' SHEZADA MAZHAR, J. --- Through this petition under Article 199 of the Constitution of islamic Republic of Pakistan, 1973, the petitioner calls in question the validity of judgment and decree .Dated 16.03.2011 passed by the learned District Judge, Bahawalnagar whereby the said Court partly accepted the appeal of respondent No, 3 and awarded maintenance to the minors from the date of institution of the suit till their marriage at the rate fixed by the learned Judge Family Court from the date of institution of the suit instead of six years granted by the learned Trial Court
2. The facts necessary for disposal of the present petition are that the petitioner/plaintiff alongwith her two minor daughters filed a suit against respondent No, 3 for dissolution of marriage on the basis of Khulah and maintenance allowance at the rate of Rs, 2000/- per month for the previous six years as well as future maintenance at the same rate till the expiry of Iddat period of petitioner No, 1 and to the extent of minors at the same rate for future also. The said suit was contested by respondent No, 3 on legal and factual grounds. The learned Judge Family Court framed following issues out of divergent pleadings of the parties:- ISSUES 1: Whether plaintiff is entitled to get decree for dissolution of marriage on the ground mentioned in plaint? OPP
2. Whether plaintiffs are entitled to recover maintenance allowance from defendant. If so, for what period and to what extent? OPP
3. Relief.
' The learned Judge Family Court decreed the suit to the extent of dissolution of marriage on the basis of Khula, awarded maintenance allowance at the rate of Rs, 2000/-per month to the extent of petitioner No, 1 only for lddat period and to the extent of minors at the rate of Rs, 1500/-per month per head for the last six years prior to institution of suit till their marriage with 15% annual increase, vide judgment and decree dated 26.01.2011. Against the said judgment and decree, respondent No, 3 preferred an appeal which was partially accepted and learned Addl. District Judge.
Bahawalnagar modified the judgment and decree vide order dated 16.03.2011 to the extent of period of six years and awarded maintenance to the minors from the date of institution of the suit till their marriage. The present writ petition has been filed by the petitioner with the prayer that the judgment and decree dated 16.03.2011 passed by learned Addl. District Judge Bahawalnagar may kindly be set aside and the petitioner's maintenance may kindly be enhanced.
3. The learned counsel for the petitioner by referring the impugned judgment and decree dated 16.03.2011 submits that no reason has been given by the learned Addl. District Judge for refusing the maintenance of last six years. He referred to Para No, 13 of the impugned judgment which states "they are entitled for their maintenance allowance from the date of institution of the suit and not for the last 06 years. Resultantly the findings of learned Judge Family Court on this issue are modified accordingly and this issue is partly answered in favour of plaintiffs." Further submits that learned Addl. District Judge himself observed in the impugned judgment; that maintenance of minors. Is the responsibility of father, . However, he refused the past maintenance without giving any cogent reason. While relying upon Muhammad Nawaz v. Mst. Khurshid Begum & 3 others (PLD 1972 SC 32) and Muhammad Shard v. Additional District Judge & others (2007 SCM R 49), the learned counsel prayed for acceptance of appeal and setting aside of impugned judgment and decree of learned Addl. District Judge, Bahawalnagar.
4. On the other hand, learned counsel for respondent No, 3 submits that there is no provision available in the West Pakistan Family Courts Act, 1964 which allows increase in the maintenance allowance, therefore, the order to the extent of increase is illegal and is liable to be set aside and in this regard relied upon Rana Muhammad Ashraf v. Tanveer Kausar & others (2011 CLC 199). Further submits that Family Court can grant past maintenance allowance upto three years only. Adds that Courts below have not considered the evidence placed on record which shows that the record produced relates to one Mst. Zohra Fatima daughter of Manzoor. Further submits that despite repeated demands, the petitioner has not produced the minors before the Court. Further submits that as per information of respondents No 3. The minors have already been got married, so respondent No, 3 is no more liable for their maintenance.
5. Arguments heard. Record perused.
6. The basic controversy in this matter between the parties is with regard to the grant of past maintenance for the last six years and award of 15% annual increase in the maintenance allowance of the minor daughters. The contention of the learned counsel for respondent No, 3 that 15% annual increase is without the backing of any provision of law seems logical at the first glance, however in-depth study of the relevant provisions of the West Pakistan Family Courts Act, 1964 (WPFCA) reveals that the Family Court had discretionary power to fix the maintenance allowance of the minors. Section 5 of the West Pakistan Family Courts Act 1964 (WPFCA) grants exclusive jurisdiction to the Family Courts to deal with the matters mentioned/specified in Part 1 of the Schedule. In schedule, "maintenance" is mentioned at serial No,
3. Nowhere in the West Pakistan Family Courts Act, 1964, (WPFCA) exist any provision which impose any restriction upon the Family Court with regard to the question Of maintenance. As it is the discretion of the Family Court, therefore the same has to be applied reasonably keeping in view the financial position of the party involved. It is for this reason that rate of maintenance allowance is different in each case. The concept of annual increase is also part of the discretion and is related to the needs of the growing child. With the passage of time the needs of the child also increase and in order to meet the said growing needs of the child the Family Courts fixed annual increase in the maintenance allowance.
The fixing of annual increase also finds support from the ever increasing rates of commodities in the market.
7. Therefore, in view of the above discussion, as there is no restriction imposed upon the Family Courts in the West Pakistan Family Courts Act, 1964, the Family Courts have the power to not only fix the rate of maintenance as per the financial position of the father but also have the power to fix the rate of annual increase in the maintenance allowance of the minor.
8. This brings me to the second question, the time limit for which Family Court can grant past maintenance. The Courts have time and again held that past maintenance is governed by the provision of Article 120 of the Limitation Act, 1908 which prescribe a period of six years from the date when the right to sue is accrued. In this regard the judgment Muhammad Nawaz v. Mst. Khurshid Begum & 3 others (PLO 1972 SC 302) relied upon by the learned counsel for the petitioner is very much relevant wherein it was held that wife can claim maintenance for the past six years on the basis of Article 120 of the Limitation Act, 1908.
9. In view of the above discussion while accepting the instant writ petition the impugned judgment and decree dated 16.03.2011 passed by the learned Addl. District Judge is hereby set aside and judgment and decree dated 26.01.2011 passed by learned Judge Family Court is hereby maintained.