IBAD,UR-REHMAN LODHI, J.---Through this Constitutional petition, the petitioner called-in-question the order passed by the learned Judge Family Court on 24-12-2011, whereby, the learned Judge Family Court fixed interim maintenance for the minor, namely, Tahreem in view of the jurisdiction, as was assigned to such Court under section 17-A of the West Pakistan Family Courts. Act, 1964, which is re-produced herein below for ready reference:-- "17-A. Interim order for maintenance. ---At any stage 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".
2. At the time of limine hearing of this petition, it was noted that although this Court ordinarily is reluctant in entertaining a petition against an interlocutory order; however, the financial constraints, which were expressed by the learned counsel for the petitioner, who was burdened by the learned Judge Family Court with payment of interim maintenance at the rate of Rs,3,000 per- month to the minor, which according to the learned counsel for the petitioner, was beyond the financial means of the petitioner, it was considered appropriate to accommodate both the sides, and respondent No,2 be hear& therefore, notice was issued to the said respondent.
3. As expected, the learned counsel for respondent No,2 vehemently opposed the filing of Constitutional petition directly in this Court challenging the interlocutory order, passed by the learned Judge Family Court, and prayed for the dismissal of the Constitutional petition, as being not maintainable.
4. I have experienced that in a number of cases, the father, who has been asked to provide interim maintenance to his minor children challenges the vires of such orders in writ jurisdiction and normally the Constitutional petitions are dismissed for the reason that interlocutory order on each occasion has been considered as not being challengeable.
5. At the same time I have noticed that the learned Judges presiding over the Family Courts without taking into consideration some basic factors, which were necessarily to be taken into account, used to pass the interim orders for payment of tentative maintenance to the minors. At times, in case of some probe, it is ultimately proved that the father was heavily burdened beyond his known means.
6. This leads me to go through the earlier view of this Court in such like circumstances as reported in Mst. Sitwat Chughtai and another v. Judge, Familt Court, Lahore and another (PLD 2009 Lahore 18). The relevant extracts from the reported case, which are necessary for the present purposes are as under:--
(i) Purpose behind insertion of section 17-A in Family Courts Act, 1964 is to ensure that during pendency of proceedings with Family Court, financial constraints faced by minors are ameliorated;
(ii) Family Court should broadly look into social status of parties,earning of defendant, his capacity to pay and requirements of minor is the touchstone on which Family Court should fix interim maintenance;
(iii) For the reason that no right of appeal etc. Has been provided against fixation of interim maintenance, such order being tentative and interim in nature, the Family Court should be more careful and precise in such context to ward off any injustice.
' From the above, it is manifest that the order for payment of interim maintenance can be a valid order during pendency of proceedings before the Family Court.
7. When this power to grant interim maintenance was extended to the Judges of the Family Courts by means of section 17-A of the West Pakistan Family Courts Act, 1964, which was inserted in Act XXXV of 1964 by virtue of Ordinance No,LV of 2002, at the same time, through the same legislation, section 12-A of the Act was also substituted in the West Pakistan Family Courts Act, 1964 i.e, Family Courts (Amendment) Ordinance, 2002 by virtue of section 8 of the above-mentioned Amending Ordinance, which provides mandatorily that the Family Court shall dispose of a case within a period of six months from the date of institution and by virtue of proviso to such Section, it is provided that where a case is not disposed of within six months, either party shall have a right to make an application to the High Court for necessary direction as the High Court may deem fit.
By joint reading of sections 17-A and 12-A of the West Pakistan Family Courts Act, 1964 (hereinafter to be referred as the Act), what comes out is that when the Family Court was made competent to pass an interim order for payment of maintenance, it was at the same time, made incumbent for the same Court to dispose of the case pending before it within a period of six months from the date of institution, meaning thereby, that the order passed under section 17-A of the Act for payment of interim maintenance would, at the most, be effective for a period of A six months, which time has been allocated by virtue of section 12-A of the Act for final disposal of a lis pending before a Judge Family Court and, when the maximum age of an interim order passed under section 17-A of the Act expires, the proceedings, if continued before the Family Court, the same would be considered violative to the provisions of. Section 12-A of the Act and this Court by virtue of proviso attached to section 12-A of the Act has been made competent to take notice of pendency of a family suit beyond the period of six months and to pass any direction as deem fit.
8. So if a harsh order is passed by a Family Court under section 17-A of the Act, it can continue to hold field maximum for a period of six months and if the proceedings in the suit before the Family Court, wherein such interim order was passed, continued beyond the stipulated period, this Court would be competent to pass any direction as it may deem fit. Not only the proviso to section 12-A of the Act empowers this Court to take notice of the long pendency of the family suit beyond prescribed period of time, but, if the proceedings in a suit from the date of institution, would continue after the period of six months, it would also be considered' as an illegality and violation of statutory provisions of law and under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, even this Court would be competent to declare the act on the part of the Family Court in continuing with the proceedings of a suit beyond the period of six months, as without lawful authority and of no legal effect. It is, thus, held that the age of an order passed under section 17-A of the Act will maximum be six months and if the proceedings are not concluded in the main suit in which the interim order under section 17-A of the Act was passed, the learned Judge Family Court would not insist the implementation upon such interim order, rather the matter will be reported to this Court by the trial Court itself, or in case of failure on its part, to intimate such fact to this Court, either party shall have a right to bring into the notice of this Court such illegality, being continued in the trial of the Family Court and this Court either under proviso to section 12-A of the Act or under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 would pass appropriate orders and then re-consider the quantum of maintenance, which was earlier, granted on interim measures on the basis of the proceedings so far taken by the learned Judge Family Court in shape of evidence of the parties or other material brought on record to evaluate the social/financial status of the parties and also the capacity of the father to pay any maintenance.
By this arrangement, not only the mandatory provisions of Section 12-A of the Act can effectively be implemented, but if a defendant in the suit is burdened beyond his financial capacity, his miseries can be redressed to some extent as it should be the intention of law.
9. In the present case, the suit was filed on 26-10-2011, and order for payment of interim maintenance was made on 24-12-2011, but, the mandatory provisions of section 12-A of the Act have not been taken into consideration, thus, it is held that the proceedings beyond six months of the date of institution are being conducted in violation of the mandatory provisions of section 12-A of the Act, without there being any intimation to this Court, and by exercise of powers in view of proviso to section 12-A of the Act, the learned Judge Family Court is directed to conduct the proceedings in this case on day to day basis and try to conclude the same by 25th of this month, positively, without fail and ultimate conclusion of the trial would be intimated to this Court through the Deputy Registrar (Judicial), and in the meanwhile, till final conclusion of the trial, the petitioner would continue to make payment of interim maintenance, as was fixed by the learned Judge Family Court.
10. With these observations, this petition stands disposed of.