The petitioner Basharat Ali through this writ petition seeks setting aside of impugned judgment and decree dated 08.02.2014 passed by learned Judge Family Court, Multan decreeing the maintenance allowance in favour of minor respondents No.3 to 5 under section 17-A of West Pakistan Family Court Act 1964 also maintained in appeal vide judgment and decree dated 19.05.2015 passed by learned Additional District Judge, Multan.
2. Brief facts of the case are that mother of four minor respondents namely Mst. Abida Parveen filed family suit for recovery of maintenance allowance for herself and children and Haq ul Mehr against the petitioner before Judge Family Court, Multan and it was averred in the plaint that mother of the minors was married with the petitioner on 21.03.2001 and out of this wedlock four minor respondents were born. The petitioner deserted his wife alongwith kids after abusing her and failed to provide maintenance allowance to them. Hence the suit. The petitioner contested the suit and after filing of written statement the learned Judge Family Court vide order dated 27.09.2013 ordered the petitioner to pay interim maintenance allowance under section 17 A of West Pakistan Family court Act 1964 to his four children at the rate of Rs.1000/- per month each. The petitioner committed default, which being brought to the notice of learned Judge Family Court on 08.02.2014, the right of the petitioner to contest the suit for maintenance allowance was struck off and the suit to the extent of maintenance allowance was decreed in favour of 4 minor children/plaintif fs No.2 to 5 @ of Rs.5000/- per month for each child vide judgment and decree dated 08.02.2014. Appeal was also dismissed by learned Additional District Judge, Multan vide judgment and decree dated 19.05.2015, hence this writ petition.
3. Learned counsel for the petitioner has argued that the impugned judgments of two courts below are against law and facts because the petitioner after the passing of order dated 27.09.2013 by Judge Family Court, Multan for payment of interim maintenance allowance had been regularly paying such mainte nance allowance and before the trial court wrong impression was given from the respondent' s side that the petitioner had committed default of payment of interim maintenance allowance and the learned Judge Family Court without ascertaining the actual situation and financial position of the petitioner through the harsh impugned order awarded maintenance allowance to four children at excessive rate of Rs.5000/- per month for each child. Further argued that the petitioner is deserter of Pakistan Army owning no agricultural land and presently doing manual labour thus cannot afford to provide decreed maintenance allowance, hence, the impugned judgments require reversal or at least modification.
4. Learned counsel for the respondents on the other hand has vehemently opposed the writ petition by supporting the impugned judgments of the courts below .
5. Arguments heard. Record perused.
6. Before discussing the merits of this writ petition, it may be noted that the petitioner has filed this writ petition by impleading his three minor children as respondents No.3 to 5, whereas in actual he has four children. After the filing of suit for maintenance allowance by minor respondents through their real mother, the petitioner put up appearance before trial court and filed written statement and the learned trial court vide order dated 27.09.2013 fixed interim maintenance allowance under section 17-A of the West Pakistan Family Court Act, 1964 at the rate of Rs.1000/- per month for each child and as per judgment dated 08.02.2014 the petitioner committed default as an amount of Rs.11500/- was outstanding against him till that date. The petitioner has not annexed any relevant tangible proof with his writ petition to establish that he had been regularly paying interim maintenance allowance to his children during the period of default. His only anguish before this court is that learned trial court after striking off his defence decreed the suit at the claimed rate of Rs.5000/- per month for each child without looking at his financial position. For this purpose pleadings of the parties have been seen. In paragraph No.6 of the respondents' suit it was noted that petitioner had retired from Army Service and getting pension and more over he owned agricultural land and also maintaining cattle shed and selling milk and his monthly income was Rs.40,000/50,000/-. The petitioner in his written statement raised a preliminary objection No.5 in which he alleged that his wife alongwith minor respondents left his house in his absence and took away cash of Rs.80,000/- which he fetched after selling a buffalo a day ago and gold ornaments weighing 10 tolas and more than a dozen silk suits, which in other words would mean that the petitioner was wealthy and prosperous man and his financial position was not that, which he depicted in paragraph No.6 of the written statement and tried to exhibit before this court. It is unfortunate tendency seen in the family cases that when the courts ask fathers to maintain their children, they usually advance incapacity plea on various excuses. This case appears to be an example of such tendency which requires to be discouraged.
7. Inspite of above noted situation, instant case needs to be seen from another angle. Undisputedly due to default of payment of interim maintenance allowance learned trial court has struck off defence of the petitioner under article 17-A of the West Pakistan Family Court 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, 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 ."
As per settled judicial norms in such like disputes interim maintenance allowance is tentative amount, which is to be fixed after careful examination of available evidence as such amount can be either enhanced or reduced at the time of final adjudication of the matter. Interim maintenance allowance is subject to variation and adjustment at the time of final decision, which is given after recording evidence of the parties. It is also settled preposition of law that penal provision under section 17-A of Ibid Act is directory in nature and not mandatory.
For this purpose legislature has used word 'May' in the above provision for the court to consider many things, while striking off defence of the defendant and decreeing the suit. These many things obviously include a reasonable determination of claimed relief by a litigant. In the instant case learned Judge Family Court on the face of it failed to observe balance as initially an amount of Rs.1000/- per month for each child was fixed as interim maintenance allowance and then after striking off defence of the petitioner awarded full claimed amount Rs.5000/- per month to each child on a yardstick not clarified. Learned Judge Family Court was expected to look upon social status of the parties, expenses required, source of earning and income of the petitioner and his possessions.
8. In view of above discussed background maintenance allowance determined by the learned Judge Family Court for four minor respondents is found to be quite excessive, which requires to be modified reasonably . Keeping in view the perceived social and financial status of the parties maintenance allowance is reduced from Rs.5000/- to Rs.3500/- per month for each child for the period rightly determined by learned Judge Family Court till the time of entitlement of respondents with 10% annual increase applicable from date of decree passed by the learned trial court.
9. With the above clarification and modification instant writ petition is disposed of.