MUHAMMAD SHAN GUL, J.---Through this judgment the titled constitutional petition is sought to be decided.
2. Facts in brief are that respondent No.2/Ambreen Aslam, tied the matrimonial knot with the petitioner, Muhammad Imran, on 08.9.2017 and the marriage resulted in the birth of minor Muhammad Umais who at present resides with respondent No.2/Ambreen Aslam. Things could not work out between the husband and wife and allegedly no matrimonial harmony existed between the couple and which resulted in the separation of the couple with respondent No.2 coming to the house of her parents along with her minor son to reside there. According to respondent No.2, the petitioner was asked, time and again, to provide the necessary sustenance allowance but he persisted in his denial and this is what compelled respondent No.2/Ambreen Aslam to file a suit seeking maintenance from the petitioner.
3. A suit was filed. Issues were framed. The Judge Family Court thereafter awarded the following relief to respondent No.2:- "i) Minor plaintiff No.2 is held entitled to recover maintenance allowance Rs.4000/- (four thousand) per month from the date of institution of this suit till his future period/legal entitlement along with 10% annual increase. Interim maintenance (if any) paid during the pendency of the suit shall be adjusted. The increment on basic amount will start after every calendar year. ii). Plaintiff No.1 is held entitled to recover breast feedings maintenance allowance @ Rs.5000/- (five thousand) per month from the birth of minor for a period of 2 years. iii). Plaintiff No.1 is held entitled to recover Rs.30000/- (thirty thousand) as delivery expenses. iv). Remaining claim of the petitioner (if any) is refused."
4. Aggrieved and dissatisfied, the petitioner has approached this Court by means of the present petition. Learned counsel for the petitioner, at the outset, submits that the petition would be pressed only to the extent of award of breast feeding maintenance allowance and that the petitioner did not want to pursue the petition with respect to the award of general maintenance allowance amounting to Rs.4000/- per month or for that matter with respect to imposition of Rs.30,000/- as delivery expenses. It is, therefore, clear that the present petition is only being entertained with respect to the grant of breast feeding maintenance allowance amounting to Rs.5000/- per month.
5. Learned counsel for the petitioner submits that the petitioner takes exception to the fact that the judgment under challenge is irreconcilable because while deciding issue No.1 "Whether the plaintiffs are entitled to recover maintenance allowance from the defendant, if so, at what rate and for what period?OPP" the Judge Family Court discarded the plea of desertion of respondent No.2 by the petitioner as having not been proved but the same Judge Family Court has been swayed by the same consideration while dealing with another issue (2-A): "Whether the plaintiff is entitled to recover maintenance allowance of breast feeding @ Rs.15000/- per month from the defendant ?OPD" and by considering the plea as nearly correct. Adds further that no reasons have been cited in the judgment for the grant of breast feeding maintenance allowance and that the trial court ought to have employed the provisions of Section 17-A(4) of the Family Courts Act, 1964 for the purpose of gauging and determining the financial health and position of the petitioner before passing the judgment under challenge.
6. Heard. Record perused.
7. Section 17-A Family Courts Act, 1964 was amended and substituted by way of the Punjab Family Courts (Amendment) Act, 2015 (Act XI of 2015) w.e.f. 18.3.2015 and Section 17-A in its present form reads as under:- "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.
(2) In a decree for maintenance, the Family Court may:
(a) fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances; and
(b) prescribe the annual increase in the maintenance.
(3) If the Family Court does not prescribe the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year.
(4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant."
8. What 'is evident from a perusal of this relatively recently added provision of law is clearly discernible from a perusal of subsection (4) of this Section and which clearly allows the trial court the facility of summoning relevant documentary evidence to determine the estate and resources of a husband who is to be saddled with the responsibility of providing maintenance allowance.
9. A perusal of the judgment under challenge indicates manifestly that no such enquiry as is envisaged in Section 17-A(4) was even remotely undertaken by the Judge Family Court and in fact no effort for initiating any such enquiry or fact finding was even initiated. The learned Judge Family Court ought to have probed and examined the financial status, worth of estate of and availability of resources with the petitioner before deciding the question of breast feeding maintenance. Learned Judge Family Court ought to have appreciated the fact that such precedent enquiry was facilitated by the amended provision itself. The learned Judge Family Court ought to have also appreciated the intent of the legislature in bringing about an amendment in Section 17-A.
10. This amendment was brought about to arrest the near unbridled discretion obtaining with a Judge Family Court in the matter of fixation of quantum of maintenance. This safety valve i.e. Section 17-A(4) was specifically added for the purpose of ensuring that there is no arbitrary, whimsical or to use legalese, subjective exercise of discretion what with the Qanun-e-Shahadat Order, 1984 and the, Code of Civil Procedure, being explicitly inapplicable to proceedings before a Judge Family Court. To structure such discretion by means of provision of statute based facilitation, a Judge Family Court was extended the space and potential of trying to gauge by means of various indicators (pay, salary, possessions, ownership, estate, tax statement, etc.) nee all relevant considerations (Aka Lord Greene in the case of Wednesbury Corporation) the amount of maintenance to be imposed upon a defendant.
11. In the matter before this Court, the learned Judge Family Court has rather attempted a complete nose-dive and done exactly the reverse. Without making any attempt at employing Section 17-A(4), the learned Judge Family Court has simply proceeded on a frolic of his own and without any enquiry or investigative exercise imposed the additional burden, so to speak, of breast feeding maintenance allowance on the petitioner. It is not as if the learned Judge Family Court has passed an interim maintenance allowance order which shall merge in final judgment, rather a final judgment has been delivered without undertaking any such enquiry as is envisaged in Section 17-A(4). This is fatal, crucial and of the essence when viewed in the context of what follows in the narrative ahead and quite erroneous and bad in law in view of the judgments of the Superior Judiciary.
12. While the learned Judge Family Court has discarded the plea of desertion taken up by respondent No.2, Ambreen Aslam, while deciding the question of general maintenance (paragraph No.9 of the impugned judgment refers), the. learned Judge Family Court has conspicuously courted and relied on the same plea by treating it as true and correct while awarding the relatively unique breast feeding maintenance allowance.
13. The above should not be understood to mean that such breast feeding maintenance allowance cannot be granted but the impugned judgment in so far as it adopts different strokes for the purpose of appreciating and evaluating the same piece of evidence while deciding two issues (issue No.1 and issue No.2-A), comes across as an oxym oron, irreconcilable and, therefore, erroneous.
14. Here we must stop to appreciate that breast feeding maintenance allowance is recognized jurisprudentially. Such allowance is recognized as being in line with the welfare of the child and it has been held that if a mother is not awarded such an allowance the sustenance of the child may suffer. Judgments reported as "Muhammad Aslam v. Muhammad Usman and others" (2004 CLC 473), "Captain 'sm. Aslam v. Mst. Rubi Akhtar" (1996 CLC 1) and "Naveed Ahmed v. Mst. Mehwish Riaz and others" (2019 CLC 511) clearly recognize, acknowledge and allow such breast feeding maintenance allowance to be awarded and which judgments clearly acknowledge such breast feeding maintenance allowance as legally, morally and religiously correct.
15. In "Naveed Ahmed v. Mst. Mehwish Riaz and others" (2019 CLC 511), a learned Single Bench of this Court at paragraph No.5 has held as follows:- "5. Almighty Allah through various verses of the Holy Qur'an has laid down the basic rules on which the rights of the child are based, in the above-noted circumstances. The English translation as well as commentary of Ayat No.233 of Surah Baqara by Mr. Abdullah Yusuf Ali in Volume-I (Two- Volume Edition -1977) at page 93 is reproduced as follows:- Translation: "The mothers shall give suck to their offspring for two whole years, if the father desires, to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child, nor father on account of his child. An heir shall be chargeable in the same way if they both decide on weaning, by mutual consent, and after due consultation, there is no blame on them. If ye decide on a foster-mother for your offspring, there is no blame on you, provided ye pay (the mother) what, ye offered, on equitable terms. But fear Allah and know that Allah sees well what ye do."
Commentary: "As this comes in the midst of the regulations on divorce, it applies primarily to cases of divorce, where some definite rule is necessary, as the father and mother would not, on account of the divorce, probably be on good terms, and the interests of the children must be safeguarded. As, however, the wording is perfectly general, it has been held that the principle applies equally to' the father and mother in wedlock : each must fulfill his or her part in the fostering of the child. On the other hand, it is provided that the child shall not be used as an excuse for driving a hard bargain on either side. By mutual consent they can agree to some course that is reasonable and equitable, both as regards the period before weaning (the maximum being two years) and the engagement of a wet-nurse or (by analogy) for artificial feeding. But the mother's privileges must not be curtailed simply because by manual consent she does not nurse the baby. In a matter of this kind the ultimate appeal must be to godliness, for all legal remedies are imperfect and may be misused."
The English translation as well as commentary of Ayat No.6 of Surah Talaq by Mr. Abdullah Yusuf Ali in Volume-III at pages 1564 and 1565 (Three-Volume Edition - 1969) is reproduced as follows:- Translation: "Let the women live (In 'iddat,) in the same style as ye live, according to your means: Annoy them not, so as to restrict them.5616 And if they carry (life in their wombs), then 5517 spend (your substance) on them until they deliver their burden: and if they suckle your (offspring), give them their recompense : and take mutual counsel together, according to what is just and reasonable.
And ye find yourselves 5518 in difficulties, let another woman suckle (the child) on the (father's) behalf.5519 Commentary: "5517. If there is pregnancy, a sacred third life comes on the scene, for which there is added responsibility (perhaps added hope of reconciliation) for both parents. In any case no separation is possible until after the child is born. Even after birth, if no reconciliation between parents is possible, yet for the nursing of the child and for its welfare the care of the mother remains the duty of the father, and there must be mutual counsel between him and the mother in all truth and sincerity.
5518. "If ye find yourselves in difficulties": e.g., if the mother's milk fails, or if her health fails, or if any circumstance arises which bars the natural course of the mother nursing her own child. There may be psychological difficulties also.
' 5519. That is, the father must stand all expenses, without cutting down the reasonable allowance to which the mother is entitled in the circumstances."
The above clearly shows that even the foster mother is to be paid for her services. The right of such a child is so intertwined with the mother that it is imperative for the mother to be duly supported, provided for and properly looked after for the period she feeds the child.
16. In "Muhammad Aslam v. Muhammad Usman and others" (2004 CLC 473), it has been held at paragraph No.8 as follows:
17. Learned counsel for the petitioner upon being confronted with the state of law in this respect submits that there are no reasons cited in the judgment about the capacity of the petitioner in paying such an allowance and that the trial court ought to have employed Section 17-A(4) for the purpose of gauging the financial health Of the petitioner before passing the judgment under challenge. Adds that even if breast feeding maintenance allowance had to be awarded the trial court could only have ordered such breast feeding maintenance allowance after gauging and determining the financial position of the petitioner and not otherwise.
18. What the counsel for the petitioner submits is legally unarguable and draws strength from the following judgments:
19. In "Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others" (PLD 2009 SC 760), it has been held at Page-766 at paragraph No.9 as follows:- "The minors are entitled to be maintained by the father in the manner befitting the status and financial condition of the father and for this reason the Family Court is under an obligation while granting the maintenance allowance, to keep in mind the financial condition and status of the father. It has to make an inquiry in this regard. It cannot act arbitrarily or whimsically. Furthermore, at the same time, the unjust enrichment of the minors cannot be permitted at the cost of the father."
20. In "Muhammad Asim and others v. Mst. Samro Begum and others" (PLD 2018 SC 819), it has been held at paragraph No.6 that, "where a husband is required to maintain his wife or child the Judge Family Court should try to ascertain the salary and earning of the husband who is required to pay maintenance."
21. In "Khalid Mahmood v. Naseem Akhtar and others" (2019 MLD 820) it has lucidly been observed at paragraph No.6 as follows: "A discreet study of both judgments passed by learned courts below reveals that they have not discussed any document on the basis of which they determined the financial status of Petitioner for fixation of the quantum of maintenance for minor respondents. It was paramount duty of learned Family Court as enshrined above to keep in mind the financial status of the Petitioner/husband before fixing quantum of maintenance. The financial status and resources of father/Petitioner and his capacity to pay could only be ascertained through summoning of documentary evidence from the concerned organization, body or authority where he is employed. Both courts below had miserably failed to do so."
22. In "Nazia Bibi and others v. Additional District Judge, Ferozewala and others" (PLD 2018 Lahore 916), it has been held with respect to gauging of quantum of maintenance as follows, "at the same time the court must determine the income of the father either through proper documentary evidence or on the basis of social status and earning capacity of the father." It has been further held at paragraph No.10 as follows:- "10. In this regard, it is noted that Section 17(A) of the West Pakistan Family Courts Act, 1964 specifically provides in subsection (4) that for the purposes of fixing maintenance, the court may summon the ,relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant. The purpose of this provision is to facilitate the court to determine the financial position of the father. The court therefore is not dependent on documents or information provided by the father and can call for relevant documents or information be it from the relevant department or organization or as the case requires, in order to determine the income of the father. In "Khadeeja Bibi and others v. Abdul Raheem and others"
(2012 SCMR 671) the august Supreme Court of Pakistan held that even on the question of determining the annual increase in maintenance in the absence of any evidence on the point of annual increase the court should refrain from imposing such annual increase in the payment of maintenance to the minor, which is not in co-relation to the income of the father and the capacity of the father with respect to income. Therefore where the court is required to look into the future need of the minor that too must be done on the basis of reasonable and likely increase that can be made based on age, needs and on the maintenance that is being fixed for the present day."
23. In "Muhammad Shakir v. Additional District Judge, Islamabad-West and 5 others" (2021 CLC 809), it has been held by the Islamabad High Court at paragraph No.22 as follows:- "22. The sequel of above discussion is that while fixing maintenance, both the learned courts have overlooked the important aspects highlighted in para-14 (supra), which are essential to determine the financial capability of the father vis-a-vis independent source of income of the respondent No.3/mother. It was incumbent upon the courts to determine the income of the father for which recourse in terms of subsection (4) of section 17(A) of the West Pakistan Family Courts Act, 1964 can be adopted which is meant to facilitate the court to determine the financial position of the father."
24. As is evident from a perusal of precedent cases on the subject, the approach of learned Judge Family Court is not correct and, therefore, needs to be corrected in Constitutional jurisdiction of this Court.
25. As a sequel to what has been discussed and noted above, judgment dated 19.11.2021 passed by a Judge Family Court is set aside only to the extent of awarding breast feeding maintenance allowance while the grant of maintenance in general as also the grant of delivery expenses is kept intact since the petitioner has not laid a challenge to these two areas. The learned Judge Family Court shall, after employing the provisions of Section 17-A(4) of the Family Courts Act, 1964 and after determining the financial status of the petitioner, decide the question and quantum of breast feeding maintenance allowance. For the said purpose, the parties are directed to appear before learned Judge Family Court on 01.02.2022.
26. Allowed in the above terms.