' MUHAMMAD KHALID MEHMOOD KHAN, J.---The only ground canvassed by learned counsel for petitioner is that learned trial court was not justified to grant 15% annual increase in the maintenance allowance of minors as no law permits the learned trial court to pass such order.
2. The petitioner assailed the order of learned Judge Family Court whereby he was directed to pay maintenance allowance of minors at the rate of Rs,3000 per month along with 15% annual increase.
The learned appellate court reduced the annual increase from 15% to 10%
3. The argument of learned counsel for petitioner is that petitioner has 3 wives and 9 children and it is very difficult for him to pay the maintenance allowance along with annual increase to respondents in his meager financial resources. He further submits that there is no provision of law in West Pakistan Family Courts Act, 1964 which permits the learned judge family court to grant annual increase in the maintenance allowance payable to the minors. He has relied on Muhammad Anwar v. Nadia Nasreen and others (PLD 2012 Lahore 110).
4. The argument of learned counsel for petitioner is that no provision of law permits the learned judge family court for grant of annual increase in the maintenance allowance of minors and in the absence of any statutory provision of law, the court has no power to grant any annual increase.
5. It is an admitted fact that Family Court established under the West Pakistan Family Courts Act, 1964, has the jurisdiction to grant the maintenance allowance to the minor Children, the grant of annual increase no doubt is not found mentioned in the relevant provision of law, but it is equally correct that in the entire provision of law there is no restriction against the powers of family court to grant the annual increase in the maintenance allowance.
6. Prior to the promulgation of West Pakistan Family Court Ordinance,. 1961 and Act, 1964, the maintenance allowance of the minor children was payable under section 488 of the Criminal Procedure Code, 1898. The perusal of provisions of West Pakistan Family Courts Act, 1964 will show that it is more beneficial legislation, the span of enquiry was extended and a right of appeal was also provided to the parties concerned. The comparison of section 488 Code of Criminal Procedure, 1898 and the West Pakistan Family Courts Act, 1964 came up before the Hon'ble Supreme Court of Pakistan and Hon'ble Supreme Court of Pakistan opined in a case Adnan Afzal v.
Capt. Sher Afzal (PLD 1969 SC 187) as under:- "A comparison of these provisions thus indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters."
7. The Hon'ble Supreme Court of Pakistan in the said judgment also held as under:-- "With regard to a proceeding for maintenance under section 488 of the Code of Criminal Procedure, however, it has to be pointed out that the proceeding is of a summary nature and the maximum amount that a Magistrate can order thereunder is only Rs,400 in the aggregate. No such limitation is fixed under the Family Courts Act, but the Family Court is also invested with the powers of a Magistrate for the purposes of section 488 of the Code of Criminal Procedure in addition to its powers as a Family Court. It, therefore, can exercise both the jurisdictions if so considered necessary. Again, no appeal lies from a proceeding under section 488 of the Code of Criminal Procedure. It can only be revised under sections 435 and 439 of the Code of Criminal Procedure. But an order of a Family Court is appealable. This is a valuable right, for, a revision is not, like an appeal, a matter of right."
8. Again the issue whether the Family Court can grant the maintenance to child came before the Hon'ble Supreme Court of Pakistan in Muhammad Khali-ur-Rehman v. Mst. Shabana Rahman and others (PLD 1995 Supreme Court 633).
9. The Hon'ble Supreme Court of Pakistan held that "Grant of maintenance provided under section 488, Cr. P. C. Is specifically covered by the provision of West Pakistan Family Courts Act, 1964, the Family Court has had the exclusive jurisdiction, after the promulgation of West Pakistan Family Courts Act, 1964 to try the case of maintenance."
10. It is now an established principle of law that Family Court has the jurisdiction to grant maintenance to the minor children, the objection raised by the learned counsel for the petitioner is that Family Court under no provision of law is enjoying jurisdiction to grant any annual increase of maintenance and has placed reliance on Tauqeer Ahmed Qureshi v. Additional District Judge and others (PLD 2009 SC 760)
11. The facts of this case are distinguishable, in the said case the learned judge family court allowed 20% annual increase on the granted maintenance, the matter stand finalized and the judgment debtor in execution of decree raised the objection about the award of annual increase and the parties before Hon'ble Supreme Court agreed for the payment of annual increase @ 5% instead of 20%.
12. The Hon'ble Supreme Court of Pakistan held as under:-- "10. There is no cavil to the proposition that the executing Court cannot go behind the decree but at the same time the executing Court can look into the questions whether the decree or part thereof is executable or inexecutable and if for any reason the decree has become inexecutable, the executing Court is empowered to declare so and if a part of the decree is inexecutable and that part is severable from other part(s) of the decree then the executing Court is empowered to refuse the execution of the inexecutable part of the decree and may proceed with the execution of the rest of the decree. In the present case, there is nothing on the record to show that the appellant has the means to pay the increase as ordered by trial Court. As for the future prospects, the minors can always approach the Family Court for the increase in the maintenance allowance due to any change in the circumstances. The impugned judgments of the High Court and the Courts below are, therefore, not sustainable to the extent of annual increase of 20% in the maintenance allowance of the respondent's minors who shall be entitled only to the 5% annual increase in such an allowance as offered by learned counsel for the appellant, which in our opinion will meet the ends of justice."
13. The rule laid down by the Hon'ble Court thus establishes that the executing court can go behind the decree when the circumstances so warrants and the question for grant of annual increase was settled on the statement of parties. The Hon'ble Supreme Court of Pakistan has not held that family court has no power to grant annual increase in the maintenance allowance. It is an established principle of law that the decree holder of maintenance allowance can file an application for enhancement of maintenance allowance if the circumstances so warrants, meaning thereby the family court is enjoying the powers to revise the maintenance allowance specially the maintenance allowance of minors during the period of his/her legal entitlement according to the prevailing circumstances, keeping in view of the said jurisdiction, it has to be seen whether the family court in the absence of specific provision while passing the decree for payment of maintenance allowance, can grant the annual enhancement of the maintenance allowance specially the maintenance of minor.
14. It is the rule of interpretation where literal construction or plain reading of provision of law creates absurdity or uncertainty or hardship, the courts should interpret the law liberally to arrive at a just, reasonable and sensible conclusion.
15. Every law is enacted in furtherance of justice by passing or ignoring the technicalities. No doubt the function of the court is only to expound the law and not to legislate the law, but in all matters the legislature cannot be asked to sit and to resolve the difficulty cropped up in the true implementation of law in its true letter and spirit. The courts in these circumstances enjoy the powers to interpret the law in creative manner under the Constitution of Islamic Republic of Pakistan the right to life is the fundamental right of every citizen of Pakistan, hence the family court while deciding the question of payment of maintenance allowance to minor has to keep in mind the fundamental right of the minor "right of life".
16. The Hon'ble Supreme Court of Pakistan in a case reported as Messrs, Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary Wo Finance, Islamabad and 6 others (PLD 1997 Supreme Court 582) has held as under:- "Since this power is contained in our Constitution, our approach while interpreting the same should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be narrow and pedantic but the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived their context".From
17. In a case reported as Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 2011 Supreme Court 260) the Hon'ble Supreme Court of Pakistan has held as under:- "Because according to the literal approach of reading a statute, the statute has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. Besides, the addition and substraction of a word in a statute is not justified, except where for the interpretation thereof the principle of reading in and reading down may be pressed into service in certain cases".
18. The principle of reading in and reading down has been explained in Mittal in Interpretation of Taxing Statutes as under:-- "The theory of reading down is a rule of interpretation resorted to by the Courts where a provision, read literally, seems to offend a fundamental right, or falls outside the competence of the particular legislature. In interpreting the provision of a statute the courts will presume that the legislation was intended to be inter vires and also reasonable. The rule followed is that the enactment is interpreted consistent with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactment to the extent that is permissible.
Legislature is presumed to be aware of its limitations and is also attributed an intention not to over-step its limits. To keep the act within the limit of its scope and not to disturb the existing law beyond what the object requires, it is construed as operative between certain persons, or in certain circumstances, or for certain purposes only, even through the language expresses no such circumstances of the field of operation. To sustain law by interpretation is the rule The reading down of a provision of a statute puts into operation the principle that so far is reasonably possible to do so, the legislation should be construed as being within its power. It has the principal effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the court will construe it in a more limited sense so as to keep it within power. If certain provision of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional the court would lean in favour of the former construction".
19. The other aspect of the case is that the family court if grants maintenance to a child when he is of an age of one year, the requirement of minor is only food and cloths, but when the minor has to start his schooling, further expanses will be required to meet the educational and other expanses. If the argument of the learned counsel is accepted that the family court has no powers to grant the annual increase, the result will be that minor will not be able to get the education even it will be very difficult for him to cope with the growing requirements of life hence it will be negation of right of life of child. It is settled principle of law that father is duty bound to provide the maintenance to the male and female children for a specific period i,e, till the age of majority and the marriage of the female child. No doubt the minor can approach the court for enhancement of maintenance allowance as per his/her reasonable growing need but in this case every year the minor has to approach the court for the ascertainment of his/her expenses and till that time the court decide the issue, it will be to late. Hence the argument of learned counsel is not workable and amounts the denial of guaranteed right of life of the minor.
20. In view of the above said discussion it is established that Family Court has the powers to grant annual increase in the maintenance allowance of the minor, but while granting the annual increase the court is bound to consider the financial status of the father and the reasonable requirement of the minor. The annual increase should be just and reasonable backed by cogent reasons. In the instant case the learned appellate court has reduced the annual increase from 15% to 10% which is reasonable in the circumstances.
21. The upshot of the above discussion is that petition fails and is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.