QAISER RASHID KHAN, J. Through this petition, the petitioner-wife seeks the review of the judgment dated 13.11.2019 of this court, passed in W rit Petition No.2128-P of 2019.
2. Before we proceed, it would be worthwhile to reproduce herein below the relevant portion of the judgment dated 13.11.2019 of this Court, which runs as under:-
4. Whereas, the petitioner -lady states that she is ready to reside with the respondent-husband at his house in a separate room provided by him but simultaneously , states that the respondent is not performing his marital and parental obligations by not paying the maintenance allowance to the petitioner -lady and her minor daughter; that she is working in a private school as a Teacher and bears all the expenses of her daughter and that the minor daughter would join the nursery / kindergarten in March, 2020 and that the expenses incurred on her education are supposed to be borne by the respondent being the father of the minor , the respo ndent-husband present in court states that he would bear the genuine and legitimate demands of the petitioner as well as the minor daughter in his capacity as a husband and father .
5. Such being the case, we dispose of this petition in terms of directing the respondent-husband to take the petitioner -lady as well as the minor daughter to his home from the court and bear all their genuine expenses including school expenses of his minor daughter .
3. The learned counsel for the petitioner-wife contends that the respondent-hus band has backed out from the commitment, which he made before the court at the time of passing the consent judgment as he is reluctant to provide a separate room to the petitioner-wife and to bear her genuine expenses as well as those of the minor daughter and as such the impugned judgment is liable to be reviewed so that the main writ petition could be decided on its own merits.
4. As against that, the learned counsel for the respondent-husband controverts such allegations and states that it is the petitioner-wife, who is not ready to reside with him and is asking for a separate abode, which is beyond his financial status.
5. Arguments heard and the available record perused.
6. Keeping in view the controversy , involved in the matter , we would certainly like to hear the main writ petition on its own merits. Accordingly , we allow this review petition, set aside the impugned judgment dated 13.11.2019 of this court, restore the W rit Petition to its original number , which is taken up for hearing today .
Writ Petition No.2128-P/2019 QAISER RASHID KHAN, J. The petitioner-wife, through the instant writ petition, has called in question the judgment and order dated 17.12.2018 of the learned Judge, Family Court-III, Peshawar , whereby the interim maintenance of the minor-petitioner No.2 namely , Anabiya Tahir Khan Khattak has been determined as Rs.3,000/- per month while that of the petitioner-wife has been declined and has thus prayed for a reasonable maintenance amount for herself and her minor daughter .
2. As per averments in the petition, the petitioner wife besides filing a suit for the recovery of dower etc. also filed an application under section 17-A of the Family Courts Act, 1964 for the grant of interim maintenance against the respondent-husband, to which, reply was submitted by the latter , and after hearing the learned counsel for the parties, the learned Family Court has granted the interim maintenance of Rs.3,000/- per month to the minor- petitioner No.2 and declined the same to the petitioner No.1 through the impugned judgment and order prompting her to file the instant writ petition.
3. The gist of the arguments of the learned counsel for the petitioners is that in view of the explicit language of Section 17-A of the Act ibid, the petition er No.1 could not be debarred from receiving the interim maintenance allowance and as such, the court below while declining her the said relief has erred under the law, notwithstanding the fact that the interim maintenance granted to the minor is also insuf ficient to meet her daily needs.
4. The main thrust of the arguments of the learned counsel for the respondent-husband is that notwithstanding the very maintainability of the instant petition being filed against an interlocutory order , while determining the interim maintenance, the courts of law always keep in view the financial position of the husband, which fact has rightly been appreciated by the learned court below though the impugned judgment and order .
5. Arguments heard and the available record perused.
6. Where the marriage between the spouses subsists, where the minor-petitioner No.2 is admittedly born out of their wedlock and is presently studying in nursery and where the respondent-husband due to some family constraints is unable to take his wife and minor daughter to his home, then, of course, both, the wife and the minor daughter are entitled, under the law, for the interim maintenance till the disposal of the main suit, pending before the learned court below . Besides, the theme and scope behind the insertion of Section 17-A of the Act ibid. is on the one hand to safeguard the welfare of the wife and the minors and on the other hand to bound down the husband to perform his marital as well as parental obligations as far as the basic necessities of the former are concerned and in case of failure, penal consequence in the shape of striking off the defence of the husband has also been introduced therewith, which is mandatory in nature as the word "shall" has been used for the same.
7. In the present case, the learned Judge , Family Court has only determined a paltry sum of Rs.3,000/- per month as interim maintenance for the minor-petitioner No.2 and that too, in this age of dearness and highly inflationary trend, when such amount is not sufficient even to meet the food requirements of the minor . Similarly , the petitioner- wife is still in the wedlock of the respondent-husband while the latter is bound unde r the law to maintain her, which duty he appears to have practically abdicated as admittedly he has not provided any maintenance for his wife and minor daughter . Such being the case, we by modifying the impugned judgment / order dated 17.12.2018, enhance the interim maintenance of the minor-petitioner No.2 from Rs.3,000/- to Rs.8,000/- (Eight Thousand) per month and also determine the interim maintenance of the petitioner-wife as Rs.5,000/- (Five Thousand) per month, which shall be paid to them by the respondent till the disposal of the main suit. This writ petition is allowed in the above terms.
Needless to remark that any observations recorded in this judgment, being purely tentative in nature, shall have no bearing on the ultimate fate of the family suit, pending before the learned trial court, which shall, of course, be decided on its own merits after recording evidence.