DR. KHURSHID IQBAL, J.- This judgment aims at disposing of the instant and W.P No. 228-D/2023.
The reason is that both involve the same question of law and fact.
2. Muhammad Raheel, through the writ petition No. 217-D/2023, has assailed the sires of order dated 03.4.2023, whereby, the learned Judge Family Court-II, D.I.Khan, while disposing of the application of respondent/mother, fixed interim maintenance @ Rs. 12000/- per month for Muhammad Riyan, his minor son.
3. The writ petition No. 228-D/2023 was against the same order dated 03.4.2023, whereby the petitioner/plaintiff sought enhancement of maintenance allowance upto Rs. 40,000/-per month for minor Muhammad Riyan.
4. Heard. Record perused.
5. Muhammad Riyan is the real son of the parties. It is a hard fact that maintenance allowance of the minor is legal and moral responsibility of the father coupled with the fact that it is an indispensable right of the minor. On this score alone, an interim order for grant of maintenance allowance has to be passed at a convenient stage of the proceedings and the learned trial court has to consider the interest and protection of the minor at the earliest. By now, it is well-settled that a father is not only legally, but also morally, under an obligation to meet the expenses of his minor issue, regardless of the fact that the minor either resides with him or his mother. In addition to it, Family Court has to take into consideration the subject interest of the minor at the earliest. To this end, a Family Court has to adopt a pragmatic approach while fixing the interim maintenance. The Issue of maintenance allowance is dealt with under Section 17-A of the Family Courts Act, 1964 which is reproduced for ready reference as under: 17-A. 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.
6. It cannot be denied at all that a father is under legal, moral and religious obligation to maintain his children. In Islamic law, a father is under legal, moral and religious obligation to maintain his children till the age specified by law/sharia. Of great significance is the fact that such obligation is a diktat laid down in the Holy: "And clothing and maintenance must be borne by the father in a fair manner." [AL-BAQARAH, 233]
7. Such obligation of father has time and again been recognized, elaborated and emphasized by august Supreme Court of Pakistan. It has been held in the case titled "Humayun Hassan v. Arslan Humayun and another" (PLD 2013 Supreme Court 557) reading as follows: "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 and 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. ...".
8. The same view was taken in case titled "Syeda Farhat Jahan v. Syed Iqbal Hussain Rizvi and another" (2010 YLR 3275): "it is the legal and moral duty of the father of minor children to keep maintaining them he being the natural guardian till they attain the age of majority. No excuse, big or small can absolve the father from his duty of maintaining his minor children which duty has been ordained on him through divine revelation of Allah Almighty."
9. The Court must take into consideration the need of creating a stable, safe and healthy environment of the physical and moral development of the minors. Without due consideration of all these factors, the court cannot conclude positively the quantum of maintenance. However, there is no hard and fast formula for determining quantum of maintenance and the main consideration for the Court is the ability of the father to maintain the minors. A father is obligated under the law to take care of his minor children and the quantum has to be determined as per his earning, financial and social status and the ability that he may have to take care of the minors.
10. The Court has also gone through the judgment rendered by the hon'ble Lahore High Court reported as PLD 2016 Lahore 73 (Ali Adnan .Dar v. Judge Family Court, and others), wherein, it has been held that if the father found that the interim maintenance was excessive or order suffers from any illegality, irregularity or is arbitrary, fanciful, and void ab initio without jurisdiction or same had attained the status of final order, then constitutional petition is maintainable. Similarly, certain guidelines have been set in supra judgment regarding fixation of interim maintenance of minor, which plays a key role while passing such order. For ready reference, the same are reproduced as under: "I. Maintenance allowance is indispensable right of the mother and children, so the order for grant of maintenance allowance must be passed at a "convenient stage" of the proceedings.
II. Although section 17-A of the ibid Act empowers Family Court to pass an order for grant of interim maintenance allowance at any stage of the proceedings, in the normality of the circumstances, it must be passed after hearing "both of the parties" unless the attitude and conduct of the defendant/father is evasive.
III. The order for grant of interim maintenance is made on the basis of tentative assessment of the material available on file and keeping in view the social status of the parties. Further, both the above, material available and social status, should be mentioned in the order for the grant of interim maintenance. Further the quantum of interim maintenance should be "bare minimum" to meet the day to day needs of the recipient in the narrow context.
IV. Although the family laws have been enacted to promote, protect and advance the rights of women and children yet at the interim stage, the version of the respondent/defendant be given a sympathetic or somewhat preferable consideration because, non payment of interim maintenance allowance will cut throat of his invaluable right i.e. "right to defence" and in consequential effects, children/women would be the losing and deprived parties.
V. Further, if the case is not decided within the statutory period as given in Section 12-A of the West Pakistan Family Courts Act, 1964 either party may apply to the High Court for appropriate direction.
However, the order for grant of interim maintenance shall hold the field unless reviewed by High Court under section 12-A or Family Court itself reviews it at any stage as observed below.
VI. Family Court, according to section I2-A" of the West Pakistan Family Courts Act, 1964, is under legislative direction to decide the case within six months. Although this provision is directive as no penalty/consequences are mentioned for non compliance and in this regard reference is made to (2001 SCM R 1001). But in case the matter is not decided within six months and the delay is due to the plaintiff party, then Family Court either on its own motion or on the application of the defendant/father review its earlier order for grant of interim maintenance allowance."
11. While considering the above discussion, interlocutory orders of the Judge Family Court should not be assailed in constitutional jurisdiction, even though in some of cases they are harsh, but the determination of adequacy or inadequacy of the quantum of maintenance would certainly require factual evidence or inquiry which cannot be made in the proceedings under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 as held in 2018 CLC Note 43 (Shameneh Haider and others v. Haider Ali Khan), 2011 MLD 1105 Lahore (Amir Mehmood Hussain v. Niha Amir Syed), 2015 YLR 2364 (Tahir Ayub Khan v. Miss Alia Anwar), PLD 2012 Lahore 420 (Ibrar Hussain v.
Mehvish Rana and others), and PLD 2013 Lahore 64 (Muhammad Shahbaz Khalid v. Judge Family Court, Lahore). Although, the underlining legal principles to consider this legal aspect is the intention of the legislature, who has specifically prohibited filing of appeal against interim order, allowing constitutional petition would tantamount to defeating and diverting intent of the legislature. Even otherwise, there is no bar under the law to challenge the void ab initio orders, which are without jurisdiction. Learned counsel for respondents relied upon the judgment reported as 1999 SCMR 1447 (Mohtarma Benazir Bhutto v. The State). In this case, it has been held that orders at interlocutory stages should not be brought to higher courts to obtain pragmatic orders as it tends to harm the advancement of fair trial, curtailing remedies available under the law, and even reducing the right of appeal.
12. As discussed earlier, the impugned order can neither be termed as void, ab initio nor without jurisdiction. Similarly, the impugned order has not attained the status of a final order. It was passed by the learned Judge Family Court, D.I.Khan, 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, D.I.Khan. He was not condemned unheard and was provided an opportunity of hearing before passing the impugned order. The quantum of interim maintenance allowance was prima-facie rightly fixed by the learned Judge Family Court, D.I.Khan, while keeping in view the status of the parties and expenses of the minors. The learned counsel for the petitioner is unable to point out any patent illegality or material irregularity in the impugned order, therefore, the instant petition, which has been filed against an interim order passed by a Court of competent jurisdiction, is not maintainable in the eyes of law.
13. For the afore-stated reasons, maintenance allowance determined by the learned Judge Family Court-II, D.I.Khan, for minor Muhammad Riyan is found to be prima facie reasonable in view of high inflation, which does not require any modification. Keeping in view the perceived social and financial status of the parties, the interim maintenance allowance fixed at the rate of Rs.12,000/- per month for minor has rightly been determined by learned Judge Family Court-II, D.I.Khan. Hence, the instant petition coupled with W.P No. 228-D/2023, being bereft of merit and substance, are hereby dismissed in limine.