Through this writ petition , the petitioner has challenged the order and decree dated 08.11.2021 passed by the learned Judge Family Court, Bahawalpur under Section 17A of the Family Courts Act, 1964 whereby suit filed by respondent No.3 for the maintenance of respondent No.4 (minor son of the petitioner) has been partially decreed at the rate of Rs.15000/- per month with 10% annual increase payable with effect from institution of the suit i.e. 22.06.2019 till the age of majority, as well as the consolidated judgment and decree dated 18.02.2022 passed by the learned Additional District Judge, Bahawalpur in appeals preferred by the parties whereby the aforementioned order and decree passed by the learned trial court was upheld. ##TEd##
2. The sole ground pressed by the learned counsel for the petitioner in challenging the impugned decisions is that the learned courts below have not correctly interpreted Section 17A of the Family Courts Act, 1964 ("Act") inasmuch as the learned Family Court had no jurisdiction to pass a decree for the recovery of maintenance with effect from the date of institution of the suit. According to him, the authority possessed by the Family Court while invoking Section 17A(1) ibid is limited to pass a decree for the recovery of maintenance from the date of such decree.
3. Heard. Available record perused.
4. In Pakistan, the maintenance with regard to Muslim children is governed by the Injunctions of Islam and in other cases as per applicable personal law and the provisions of the Family Courts Act, 1964 in this regard essentially govern jurisdiction and procedure . The position has been well enunciated by the august Supreme Court of Pakistan in the case of Humayun Hassan v . Arslan Humayun and another in the following terms:
4. There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to section 369 of the Muhammadan Law by D.F. Mullah, maintenance means and includes food, raiment and1 2 lodging. However, it may be observed that from the very language of the above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well-being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and the capacity of the father to pay. Anyhow, the same jurist in section 370 of the book has elucidated the liability of the father to pay the maintenance to his children as follows:-- "370. Maintenance of children and grandchildren.---(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (section 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.
(2) If the father is poor, and in capable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances."
From the above it emerges, that subject to the conditionalities mentioned therein, a father in the normal course is bound to maintain his son(s) only till the time he attains the age of puberty, however there is an exception to this rule, and that is the disability of the son by infirmity or disease in which case the obligation of the father is extended for his adult son as well....
Again in interpreting the word "maintenance" some reasonable standard must be adopted. Whilst it is not confined merely to food, clothing and lodging, it cannot, by any stretch of imagination, be extended to incorporate within it education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus, it may not be sufficient to say that the child of a tradesman can maintain itself by working as coolly or by thieving. What is required is that that child must be maintained until it is in a position to earn its own livelihood, in an honest and decent manner in keeping with its family status (emphasis supplied)"
5. The jurisdiction and procedure of Family Courts in Pakistan is, inter alia, governed by Section 17A of the Family Courts Act, 1964. For proper analysis of the argument of learned counsel for the petitioner, it would be advantageous to reproduce the relevant provision i.e. Section 17A(1) of the Act as substituted by the Punjab Family Courts (Amendment) Act, 2015 (XI of 2015): S. 17A Suit for maintenance.--(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand 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.
On perusal of section 17A(1) of the Act, it is manifest that in a suit for maintenance, the Family Court is required to pass an order fixing interim monthly maintenance for wife or a child. The use of word "shall", on the face of it, indicates that the said requirement is imperative in character . Such an order is required to be passed on the date of the first appearance of the defendant. The purpose or object of such a mandatory requirement apparently is to ensure subsistence of wife or child till final determination of his or her entitlement qua the maintenance. The interim monthly maintenance so fixed by the Court is payable by fourteenth day of each month. A sanction has been created by the legislature in the form of striking off defence of the defendant follow ed by a decree to be passed to guard against failure of the defendant to pay interim monthly maintenance in compliance of the order of the Court.
The striking off of the defence in the case of default in the payment of interim maintenance is mandatory and no discretion in this regard is conferred upon the Court. Likewise, the striking off of the defence in such cases is automatic (i.e. not dependent upon any order of the Court in this regard), which is reflected from the use of legislative expression "the defence of the defendant shall stand struck off". The expression "defence struck off" means the defendant would not be entitled to rely on any defence set up by him in his Written Statement and the Court would not give any weight to the same, however , the Court has been required by the legislature to decree the suit for maintenance on the basis of averments in the plaint and other supporti ng documents on record of the case . Being a clause contemplating penal consequences for failure to pay the maintenance, it has to be strictly construed , therefore, the decree passed in terms of Section 17A(1) ibid is confined to the claim for maintenance and shall not cover any other claim of the plaintiff before the Family Court.
6. The primary question involved in this case is whether the decree passed by the Family Court for the recovery of maintenance under Section 17A(1) of the Act can only be for the period commencing the date of decree and not prior to that? To answer that question, it is imperative to refer to certain fundament al principles governing the grant of relief in suits. For it to succeed, the claim of a party against another must be based on a cause of action i.e. infringement of a right, title or interest recognized by law of the land. Generally speaking, in civil litigation, the entitlement to any relief covers the period commencing accrual of the cause of action . Such entitlement may, however , be controlled, curtailed or restricted by an appropriate legislature by express words or necessary implications. Additionally , in cases where claimants succeed in establishing a cause of action but without proof of the exact date of accrual thereof, relief is usually granted from the date of institution of the suit. If a cause of action is recurring or continuous one, the relief is granted for the future period covering entitlement of the claimant .
7. There is nothing in the language of Section 17A(1) of the Act that suggests expre ssly or by necessary implication that after striking off defence of a defendant the decree passed by the Family Court for the recovery of maintenance allowance shall be restricted or limited to the period commencing the date of decree and not before that. In the absence of any such restriction or limitation in Section 17A(1) ibid, a claimant is entitled to the maintenance when the respondent failed to maintain his wife or son even for the period prior to the date of institution of the suit. The respondent No.3 was, therefore, clearly entitled to the decree for recovery of the maintenance of respondent No.4 (minor son of the petitioner) from the date of institution of the suit.
8. Learned counsel for the petitioner has failed to point out any other illegality or jurisdictional error in the impugned judgments and decree warranting interference of this Court in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
9. For the foregoing reasons, the instant W rit Petition is dismissed in limine being devoid of any merit. With exceptions such Section 17A(3) which is a substantive in nature providing for ten percent automatic annual increase in the maintenance in cases where, while fixing maintenance, the Family Court does not prescribe annual increase. PLD 2013 SC 557 Supporting documents in this context has a reference to the documents filed under Section 7 of the Act. M/s Maple Leaf Cement Factory Ltd. v. The Collector of Central Excise & Sales Tax (Appeals), Lahore and 2 others ( 1993 MLD 1645 ). Muhammad Arif v . Uzma Afzal and others ( 2011 SCMR 374 ). Abdul Ghafoor v . Mahmood Ahmad alias Asghar and others ( 2003 SCMR 764 ) For example, the Limitation Act, 1908 controls, restricts or limits the grant of relief in various kinds of claims, Article 120 whereof restricts claims for the past maintenance to six years. Likewise, provisions of Rule 9 to Rule 18 of Order XX C.P.C. regulate the terms in which decrees can be passed in certa in types of claims triable under C.P.C. Such as till majority of a male child, marriage of female child or divorce of wife in cases of maintenance. Abdul Ghafoor v . Mahmood Ahmad alias Asghar and others ( 2003 SCMR 764 ) 3 4 5 6 7 8 9 1 2 3 4 5 6 7 8 9