This Constitutional petition has been filed against order dated 27.5.2019 passed under Section 17-A of the Family Courts Act, 1964 (the "Act") whereby a decree for maintenance allowance was issued in favour of the respondents and against the petitioner .
2. Facts in brief are that the marriage between the petitioner and Respondent No. 2 was solemnized on 04.12.2013 which did not work out; two children, Muhammad Atif and Muhammad Azan, were born out of the wedlock.
Respondent No. 3 filed a suit for recovery of maintenance allowance wherein maintenance allowance was claimed @ Rs. 15,000/- per month per person while suit for restitution of conjugal rights was instituted by the petitioner .
Wakalat Nama was filed on behalf of the petitioner/defendant on 08.12.2018 and on that date interim maintenance allowance pursuant to Section 17-A of the Act was fixed @ Rs. 2,000/- per month vide order dated 08.12.2018.
Pre-trial reconciliation proceedings were held pursuant to Section 10 and ultimately on 27.5.2019 it was concluded that reconciliation efforts between the parties had failed. As petitioner had badly defaulted in payment of interim maintenance allowance of the minors fixed vide order dated 08.12.2018 pursuant to Section 17-A of the Act decree was passed thereby allowing maintenance @ Rs. 4,000/- per person with 20% annual increase w.e.f institution of the suit till legal entitlement. The order dated 27.5.2019 is under challenge in this Constitutional petition.
3. Learned counsel for the petitioner has argued that the petitioner is now willing to deposit the interim maintenance allowance and that being a salaried person the maintenance allowance decreed is unreasonable and, therefore, the petitioner deserves an opportunity to defend the suit. Contrariwise learned counsel for the respondent has supported the order passed and argued that the maintenance allowance decreed is reasonable, fully commensurable with the needs of the minors and not beyond the means of the petitioner/defendant.
4. The documents placed on record have been perused with the assistance of the learned counsel. The parties, it appears entered into matrimony on 04.12.2013 but the marriage did not work out. Two sons sprung from the wedlock including Muhammad Atif and Muhammad Azan. Respondent No. 2 filed a suit for recovery of past and future maintenance allowance for herself and the two minors @ Rs. 15,000/- per head alongwith annual increase @ 50%. The petitioner filed a suit for restitution of conjugal rights. Vide order dated 08.12.2018, Judge Family Court Mian Channu directed the defendan t to pay maintenance allowance to the minors @ Rs. 2000/- per minor to be paid by 14th of each calendar month and the case was adjourned for payment of interim maintenance to 09.1.2019. On 09.1.2019 the case could not be taken up due to strike and was relisted for 10.1.2019 on which date order-sheet indicates that Rs. 4,000/- were paid by the petitioner to Respondent No. 2 as interim maintenance allowance of Respondent Nos.3 and 4, minors. Even on 10.1.2019 lawyers were on strike and proceedings were adjourned to 28.1.2019. Thereafter the case was adjourned for 16.2.2019 and then to 13.3.2019. In the order passed on 13.3.2019 it was observed that neither written statement had been filed nor payment of interim maintenance allowance was mad. The following note of warning was struck in the order dated 13.3.2019:- "...Today the case in hand was fixed for submission of written statement as well as written reply by defendant but the same has not been filed. The counsel for the defendant has requested for an adjournment to submit written statement as well as written reply . In the interest of justice, as per request of counsel for the defendant an adjournment is hereby granted with the note of warning that if on the date fixed for written statement as well as written reply not submitted then the right of defense of defendant will be struck off in accordance with law. File come up for submission of written statement as well as written reply from defendant for 29.3.2019 with absolutely last and final opportunity ."
The case was thereafter fixed on 29.3.2019 when written statement was filed and the case was set up for pre-trial reconciliation proceedings. However , interim maintenance as ordered by the Court on 08.12.2018 was still not paid.
The case was thereafter adjourned to 08.4.2019, 23.4.2019, 06.5.2019 and ultimately on 27.5.2019 when Respondent No. 2, present in Court for pre-trial reconciliation proceedings for which the case was fixed and for payment of interim maintenance, stated that earlier the case had been adjourned many times but the, petitioner/defendant was lingering on the proceedings and that the minors were not being paid any maintenance allowance. A request was made by the counsel for the plaintif f to initiate penal provision under Section 17-A of the Act. At this point the order records that the petitioner/defendant offered to pay Rs. 4,000/- as interim maintenance allowance but Respondent No. 2 refused to accept the same by stating that the whole outstanding interim maintenance allowance was liable to be paid. It is pertinent to note that the petitione r/defendant was also present in person as recorded in the attendance marked in the order-sheet of that day. The order dated 27.5.2019 recorded as follows: "... The counsel for defendant made request for an adjournment and stated before the Court that on the next adjourned date defendant will make all the outstanding payment of interim maintenance allowance to the plaintiffs positively . So kindly one last chance may be given him for the sake of justice. The Plaintiff No. 1 along with her counsel stoutly resist and stated before the Court that since last four months not a single penny has been paid to the plaintiffs by the defendant. Upon which the defendant in the interest of justice with the note of warning one single last final opportunity is hereby given to pay the outstanding amount during Court hours today in case of failure the payment of all the outstanding interim maintenance allowance to the plaintiffs the proceedings will be initiated against the defendant in accordance with law ...."
The case was kept in waiting and taken up again on the same day at 11:00 a.m when the order-sheet reflects as follows: "Connected with previous interim order sheet:-Present: Maher Zafar lqbal Dolu Advocate counsel for plaintif f whereas defendant side represented by Mian Muhammad Azam Advocate, Parties in person.
11:00 AM.
"File put after wait. Case called. Parties in person appeared along with their coun sels. At the very outset Plaintiff No. 1 stated before the Court that she is not ready to reconcile the matter with the defendant regarding maintenance allowance at any cost and she wants to initiate proceedings against the defendant under penal provision of Section 17-A of West Pakistan Muslim Family Courts Act, 1964 if the defendant failed to pay the outstanding amount of interim maintenance allowance today otherwise she wants to decision after recording of evidence. At this stage defendant shown his helplessness about agreeing with the Plaintiff No. 1, therefore in these circumstances as parties are not ready to reconcile the matter with each other so as pre-trial reconciliation proceedings ended in smoke. Perusal of record and conduct of the parties shows that the marriage between Plaintiff No. 1 and defendant still intact. In the interest of justice now to come up for payment of outstanding interim maintenance allowance and the file be put after wait ..."
The case was thereafter taken up at 2:00 p.m. when the impugned order was passe d wherein it was concluded that pre-trial reconciliation proceedings had failed and that since interim maintenance defaulted upon had not been paid till the closing hours of the Court, therefore, pursuant to Section 17-A of the Act the Court was left with no option but to invoke the penal provision. Decree was passed awarding the amount of Rs. 4,000/- per minor per month with annual increase @ 20% from the institution of the suit till legal entitlement and in case of Respondent No. 2 this was subject to performance of conjugal rights during subsistence of marriage.
5. It is observed that under Section 17-A the Family Court is under a duty to fix interim monthly maintenance for the wife or child on the first date of appearance of the defendant which in this case was 08.12.2018. Interim maintenance was duly fixed @ Rs. 2,000/- per minor while no interim maintenance was granted qua Respondent No. 2. As per statutory provision if the defendant fails to pay interim maintenance fixed by the 14th day of each calendar month, the defence of the defendant shall be struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case. While doing so Section 17-A(2) allows the Family Court to fix the amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances as well as prescribe the annual increase in the maintenance. It is further provided under Section 17(4) that for the purposes of fixing the maintenance the Family Court may summon relevant documentary evidence from any organization , body or authority to determine the estate and resources of the defendant.
6. In the instant case record indicates that not one but several opportunities were given to the petitioner/defendant to discharge the obligations of paying interim maintenance allowance to minors as fixed and directed vide order dated 08.12.2018. This included 16.2.2019, 13.3.2019, 08.4.2019, 23.4.2019, 06.5.2019 and finally the entire day from morning till closing hours of 27.5.2019. This appears to be already over-generous as opportunity to comply with a direction of the Court dated 08.12.2 018. Under the circumstances the Family Court; does not appear to have been left with any justification not to proceed to implement the mandate of Section 17-A of the Act in the face of manifest lack of cooperation and obedience to the judicial directive.
7. The quantum of maintenance allowance has been fixed Rs. 4,000/- per minor with 20% annual increase whereas as per salary certificate upon which reliance has been placed the petitioner at that point of time was drawing a salary of Rs. 18,485/-. While decreeing the claim of the respondents the Court has qualified the payment of maintenance allowance to Respondent No. 2 on her performance of conjugal duties, which as per learned counsel from both sides, is of no financial significance as there is no chance of resumption of conjugal relations. It is relevant to state that vide separate order dated 27.5.2019 petitioner's suit for restitution of conjugal rights was also dismissed.
8. The actual amount claimed was Rs. 15,000/- per head with 50% annual increase which has not been awarded. It appears that the, Court-has awarded reasonable amount keeping in view the inflationary trends for two minors to be able to live with dignity without the presence of their father or support from him. It is also noteworthy that under Section 14 of the Act no appeal lies from decree passed by Family Court for maintenance of Rs. 5,000/- or less per month. It is perhaps for this very reason that the petitioner appears to have directly invoked the. Constitutional jurisdiction of this Court. The policy of law under the circumstances does not lean in favour of interference unless a case is made out. Given the conduct of the petitioner/defendant and in light of the inflationary trends and keeping in view the rights of the children in view, it appears that the order passed is a reasonable and fair one and does not suffer from any material illegality or irregularity as to warrant interference in the discretionary jurisdiction of this Court. This petition, in result, being without merit is dismissed .