' IRFAN SAADAT KHAN, J.---This Constitutional Petition has been filed with the following prayers:-- "It is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the impugned order dated 3-12-2012 passed by learned XXth Civil and Family Judge, Karachi-East in Family Suit No,2499/2012 in the interest of justice".
2. Briefly stated the facts of the case are that the petitioner was married to respondent No,4 and two daughters thereafter were born to them. Out of them one now is major whereas other is minor, both of them are living with their mother. Respondents Nos.2, 3 and 4 filed a Family Suit No,124/2012 (New Number 2499/2012) for maintenance, whereas the petitioner filed a suit for the custody of minors bearing No,712/2008, which is also pending adjudication before the concerned Court.
Respondents Nos.2 to 4 have requested for grant of maintenance at the rate of Rs.1,15,000 and Rs.1,11,000 respectively, whereas the petitioner in his written statement has agreed for payment of maintenance at the rate of Rs.25,000 per month to respondent No,3 only, who is minor. The matter proceeded before the Family Judge, who vide order dated 3-12-2012 passed an interim order whereby an amount of Rs.70,000 per month, payable by 14th of each month, being maintenance allowance has been fixed. It is against this order that the present petition has been filed.
3. Mr. Mustafa Safvi, Advocate has appeared on behalf of the petitioner and submitted that a perusal of order would reveal that it is a non-speaking and sketchy order as the learned Judge has failed to record any evidence that as to how he has reached to the conclusion that an amount of Rs.70,000 per month would be fair for the maintenance of the daughters, by totally ignoring the averments of the petitioner wherein he has categorically stated that due to his financial position he could contribute only a sum of Rs.25,000 per month for the maintenance. He submitted that in the written statement he has categorically mentioned about the earning capacity of the petitioner but no heed in this regard was paid by the learned Judge. He, therefore, submitted that .Since the rate of the maintenance has been arbitrarily fixed without looking to the financial condition of the petitioner, the said order is liable to be set aside.
4. Mr. Ch. Atif Rafiq, Advocate has appeared on behalf of private respondents Nos.2, 3 and 4 and vehemently opposed the said request of the learned counsel for the petitioner and at the very outset stated that the present petition is not maintainable since the petitioner has approached this Court with unclean hands and the same has been filed against an interlocutory order against which a petition is not maintainable. While elaborating his view point learned counsel submitted that section 17-A of the West Pakistan Family Courts Act, 1964, is quite clear in this regard and if the said section is read in juxtaposition with 'section 14 of the said Act, it would be clear that interlocutory orders are not appealable. He, therefore, submitted that the said petition is liable to be dismissed. In support of his contentions the learned counsel has relied upon the following decisions : --
(1) Saghir Ahmad Naqvi v. Province of Sindh (1996 SCMR 1165)
(2) Abrar Hussain v. Mehwish Rana (PLD 2012 Lahore 420)
(3) 2009 MLD 791
(4) Aamer Mehmood Hussain v. Naeha Aamer Sayed (2011 MLD 1105)
(5) Muhammad Irfan v. Judge, Family Court, Sargodha (2008 CLC 585)
(6) K.M. Asaf v. Abdullah (PLD 1976 Lahore 158)
5. So far as the merits of the case are concerned, learned counsel submitted that the petitioner being father is liable to pay the maintenance of his daughters, who at present are studying in Cambridge which fee is quite high. He invited my attention to para-8 of the plaint filed before the trial Court wherein a table regarding the maintenance expenditures of respondents Nos.2 and 3 has been given. Learned counsel thereafter invited my attention to para-9 of the written statement, filed by the petitioner, and submitted that as per the averments of the petitioner himself in a period of 18 months and 28 days he has earned an amount of US $ 166,946 which amply proves that he is earning substantial amount in US Dollars as he is a Chief Officer in Merchant Navy and is in a position to bear the maintenance expenses of his daughters, as claimed by them. In support of above contention the learned counsel has relied upon the following decisions:-
(1) Muhammad Ali v. Judge Family Court, Depalpur (2010 YLR 520),
(2) Ch. Muhammad Bashir v. Mst. Ansarun Nisa (2012 MLD 1394)
(3) Yaqoob Ahmed v. Mst. Shaista (2008 CLC 654)
6. Counsel for the petitioner, while giving his rebuttal, submitted that the petition is maintainable since it is a trite proposition of law that when an impugned order is perverse and not sustainable in law, petition in respect thereof is maintainable. In support of his contention the learned counsel has relied upon the following decisions:
(1) Faisal Hanif v. Baby Mahnoor (2002 CLC 1754)
(2) Muhammad Arif Butt v. Deputy Commissioner/Collector, Gujranwala (2005 YLR 1604)
' He further submitted that this Court by looking at the facts and circumstances of the case and by looking at the paying capacity of the petitioner has the jurisdictioh to even reduce the maintenance amount fixed by the Family Court. In support of this contention the learned counsel has relied upon the following decisions:
(1) Zafar Hussain v. Begum Farzana Nazli and others PLD 2004 Lah. 439
(2) M. Saleem Ahmad Siddiqui v. Sabira Begum (2001 YLR 2329)
' He thereafter invited my attention to the same para-9, of the written statement filed by the petitioner, to which the learned counsel for the respondents had also relied upon, and stated that as the petitioner usually works not more than 4 to 5 months in a year and if his earning is taken at an average, the same would not exceed more than 3000 to 3500 US Dollars per month and thus the amount fixed by the learned Family Judge does not commensurate with the earning of the petitioner. He, therefore, prayed that the order for maintenance either be set aside or the amount fixed by the learned Judge be reduced to a reasonable extent.
7. I have heard both the learned counsel at considerable length and have perused the record, the law and the decisions relied upon.
8. Since a legal issue has been raised by the learned counsel for the respondents with regard to the maintainability of the petition, I would deem it expedient to decide the said issue first. It is a trite proposition of law that interlocutory orders, passed by the Court, are not appealable. The provisions of section 14 of the Act clearly reveals that no appeal or revision shall be made against an interim order passed by a Family Court. The purpose and object of order interlocutory order is to give a temporary relief to a party so that the financial constraint faced by the minors is redressed.
The Family Court in this regard has the jurisdiction, by looking at the financial condition of the father, to fix interim maintenance amount. While exercising this power the Court is only required to broadly look into the earning capacity of the father and A thereafter fix the same in a fair and reasonable manner. Since such type of order is only an interim arrangement, right of appeal has not been given in this regard subject to the condition that the said order should not be perverse or based upon the conjectures and surmises. It has been demonstrated that such power of fixing the maintenance has been applied by the trial Court in a rational manner and these findings normally are not to be interfered with. It is also a settled proposition of law that the question regarding fixing of the maintenance amount is a factual controversy which could not be resolved while exercising the constitutional jurisdiction by this Court as it is the, prerogative of the Family Judge, as enumerated above, to fix the reasonable amount of maintenance by looking at the financial position of the father.
9. The Hon'ble Supreme Court in the case of Shahjehan and others v. Syed Amjad Ali Hawaldar, reported as 2000 SCMR 88, has held that "to assess the evidence or to determine the amount of maintenance was the function of the Family Court, which has been vested with exclusive jurisdiction to decide such matter". In view of the explicit findings of the Hon'ble apex Court, it is held that to assess the maintenance amount is the exclusive jurisdiction of the Family Court, which appears to have been rightly exercised hence the present petition is not maintainable. B This petition, therefore, is dismissed being not maintainable. Since this petition has been decided on the legal objection raised in the present petition, no findings with regard to the merits or otherwise of the case are required. The pending applications are also disposed of.