THERE IS A SCHOLARL Y CONSENSUS ON A FATHER'S OBLIGA TION TO BEAR HIS CHILDREN'S EXPENSES: "AND CLOTHING AND MAINTENANC E MUST BE BORNE BY THE FATHER IN A FAIR MANNER." [AL- BAQARAH, 233] MUHAMMAD SHAN GUL, J. The present matter involves a father who happens to be a well-qualified, well reputed and equally well placed neurosurgeon, who wants to avoid and wriggle out of supporting and providing maintenance for his 5/2 years old daughter who suffers from the AUTISM SPECTRUM DISORDER . It seems that the good doctor is not acquainted with the hackneyed clich of 'no other love in the world being like the love of a father for his girl.' This, or the petitioner misunderstands the meaning of the paternal bond between a father and a daughter . Writing this judgment has indeed caused great pain and anguish!
2. The petitioner has laid a challenge to an order dated 21.6.2021 passed by a learned Judge Family Court whereby interim maintenance allowance in respect of the petitioner 's 5/2 years old autistic daughter has been raised from Rs.20,000/- to Rs.50,000/- per month. The maintenance so fixed has been ordered in respect of a differently abled child who has special needs, over and above those, generally associated with a typical 5/2 years old child.
3. The petitioner claims to be a neurosurgeon who has served at eminent positions in Pakistan, the Kingdom of Saudi Arabia and the United Kingdom. That neurosurgeons are paid well may be an understatement ! He has a parental (read ancestral) house in Multan. That he was lucratively employed in the Kingdom of Saudi Arabia and in his own words this job served him well. 'Lucrative' according to the ordinary dictionary meaning means 'producing a great deal of profit. ' This is of the essence and has a bearing on the final shape that this decision takes.1 1 1
4. The petitioner states that he married respondent No.1 in 2008 and out of the wedlock a daughter was born in 2016. The petitioner admits that his wife's father was killed and that she provides for her mother as well. In paragraph No.6 of the petition the petitioner has admitted that he worked till 2018 in the Kingdom of Saudi Arabia from where he moved to Scotland in the United Kingdom and remained employed in a hospital as a neurosurgeon. That he returned to Pakistan in December, 2020 whereafter he learnt that respondent No.1 i.e. his wife had obtained an ex parte decree of khula against him. That he was shocked and moved an application for setting aside the ex parte decree on 29.3.2021. It may be mentioned here that the petitioner filed the application in question after four months of having returned to Pakistan. He also filed an application for suspension of the decree which was allowed subject to costs. That he submitted a written statement and pre-trial reconciliation proceedings were fixed for 15.6.2021 and since his wife did not want to reconcile at all, while he did, the efforts remained futile. The reconciliation proceedings failed and on 21.6.2021 the impugned order was passed fixing monthly maintenance of the petitioners' autistic 5/2 years old daughter @ Rs.50,000/- per month. That, thereafter , sensing collusion, he moved a transfer application for having the matter transferred to another family court and which application was allowed since the counsel for the respondent acquiesced and did not object to the transfer application.
5. When this petition came up for hearing before this Court, the petitioner was specifically asked to appear at the rostrum. He was asked whether while being a specialist himself he understood that his daughter suffers from the Autistic Spectrum Disorder and also that it had been established by empirical evidence that additional expenses were required to cater for the different and special needs of an autistic child, over and above those required generally to raise a 5 years old girl? He replied in the affirmative immediately but then said that he had been dealt a marked hand by the mother of his daugh ter who had deprived him of most of his wealth. He seemed bitter and disappointed. He was asked if he would want to reconsider prosecuting the petition under consideration and he took time from the Court to ponder over such a course. The counsel for the petitioner as also the petitioner returned after some time and stated in unison that the petitioner had no intention of not prosecuting this petition.
6. The counsel for the petitioner submits that the order under challenge contains no reasons whatsoever; that the order is disproportionate inasmuch as it casts an exorbitant yet unexpected burden on the petitioner; that the order under challenge is exploitative in view of the medical emergency imposed in the country; that the order was passed in great haste and that such an order ought to have been passed only after recor ding of evidence and by way of ultimate and final decision, if at all.
7. The counsel for the petitioner was confronted immediately with the following facts and which are as follows:- a). The established fact of the petitioners' daughter suffering from Autistic Spectrum Disorder had been acknowledged and admitted conspicuously in this Court as well by the petitioner; and b). That the petitioner had himself admitted in ground-D at Page-10 of the constitutional petition under consideration that at least Rs.35,000/- were required for the maintenance of his autistic daughter .
And that, therefore, there was no need to record any evidence.
8. The counsel for the petitioner , however , contends that the petitioner 's current financial position does not allow him to shower such extravagance (sic!). The counsel for the petitioner then stated that since the order is bad in law, the present constitutional petition was maintainable even though the order under challenge was an interim order passed under the regime of the Family Courts Act, 1964.
9. Heard. Record perused.
10. Before dealing with the submission s of the petitioner and prior to considering the merits of the case, a preliminary yet pivotal question pertaining to jurisdiction demands attention. The Hon'ble Supreme Court of Pakistan in "Government of Sindh through Secretary Education and Literacy Department and others v.
Nizakat Ali and others " (2011 SCMR 592) and "Shajar Islam v. Muhammad Siddique and 2 others" (PLD 2007 SC 45) has categorically and unequivocally recognized this rule, "jurisdiction has to be determined at the outset to the exclusion of all other issues. "
11. It may also be recounted here that judicial review is the means to ensure legitimacy and legality in administrative and legislative action. It is a process whereby the intent of the parliament as contained in a1 statute is harnessed, secured and protected.
12. The Family Court Act, 1964 is a special statute and has been enacted with a specific purpose to ensure expeditious settlement and disposal of disputes relating to marriage and family affairs and matters connected therewith. It, inter alia, has conferred upon the Family Court, powers under section 17-A of the Act, to grant interim maintenance to the concerned parties during the pendency of proceedings. The purpose behind this provision is to ensure that during pendency of these proceedings, affected minors are not faced with financial constraints.
13. Does the Family Court have un-fettered and un-bridled powers to fix interim maintenance at its discretion? The answer , of course, is no, the concept of subjective discretion having been judicially buried! The Court may, therefore, broadly look into the social status of the parties, the earning of the defendant, his capacity to pay, the requirements of the minor and on this touchstone fix interim maintenance. It may also be noted that no right of appeal etc. has been provided against such a determination, because the order is tentative and interim in nature.
The Court has uninhibited powers to enhance or decrease the quantum of maintenance eventually after appraising, deciphering and examining the evidence produced during trial. Therefore, findings qua interim maintenance normally cannot be interfered with, if the same are fixed upon the parameters stated above.
14. The present petition may also not be competent because the main suit is still pending and the Family Court is yet to render its final verdict. The order fixing interim maintenance has not attained the status of a final order . The legislature has deliberately kept such an order outside the ambit of appeal (see: Section 14(3) of the Family Courts Act, 1964). In these circumstances, when the Legislature has specifically prohibited the filing of an appeal against an interim order , if the present constitutional petition is perpetuated, it would tantamount to defeating and diverting the intent of the Legislature. In "Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others " (1996 SCMR 1165), the Hon'ble Supreme Court of Pakistan was pleased to hold as under:- "statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in constitutional jurisdiction. Party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such order ."
This view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of "Mohtarma Benazir Bhutto, MNA and Leader of the Opposition, Bilawal House, Karachi v. The State " (1999 SCMR 1447 ), wherein, at page 1452, it was held as under:-- "It is well settled that orders at the interlocutory stages should not be brought to the higher Courts to obtain fragmentary decision, as it tends to harm the advancement of fair play and justice, curtailing remedies available under the law, even reducing the right of appeal. Refer the case of "Mushtaq Hussain Bukhari v. The State"
1991 SCMR 2136, Muhammad Afzal Zullah, the then Hon'ble Chief Justice, at page 168 of the report observed as follows:-- "It is a wrong or at least misstatement in our state of law, practice, procedures and proceedings in the Courts of law, that wrong orders should be corrected at the time they are passed because it would take less time for the case to conclude. This might have been true half a century to quarter century ago. Thereafter, the challenge to the interlocutory orders has brought about a deluge in the administration of criminal justice. Cases started piling up with the result that the concept of speedy justice came to a grinding halt and powers that may be, started thinking of curtailing remedies even reducing the right of appeals."
15. In "Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Laho re and another " (1976 SCMR 450 ) it has been held as follows: "As the said Ordinance has taken away the right of the petitioner , learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendency of the proceedings in the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express provisions of the statutory law. That was also the view taken by this Court in Sayyed Muhammad Ali Shah Bokhari v. The Chief Administrator of Auqaf, Punjab, Lahore and others (1972 SCMR 297) and we respectfully agree with it."
16. In "Bilal Akbar Bhatti v. Election Tribunal, Multan and 15 others " (PLD 2015 Lahore 272), a Full Bench of this Court while dealing with a similar proposition of law held as follows:- "12. .......... No right of appeal or revision against interlocutory orders has been provided in ROP A for the reason that the people should wait for the final decision of Election Tribunal and final decis ion be assailed, if so required by any of the party after conclusion of the trial before the Hon'ble Supreme Court. Mere wrong decision does not render the decision without jurisdiction. When Legislature has entrusted the Tribunal with jurisdiction to finally determine the dispute, this jurisdiction also includes to determine some preliminary issues and even if the Tribunal makes a wrong decision either of facts or law at an intermediate stage, it cannot be corrected in writ jurisdiction under Article 199 of the Constitution by exercising the power of appellate authority . The plea canvassed by the learned counsel for the petitioners regard ing maintainability of this petition against interlocutory/interim order of the Tribunal cannot be acceded to for the simple reason that by doing this we would deprive the person of his substantive right of appeal provided under section 67(3) of ROP A to the Hon'ble Supreme Court of Pakistan. In fact by exercising jurisdiction under Article 199."
17. The principle of judicial review embodied in the remedy afforded by Article 199 of the Constitution certainly cannot be used to negate, erase or offend the manifest intent of the law-maker or as the Hon'ble Apex Court has stated in "President, All Pakistan Women Association, Peshawar Cantt. V. Muhamma d Akbar Awan and others " (2020 SCMR 260 ) at Page 263: "It is settled law that when the Statute does not provide the right of appeal against certain orders, the same cannot be challenged by invoking the constitutional jurisdiction of the High Court in order to gain a similar objective. Where a Statute has expressly barred a remedy which is not available to a party under the Statute, it cannot be sought indirectly by resort to the constitutional jurisdiction of the High Court.
8. In the present case, the intent of the Legislature to keep out interlocutory/interim orders from the scope of appeal is not difficult to understand. It is meant to curtail delays, piecemeal and fractured litigation at various fora at the same time. In our view, such orders cannot be challenged under the guise of invoking the constitutional jurisdiction of the High Court because the same would tantamount to negating the provisions of the Statute itself and rendering the bar imposed by the Legislature in the interest of expeditious disposal of rent matters totally redundant. The High Courts exercising constitutional jurisdiction must be fully cognizant and conscious of this Rule and strictly adhere to the same in the interest of advancing the policy of law and delivering expeditious justice in accordance with the law and the Constitution. Even otherwise, constitutional jurisdiction is equitable and discretionary in nature and should not be exercise to defeat or bypass the purpose of a validly enacted statutory provision."
18. By entertaining this petition, this Court shall be doing exactly what the Hon'ble Supreme Court of Pakistan has advised against! At the same time it may also be mentioned that had the order been absolutely irrational, overtly perverse, grossly disproportionate, withou t jurisdiction or even in excess thereof, or coram non judice , perhaps the statutory ouster/bar may have been, arguably , crossed (see "Mrs. Shahida Zahir and 4 others v. President of Pakistan and others " (PLD 1996 SC 632) and "Arshad Mehmood v. Commissioner/Delimitation Authority , Gujranwala and others " (PLD 2014 Lahore 221), and of course, Anisminic Ltd. v. Foreign Compensation Commission [1968] APP.L.R. 12/17 . This, however , prima face, is not the case in the present matter and we may move over to consider the order under challenge as also the merits of the matter .
IMPUGNED ORDER DA TED 21.06.2021 P ASSED BY THE F AMIL Y JUDGE "Statements of plaintiff been recorded above. As parties not willing to reconcile, in these circumstances, pre-trial reconciliation proceedings are hereby declared as failed. Eventually, suit of the plaintiff for dissolution of marriage is decreed u/s 10(5) Family Court Act, 1964. Plaintiff is directed to return 25% amount of admitted received prompt dower amount. Copy of this order be sent to union council concerned for its implementation and notice of this order to the defendant in accordance with law.
To the extent of remaining dower amount, defendant pleaded and deposed that he had paid entire dower , so, said claim decided after recording evidence.
Record indicates that minor is specia l kid, documents regarding his month ly expenses available on file, tentatively , it seems that defendant is man of means, therefore, keeping in view the essential needs and being special kid, Rs.50,000/- fixed as interim maintenance allowance of minor .
Defendant requested for meeting of minor , plaintiff party raised no objection upon meeting of minor with defendant, therefore, defendant entitled for visitation/meeting with minor kid on last Saturday of every month, in court premises."
19. The reason for having passed such an order is manifestly reflected in the impugned order itself. This being that the child whose maintenance is in issue is an autistic child whose needs and requirements are indeed over and above and in excess of what are generally associated with typical 5 years old children and which is and which should be reason enough for a father who is a specialist neurosurgeon by profession and who fully understands the needs, requirements, special care and treatment required by a differently abled child. Furthermore, considering the social status, achievements, laurels, et al., of the petitioner and also keeping in view his financial status about which he himself speaks in the constitutional petition under consideration, the amount fixed by way of the order under challenge is not hair-raising or disproportionate. Massive inflation, routine price hike and a general feeling of economic insecurity being the order of the day, the impugned order , especially in the case of an autistic child, cannot be said to be unreasonable or even harsh. The amount fixed has a rational nexus with the requirements and needs of a differently abled child and, therefore, is quite proportionate.
20. Furthermore, it is not as if the order has been passed by a forum that is not recognized by law or has no jurisdiction. Equally , the order under challenge was passed in the presence of the petitioner who was heard in the matter by the Family Judge. In this view of the matter , the ratio of the seminal case of "Mian Jamal Shah " (PLD 1966 SC 1 ) is not attracted either .
21. In "Abrar Hussain v . Mehwish Rana and 3 others " (PLD 2012 Lahore 420 ) it has been held as follows:- "The impugned order can neither be termed as void ab initio nor without jurisdictio n. Similarly , the impugned order has not attained the status of a final order . The impugned order was passed by the learned Judge Family Court, Lahore, who has the jurisdiction to pass the said order under section 17-A of the West Pakistan Family Courts, Act, 1964. The petitioner has not challenged the jurisdiction of the learned Judge Family Court, Lahore in his written statement filed before the learned trial court. He was not condemned unheard and was provided an opportunity of hearing before passing the impugned order ."
AUTISM
22. Autism Spectrum Disorders are a group of developmental disabilities characterized by pervasive deficits in socialization and communication, as well as unusual behaviors or interests. Children with autism can present a broad range of clinical features includin g qualitative, developmental and neurological abnormalities, as well as sensory symptoms, epilepsy , cognitive dysfunction, severe impairments in adaptive behavior , and aberrant regulation of emotion. (Knapp M., Romeo R, and Beecham J: Economic Cost of Autism in the U.K. Autism 2009).
23. Autistic children may act in a different way than other children. They may find it hard to communicate and interact with other people. They may also find it difficult to understand how other people think or speak. According to the yearly report of the National Health Service, U.K., autistic children find things like bright light and loud noises overwhelming and stressful. They get anxious or upset about unfamiliar situations and social events. They take longer to understand information and do or think the same things over and over again. However , being autistic does not mean that an autistic person is ill or has a disease. It means that his brain works in a different way from other children. Autistic people often have other conditions like dyslexia, depression or anxiety even epilepsy .
24. Autism is a lifelong state. It is not an illness but a neurodiversity; a different way of being. Autistic individuals have lifelong needs, more so at the tender age of 5. Therapy, schooling, therapist and distant learning support assistant cost, special care, physical activities, special equipment for sensory needs and co- morbid conditions warranting doctor visits are just a few costs that an autistic child entails. We must not forget that an autistic child is not just autistic all, but has needs of a regular child as well. Furthermore, needs that are luxury to typical kids are basically necessity for an autistic child. For example, swimming, skating etc. are basic skills to prevent drowning and develop coordination respectively . Specialist coaches are indeed expensive.
25. The economic burden and the impacts on health and social integration associated with Autism Spectrum Disorder are considerable. According to a UK National Health Services ' Survey , the costs of supporting children with Autism Spectrum Disorder were estimated as 2.7 billion per year. The lifetime cost was estimated as 1.23 million for individuals with Autism Spectru m Disorder and intellectual disability and 0.80 million for individuals with Autism Spectrum Disorder but without intellectual disability .
26. The counsel for the petitioner laid great emphasis on the fact that the mother of the child is a well-placed government doctor with a comfortable source of income and that this should have been a consideration for the Family Judge while passing the order under challenge. This argument is indeed nave and fails to take into account the fact that there is a huge gender gap in comparing a man who earns and without custody as opposed to a woman with an autistic child. Time is also money. The mother will very likely have to take leaves from work to take the child to society visits and school meetings. There is also a lot of work regarding therapy and she will have to dedicate multiple hours to do therapy exercises with the child. The mother often needs house help at home. The mother may have to take off days in case the child is having a meltdown or any other issue crops up. The mother might hire an assistant for work just to focus on her child or even hire trained house help to take care of her child so that she can focus on work. It costs extra money just to save time and vice versa. It may be added here that most workplaces are not accommodating or tolerant enough and there will most likely be pay cuts and less chances for raise. The mother will not be able to put in extra hours and she certainly will not have time for securing multiple streams of income. Her career progression will be impacted and with the child getting older more expenses will be required and the mother will most likely be in a deeply difficult situation. The argument of the counsel for the petitioner , therefore, cannot make much headway .
27. According to Medical Journal, Jama Pediatrics , the total lifetime cost of supporting an autistic person is $1.4 million in the U.S. Such costs typically include an ongoing mix of special attention programmes, medical care and lost wages. After all, parents of autistic children reduce their work hours to help their child. In this view of the matter , it is clear that raising a child with an Autism Spectrum Disorder is a sobering financial reality .
28. Seen from both angles, legal and equitable, the present petition betrays a rare kind of insensitivity and a disregard for law. Additionally, the dictates of the welfare of the autistic minor demand rejection of this petition.
Most importantly, the fact that precedent cases also disallow encouraging such petitions aimed at interim orders is a crucial factor in not countenancing the present petition. This petition must fail and the certiorari prayed for refused.
29. Dismissed.