IBAD-UR-REHMAN LODHI, J.---Through this common judgment, W.P. No,11182 of 2011 and W.P.
No,21093 of 2011 are to be disposed of as both arise from one judgment in between the same parties.
2. The petitions are still at pre-admission stage, thus with the concurrence of learned counsel for the parties, the above said petitions are being heard as Tacna case today.
3. Originally Dr. Faiza Bashir, on her own behalf and for the benefit of her real minor daughter Isha Nasir, filed suit before the learned Judge Family Court, Gujranwala, seeking dissolution of marriage and for recovery of maintenance for both plaintiffs and also for dowry articles or in lieu thereof value @ Rs,2,08,000/-.
4. On account of failure of reconciliation proceedings, the suit to the extent of dissolution of marriage was decreed on 5-9-2009 and against that decree in lieu of "Khula", the right of dower was forgone by the lady, whereas with regard to the remaining claim in suit, the learned Judge Family Court proceeded to pass a decree on 30-1(-2010 in the manner that the claim of dowry articles was declined, however the expenses, incurred on the birth of minor, were granted at the rate of Rs,35,000/- and Rs,39,000/- were further granted to Dr. Fiaza Bashir as expenses over her treatment.
' To minor Isha Nasir, maintenance at the rate of Rs,3000/- per month for the period from 20-11- 2008 to March, 2010 and onwards till her marriage at the rate of Rs,9000/- per month with 10% annual increase with an option to review the rate of maintenance keeping in view the academic requirements of the minor.
5. Both the sides preferred separate appeals which came up for hearing before the learned Addl.
District Judge, Gujranwala on 26-4-2011 and by means of a consolidated judgment the view taken by the learned Judge Family Court was upheld by dismissing both the appeals.
Nasir Ahmad and Dr. Faiza Bashir and minor baby Isha Nasir called in question the findings of the courts below to the extent as to what they felt the level of deprivation.
6. The main contention of learned counsel for Nasir Ahmad is that not only that the monthly maintenance allowance for the minor was fixed at much exorbitant rate but he has seriously questioned the levy of annual increase at 10% in the granted maintenance. The learned counsel, in support of his contention challenging the annual automatic increase in the grant of maintenance to the minor, has placed reliance on the cases of Muhammad Anwar v. Nadia Nasreen and others (PLD 2012 Lahore 110), M. Umar Fraz v. Additional District Judge and others (PLD 2012 Lahore 170) and Khadeeja Bibi and others v. Abdul Raheem and others (2012 SCM R 671) and contends that unless the legislature by way of some amendment in the relevant laws, provide such annual increase in the maintenance to the minor, the courts at their own cannot extend such relief to any party in the suit tried under Family Laws.
7. In comparison whereof, the learned counsel for Dr. Faiza Bashir and Isha Nasir has not only supported the grant of maintenance but also prays for the increase in already fixed maintenance.
He has also supported 10% annual increase in the maintenance granted to the minor.
8. I have gone through the record and after hearing the arguments, am of the view that reading of the material available on record do prove that apparently, Nasir Ahmad is a man of means and not only that he can easily afford the payment of maintenance as has been fixed by the courts below but also the annual increase therein would not be a burden beyond his capacity and known means.
' To some extent the learned counsel for Nasir Ahmad is justified in challenging the findings of the learned first appellate court on issue No,2 wherein with reference to Exh.P.18, the school fee of the minor has been shown as Rs,7725/- per month. The perusal of document Exh.P.18, a fee challan for tuition fee issued by the Educators Pre-School, Model Town Campus, Gujranwala reveals that total dues against tuition fee etc. Per month were charged through said document as Rs,3500/- whereas an amount of Rs,3945/- has been shown as arears and total payable through said challan form was shown as Rs,7725/- which has been taken as a monthly fee payable with regard to the minor by the learned first appellate court. To that extent, the view taken needs modification and it is accordingly modified and the monthly fee of the minor for the year 2010 is ordered to be presumed as Rs,3500/-. The learned trial court by presuming the monthly school fee of the minor as Rs,7725/- has maintained the rate of maintenance at Rs,9000/- which by consideration of the admitted monthly income of Nasir Ahmad at Rs,25,000/- seems to be at some higher scale and when 10% annual increase has also been imposed, there is a justification in reducing such rate of maintenance and as such the rate of maintenance from April, 2010 on wards is ordered to be reduced to Rs,9000/- per month to Rs,6000/- per month with 10% annual increase therein. With regard to remaining findings both the sides have failed to convince the Court with regard to their respective claims and as such the remaining findings of the courts below are affirmed.
9. Now this Court is going to deal with issue of validity and legality of annual increase as is being granted by the family courts, particularly, when the maintenance is being granted to the minors.
The learned counsel for Nasir Ahmad has relied upon the above mentioned three judgments, two from this Court and one from the Hon'ble Supreme Court of Pakistan. This Court in Muhammad Anwar's case (Supra) is of the view that annual increase in the payment of maintenance to the minors is not provided in any provision of Family Courts Act, 1964 and that it is for the legislature to take into consideration, the growing prices of articles of daily use where after the same could legislate the law for imposing the annual increase but by the time such amendment is not made through some legislation, the courts have no jurisdiction to impose or levy any increase which lacks the statutory sanction.
' In M. Umer Fraz's case (Supra), again this is the view of the same Bench of this Court that annual increase in the maintenance has no statutory sanction and that duty of the court is to implement the law as has been enacted and'that the courts are not to be allowed to challenge the wisdom of legislature. In the same report the learned Judge is of the view that in such cases the courts are being used as tool to impose the penalty over the father.
' The Hon'ble Supreme Court of Pakistan, in Khadeeja Bibi's case (supra), when the question of imposition of annual increase was raised before, has held that in absence of any evidence on the point of annual increase, the courts should refrain from imposing such annual increase in the payment of maintenance to the minors and further observed that parties in suit for- maintenance are to be allowed to produce evidence on the point of annual increase and then the court should proceed to decide as to the quantum of annual increase.
10. The maintenance as is defined in paragraph 369 of Muhammadan Law by D.F. Mulla includes food, raiment and lodging and by virtue of paragraph 370 of the same collection, a father is bound to maintain his sons until they have attained the age of puberty and their daughters until they are married.
The term "maintenance" is defined in Black's Law Dictionary (Eighth Edition) as financial support given by one person to another.
11. In Pakistan for expeditious settlement and disposal of disputes relating to marriage and family affairs and matter connected therewith, Act XXXV of 1964 known as West Pakistan Family Courts Act, 1964 was promulgated. Section 5 whereof provides jurisdiction to the Family Court to entertain, hear and adjudicate upon matters specified in Part-1 of the Schedule. In the Schedule at serial No,3 subject of maintenance is - provided. It is pertinent to note that while giving the jurisdiction to the Family Courts to hear, entertain and decide the matters relatable to the maintenance, no limitations are provided either in Section 5 of the West Pakistan Family Courts Act, 1964 or Schedule provided thereunder as to, to what extent the rate of maintenance can be fixed. It is left open for the courts to determine and it is always the financial and social status of the parties, the requirements of the persons to whom the maintenance is - to be granted and the evidence of the parties proving such requirements that the Family Courts are independently allowed to fix the rate of maintenance. This is the reason that in every case the rate of maintenance varied for the reason that this has been left upon the discretion of the courts that at whatever rate they deem appropriate the rate of maintenance can be fixed. Then in conspicuous absence of any prohibition in the statutory provisions providing the maintenance to the needy minors, how a restriction can be imposed as to. The power of the court to order annual increase in the already fixed maintenance. So with respect, the view taken in "Muhammad Anwar and M. Umar Fraz's case (Supra)" is not being followed particularly, on account of the fact that the view in Muhammad Anwar's case (supra) was taken on 26-9-2011 and in M. Umar Fraz's case (Supra), it was on 11-10- 2011 and the Hon'ble Supreme Court of Pakistan in Khadeeja Bibi's case (Supra) observed on the subject on 21-2-2012 and further that the Hon'ble Supreme Court of Pakistan has not negated the concept of annual increase but only require that before levy of annual increase in the maintenance the parties were to allow the production of evidence on such point.
12. The amendments carried out in the West Pakistan Family Courts Act, 1964 by means of Ordinance LV of 2002 i.e, Family Courts (Amendment) Ordinance, 2002 are of much significance for the present purposes. The view taken in the earlier two judgments of this Court to the effect that only legislatures are competent to provide an annual increase and in absence of any statutory sanction, the courts are not competent to grant such increase, is answered in the said amending Ordinance. By means of section 2 of the Ordinance, 2002, section 5 of West Pakistan Family Courts Act, XXXV 1964 was amended and subsection (3) was added in section 5 in the following manners:- "Section 5(3). The High Court may with approval of the Government, amend the schedule so as to alter, delete or add any entry thereto". .
' Thus keeping in view the dictum laid down in Khadeeja Bibi's case (Supra) by the Hon'ble Supreme Court of Pakistan, the power to grant annual increase in the maintenance to the minors will be available to the Family Courts but with a condition that evidence on the point must be available on the record and secondly no reference is required to legislature in presence of power available to this Court as was granted by the legislature itself by means of section 5(3) of West Pakistan Family Courts Act, 1964 as amended up to date.
' A recommendation to the Administration Committee or Full Court would be justified to add an entry at serial No,3 of the Schedule to West Pakistan 'Family Courts Act, 1964 by addition of annual increase in the already existed entry of maintenance.
13. The concept of annual increase in the maintenance would further get strength from the fact that no fixed rate of maintenance is provided by the legislature and as noted earlier, it was always dependent on the circumstances of each case that the Judges, hearing the family cases' in their own wisdom and on the basis of available material they fix the rate of maintenance, for the reasons that every year the minor grows elder by at least one year and with growing age the basic requirements of life are also grown and during near past, we have experienced that on every year the prices in open market raised. The rate of inflation is increasing day by day. The price hike indicators are always on higher scale and the persons having their emoluments from public sector are benefited every year with increase in their financial home carries.
14. The Family Courts are always deemed to exercise their parental jurisdiction and are supposed to look into the future needs of the minors to whom they are giving maintenance in their age of infancy or tender age. The maintenance should not be considered as a charity and the dignity of minors is to be maintained which every citizen under the Constitution of Pakistan has a right that he should be respected. The minor is not supposed to make a person to stand in attendance before father every year or to appear before. The Family Courts with folded hands for annual increase of maintenance. This would be violative to the dignity of a person as is guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973.
15. Hence while disposing of both the writ petitions, the decrees granted by both the learned courts below are modified as indicated in para. 8 above. It is further observed that annual increase in the payment of maintenance to the minors by the father can lawfully be imposed by the Judges in Family Courts.
16. The Registrar of this Court is directed to place this judgment before the Hon'ble Chief Justice with a view to add suitable entry against column No,3 of the Schedule provided in Family Courts Act, 1964 by exercising the powers provided in section 5(3) of the Act.