ARBAB MUHAMMAD TAHIR, J. Listed writ petition emanates from interlocutory order dated 11.03.2024 passed by the learned Judge Family Court, Islamabad (West) whereby in suit for recovery of dower, past and future maintenance allowance filed by respondent No.2 namely Anam Iqra, interim maintenance of the lady has been fixed at the rate of Rs.100,000/- (one lac) per month. Operative paragraph-6 of the impugned order reads as under:- "6. Keeping in view above facts, perusing pleadings of the parties, going through above precedents relied by learned counsel for the parties and hearing their arguments, the matter requires evidence regarding the claim by the plaintiff and the denial by defendant which may be determined on merits after conclusion of trial. As far as the question regarding the interim maintenance for the plaintiff is concerned the documents relied by the plaintiff party reflected the relation of the defendant with the plaintiff, therefore, the monthly interim maintenance at the rate of Rs. 1,00,000/- (in words one lac rupees) is hereby fixed to be paid by the defendant in favour of the plaintiff by every fourteenth of calendar month. (In case of failure by the plaintiff party to prove the existence of marriage with the defendant, after conclusion of trial, the aforesaid amount will returnable in lump sum). While fixing the monthly interim and its quantum, the well- entrenched principles settled in the case law 2020 MLD 1523 are hereby relied firmly."
2. Learned counsel submits that in presence of categorical denial of existence of relationship of the petitioner with respondent No. 2 as husband and wife inter-se, recourse to Section 17-A of the Muslim Family Law Ordinance, 1961 (Ordinance of 1961) for fixation of interim maintenance could not have been made; that to substantiate claim as legally wedded wife, it was incumbent upon the lady to furnish a registered Nikanama, mandatory in terms of Section 5 of the Ordinance of 1961; that under the circumstances proper course is to frame preliminary issue regarding existence of marriage, before fixation of interim maintenance allowance of the lady and then to proceed further; that an acknowledgement, being made basis to assert claim of legally wedded wife in the backdrop of categorical stance of the petitioner warrants probe and determination at the 1st instance, therefore, impugned order is liable to be set aside. Learned counsel has fortified his submissions by placing reliance upon case law reported as 1986 MLD 991, 2022 CLC 24, PLD 2012 Balochistan 133 and 2010 YLR 691.
3. Heard. The parties are in contest over claim of respondent No.2 for the recovery of dower, past and future maintenance allowance. The claim of the lady/respondent No. 2 as being wife of the petitioner is based upon paragraph No. 8 of the plaint in suit filed by her, wherein she maintained that "on 06.09.2013, formal Nikah was performed at the residence of Syed Hassan Raza, address house No. 12, St. No. 13, Sector F-7/3, Islamabad, witnessed by Mr. Naeem Bukhari and Syed Hassan Raza and acknowledgement of Nikah was signed by spouses in presence of witnesses.
Photographs of the Nikah ceremony with the defendant are attached with the suit plaint and video of the Nikah ceremony will be produced at the time of evidence. Thereafter, houses were taken on rent in E-11, F-6, F-11 and F-7/4 since 2013. The rents were in variably paid by the defendant, where he always stayed with the plaintiff and her daughters (while they were in Pakistan) and when he was in Islamabad."
4 The petitioner/defendant in written statement responded to above claim of the lady under paragraph 8 in terms that "the defendant denies all claims predicated on the alleged existence of marriage. Such denials are grounded in the absence of valid and registered Nikabnama as required by law. The plaintiff bears the burden of proof in otherwise."
5. The documents available on file includes acknowledgment of Nikah, photographs, affidavit of the lady, application addressed to by Secretary Islamabad club, written by the petitioner requesting the former to include name of the lady as his spouse on club membership besides rent agreement wherein the lady is mentioned as wife of the petitioner. The claim set in by the lady ostensibly reflect existence of marriage bond between the parties and if this aspect is, seen in conjunction with the fact that no action has since been initiated by the petitioner against the lady to counter her claim set in by her in plaint, it cannot be said that impugned order does not cohere with the ground situation. Even otherwise, in case lady failed to substantiate existence of her marriage with the petitioner, she has to return the amount, received as interim maintenance, to the petitioner in lump sum.
6. On legal premises, under Section 17-A of the West Pakistan Family Courts Act, 1964 (Act of 1964), family court is competent to fix interim maintenance and remedy of appeal or revision against the interim order is barred in terms of Section 14 of the West Pakistan Family Courts Act 1964 which stipulates that:- "No appeal or revision shall lie against an interim order passed by a Family Court."
7. The Act of 1964, being a special law, bars remedy of appeal or revision against interim order, therefore, when a statute specifically excludes a remedy, petition in terms of Article 199 of the Constitution cannot be held to be maintainable against the said order as it would amount to circumvent the intention of the legislature and frustrate the express provision of law.
8. This Court in the case of "Dr. Aqueel Waris v. Ibrahim Aqueel Waris" (2020 CLC 131 Islamabad),after surveying case the law on the subject has held that "While considering the above discussion, interlocutory orders of the Judge Family Court could 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 (Aamir Mehmood Hussain Aamir Saeed), 2015 YLR 2364 (Tahir Ayub Khan v. Miss Aalia Anwar), PLD 2012 Lahore 420 (Ibrar Hussain v. Mehwish Rana and others), and PLD 2013 Lahore 64 (Muhammad Shahbaz Khalid v. Judge Family Court Lahore)."
9. The Lahore High Court in the case of "Dr. Samina Anayat v. Additional District Judge and others" (2018 MLD 448 Lahore), has held that:- "Perusal of section 14(3) of West Pakistan Family Courts Act, 1964, shows that no appeal or revision shall lie against an interim order passed by a Family Court. The Act has explicitly barred the remedy of appeal or revision against such an order, therefore, in case a constitutional petition is entertained against such an order, it will amount to circumvent the intention of the legislation and to frustrate the express provision of law. Reliance in this respect is placed upon Muhammad Anwar Khan v. Mst. Yasmin Zafar (1987 SCMR 2029), Ms. Quratulain Aleem v. Muhammad Rehman Khan and another (2006 YLR 2604) and Mst. Noor Jehan alias Tasleem Begum v.
Muhammad Arshad and another (1986 CLC 442). Since the impugned order is an interlocutory order and against such an order constitution petition cannot be filed, therefore, the petition before this Court is not maintainable. The learned Additional District Judge has rightly observed, in the appeal that appeal or revision against interlocutory matters is not maintainable."
10. In view of above, instant writ petition assailing interim order of the learned Judge Family Court is not maintainable. It is accordingly dismissed in limine. The observations recorded hereinabove shall have no impact upon case of either side before the Trial Court.