' ABDUL RASOOL MEMON, J.---Through instant petition, the petitioner has assailed the order dated 26.11.2011 passed by the Vth Additional District Judge Karachi (South) in Family Appeal No.63/2009, Talha Asif Taufiq v. Mst. Shahla Khan and others whereby the order dated 04.7.2009 passed by the Vth Civil Judge/Family Judge Karachi (South) decreeing the Family Suit No.465/2007 filed by the respondents Nos.3 and 4 was maintained.
2. Briefly the facts of the case are that the petitioner and Mst. Shahla Khan, respondent No.3, were married on 02.7.2004 and out of wedlock she gave birth to respondent No.4 Asif Talha Taufiq on 23.6.2005 who is residing with her The relation between the spouses turned hostile with each other which subsequently resulted in dissolution of marriage by way of khula vide order dated 11.02.2009 passed by the Vth Civil and Family Judge, Karachi (South) in Family Suit No.465/2007. A suit was instituted for maintenance and recovery of dower amount, and dowry articles, by the respondent No.3 herself and on behalf of minor Asif Talha Taufiq for recovery of maintenance of the respondent No.3 at the rate of Rs.40,000/- per month from September, 2005 up to Iddat period and Rs.30,000/- for maintenance for the respondent No.4 from September, 2005 to on wards with increase of 15% amount per annum for future maintenance. It was contended in the plaint that the petitioner is very rich man and is running his business of marriage hall and earning more than Rs.1,50,000/- per month, Rs.100,000/- per month from his business of buying the houses, Rs.100,000/- per month from mobile shops besides his properties income, therefore, the petitioner is liable to pay dower amount as well as maintenance of the respondent No.3 and her son at the rates mentioned in the plaint.
3. The petitioner filed the written statement, denied the allegations of the respondent No.3 in the plaint and as regard the contention of financial position, he denied the quantum of claim of respondents towards maintenance only on the ground that she had refused to return home despite several attempts made by the petitioner, however, he has not specifically denied his source and amount of monthly income which amounts admission on the part of petitioner. The respondent No.2, learned Family Judge vide order dated 18.12.2007 passed interim order under section 17-A of Family Courts Act, 1964 whereby the interim maintenance of the minor respondent No.4 was fixed at the rate of Rs. 10,000/- per month for the welfare and education of the respondent No,4. Subsequently, the petitioner had moved an application before the respondent No.2 for modifying the interim order dated 18,12.2007 which was accordingly dismissed vide Order dated 19.12.2008, thereafter the petitioner assailed the said order before this Court through Constitutional Petition No.S=219/2008 which was also dismissed vide order dated 19.12,2008. As the petitioner failed to comply with the interim order dated 18.121008, the respondent No.2 Le, learned Family Court vide order dated 04.7.2009 struck off the defence of the petitioner and decreed the said family suit. Consequently a decree dated 07.7.2009 was prepared by the respondent No.2 wherein the maintenance of respondent No.3 was granted at the rate of Rs.40,000/- per month from September, 2005 till completion of Iddat period whereas the maintenance of the minor respondent was allowed at the rate of Rs.30,000/- per month with increase of 15% per annum.
4. The order dated 04.7.2009 was assailed through Family Appeal No.63/2009 by the petitioner which was dismissed vide order dated 26.11.2014, hence the petitioner being aggrieved and dissatisfied from the order dated 04.7.2009 of Family Court in Family Suit and 26.11.2014 of Appellate Court in Family Appeal has preferred the instant constitutional petition.
5. Learned counsel for the petitioner has contended that the petitioner has filed the application for modification of the order dated 18.12.2007 passed on the application under section 17-A of the Family Courts Act (Amended) Ordinance, 2002 (the Ordinance, 2002) which was dismissed by the respondent No.2 and his petition before this court was also dismissed for non-prosecution; that the order passed on application under section 17-A is not based on the evidence or conducting any inquiry and is on presumption, assumption, surmises and conjectures and not as per law; that the defence of the petitioner has been struck of without affording any opportunity to the petitioner for defending him; that the petitioner's financial position and income has not been taken into consideration while fixing of the amount of maintenance. Lastly it is contended that the impugned orders have been passed without jurisdiction and without lawful authority. In support of his contention, he has placed reliance on the case of 2011 CLC 820 and PLD 2012 Peshawar 97.
5. Learned counsel for the respondent Nos. 3 and 4 has contended that provisions of section 17-A of Act of 1964 specifically provides that the Family Court has envisaged with the powers to pass an interim order for grant of maintenance in a pending suit instituted before it and in case the order so passed for interim maintenance is not complied with, the defence of the defendant of the suit is liable to be struck of and the decree is to be passed as prayed. Learned counsel for the respondents Nos.3 and 4 has further argued that provisions of section 17-A are mandatory in nature and the suit has rightly been decreed as prayed for on account of failure by the petitioner to pay the interim maintenance allowance. He further submits that since the date of order i.e. 18.12.2008, not a single penny has been paid by the petitioner to his minor son and his wife and the conduct of the petitioner in this regard may be looked into and therefore, the petitioner is not entitled to equitable relief in constitutional jurisdiction. The provisions of section 17-B of the Ordinance, 2002 are not applicable in the circumstances of this case. In support of his contention, he has placed reliance on the cases of 2012 SCMR 215 (Ghazanfar Ali alias Pappu and another v.
The State), 2007 SCMR 287 (Muhammad Rafiq v. Nazir Ahmed and others), 2014 MLD 297 (Muhammad Ashraf v. Philip Javed and 2 others), 2010 SCMR 1377 (Syed Kamal Shah v.
Government of N.- W.F.P.), PLD 2009 SC 28 (Muhammad Maqsood Sabir Ansari v. District Returning Officer Kasur and others), 2010 SCMR 73 (Tasneem Jalal and others v. Deputy Director ANF and others), 2007 CLC 351 (Muhammad Hanif v. KBCA), 2002 CLD 1431 (NBP v. EFFEF Industries and others), 2002 SCMR 1305 (Nur-ul-Haq v. Ibrahim Khalil), (Amin Ali and another v. The State) 2011 SCMR 323 and (Atta Muhammad v. Mst. Shahnaz Khatoon and 6 others) 2006 YLR 1708.
6. 1 have considered the arguments of learned counsel for the parties and case law relied by them.
It is the matter of record that proceedings in the instant suit instituted by the respondent No.3 for grant of maintenance and recovery of dower amount were contested by the petitioner by filing the written statement and during the pendency of the suit on 18.12.2007 order was passed by the Family Court directing the petitioner for payment of interim maintenance allowance for the minor son (respondent No.4) at the rate of Rs.10,000/- per month with further increase of 15% per annum.
The date of birth of the minor son is 23.6.2005 and at the time of passing of the interim order, he was aged about 21/2 years which fact is not denied. It is also an admitted position an record that the present petitioner did not comply with the interim order passed by the Family Judge/Court of Family, therefore, vide order dated 04.7.2009, his right to defend the suit was struck of and the suit was decreed as prayed along with 15% per annum increase for the minor. It will be expedient to reproduce section 17-A of the Act, 1964 which reads as under:-- "17-A. Interim order for maintenance.---At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, where under 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".
7. The Family Court under section 17-A of Family Courts Act, 1964, is empowered for granting of interim maintenance and in case of non-compliance of the interim order, the Court may struck off the defence of the defendant and also may pass the final decree.
8. It may also be appreciated that from the bare reading of section 17-A of the Act, 1964, it is Manifestly clear that the right of further adjudication of the defendant is contingent right subject to fulfillment of contingency of section 17-A of the Act, in other words if the defendant desires to contest the family suit, he is required to comply with the interim order passed by the Family Court pursuant to section 17-A of the Family Courts Act. The respondent No.3 in para-9 of the plaint has specifically pleaded that all the expenses of the minor are being borne by her parents and brother and same shall be calculated at Rs.40,000/- per month for pampers, food, toiletries, toys and other miscellaneous expenses etc. Besides A'aya's expenses and in Para-25 of the plaint has clearly mentioned that the petitioner is running the business of marriage hall and catering and earning more than Rs.150,000/- per month and so also business of buying house Rs.100,000/- per month and from his mobile shop Rs.100,000/-. The petitioner in his written statement has not denied the quantum of income being earned by him. It is settled law that the claim or allegation of fact in the plaint, if not denied specifically or by necessary implication in written statement, shall be taken to be admitted by the defendant. Under Order VIII, Rule 5, C.P.C., it is required that the defendant must deal specifically with each allegation of the fact of which he does not admit the truth, if the defendant failed to do so, it can legitimately be said that fact pleaded in plaint had been admitted by the defendant. In view of the above proposition of law, the averments made in the plaint by the respondent No. 3 in respect of the income of the petitioner has not been specifically denied by necessary implication, therefore, it deemed to have been admitted. However, under the Islamic law, the father is bound to maintain his child regardless to his own financial position. In this context reliance could be made to a case of Bashir Ahmed v. Mst. Abide (1982 CLC 1295).
9. From the above discussion, it appears that the Family Court can pass an order for payment of interim maintenance during the pendency of the suit and failure to comply with such order, can take necessary steps for penal action of closing the right of defence. The conduct of the petitioner is very much relevant in this case that since 18.12.2007 when the interim order was passed, not a single penny was deposited by him in compliance of the orders of the family Court till 04.7.2009 when his right of defence was closed.
10. No exceptional circumstances have been pointed out for Interference with the impugned order and decree. On the contrary the conduct of the petitioner on the very face of it appears that he has come to the Court with unclean hands as since 18.12.2007 when interim order for payment of maintenance for minor was passed, he has failed to comply with the same and has been moving application for modification-of the said order and then also he filed the constitutional petition but did not pursue the same which was too dismissed, which on the face of it shows that he has tried not to comply with the interim order till today and in such circumstances the Constitutional Jurisdiction of the discretionary character could not be invoked as a routine or be used as an alternate of appeal or revision in view of the case law relied upon by the learned counsel for the respondent No.3, while the case law relied by the learned counsel for the petitioner has no relevant application to the facts and circumstances of this case.
11. In view of above circumstances, the petition merits no consideration and stands dismissed accordingly.