a penalty upon the father to pay the maintenance allowance with the increase in absence of any mandate of the legislature. It has also experienced the growing trends of the female folk who have developed habit of procuring ex parte decree of maintenance with an increase resulting in colossal outstanding amount at the credit of the husband where after an execution petition is instituted for the recovery of the said amount. In some cases it is observed that the males are always not in a position to liquidate the said decretal amount, consequently they have to face detention in the jail. The legislature is expected also to safeguard the rights of the males of the society. For this purpose, the Courts are being used as tool to procure decrees and for its execution later on. It is recommended in this connection that some beneficial amendment in section 25 of the Act 1964 be promulgated putting some check and embargo for filing family matters in area where husband or the parents of female reside like the provisions contained in Muslim Family Law Ordinance, 1961, in respect of sending notice of talaq in Union Council where wife resides or Nikah is registered. This will help in curbing practice of institution of family cases at places where female never visited or resided. This will further support in reduction of unnecessary The crux of the whole discussion is that grant of 15% increase per annum by learned First Appellate Court is wholly unwarranted, as such, to this extent the impugned judgment is required to be modified.
9. For the foregoing reasons both the petitions are partly allowed by deleting the grant of increase of 15% upon the maintenance allowance of Rs,3,000/- determined for the minor. The office is directed to send a copy of this judgment to the quarter concerned for considering recommendations made in the judgment in hand.
10. For the foregoing reasons both the petitions are partly allowed by deleting the grant of increase of 15% upon the maintenance allowance of Rs, 3000 determined for the minor. The office is directed to send a copy of this judgment to the quarter concerned for considering recommendations made in the judgment in had.