2015 PLP 265 (MLD)

ABDUL RASOOL MEMON, J.

Through instant petition the petitioner has challenged the order dated 25-1-2012 passed by VIIth Family Judge, Malir Karachi whereby on acceptance of the application of the respondents Nos.1 to 4, the interim maintenance allowance of Rs.2500 per month was fixed for each respondent from February 2012 till final disposal of the suit.

2. Brief facts of the case are that the respondent No.1 Mst. Ruqayya Bano filed herself and on behalf of her three minors/respondents Nos.2 to 4, a suit before the Family Court praying for maintenance at the rate of Rs. 10,000 per month to each of the respondents. During trial, respondent No.1 moved an application under section 17-A of the Family Courts Act, 1964 seeking directions for fixation of interim maintenance allowance for respondents at the same rate till the finalization of suit. The learned Family Court vide the impugned order fixed the interim maintenance allowance at Rs.2500 per month for each of the respondents, hence this constitutional petition.

3. Learned counsel for the petitioner contended that the petitioner is a daily wager and earns Rs.200 per day and in this regard sufficient material was placed on record before the Family Judge but the same has not been considered and exorbitant amount has been imposed which is beyond the financial capacity of the petitioner to pay.

4. Admittedly, this constitutional petition has been filed against an interim order passed by the learned Family Court for all intents and purposes is an interlocutory order during the pendency of suit and the Court still to render its final verdict. The legislature has made such order non-appealable by specifically making provision in that respect by virtue of subsection (3) of section 14 of the Family Courts Act, 1964 which is reproduced as under:--

14. Appeal.

(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family court shall be appealable

(a)

(b)

(2)

(a)

(b)

(c)

(3) No appeal or revision shall lie against an interim order passed by a Family Court.

5. In the above circumstances the legislature has specifically prohibited filing of appeal against an interim order. The interim maintenance order has been provided under section 17(A) of the Family Court Act which reads as under:-- "17-A Interim order for maintenance

At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit."

6. A perusal of the above provision of law clearly indicates that the Family Court can pass an interim order as regards maintenance. Thus the interim order has been passed with jurisdiction which order ultimately will merge in the final decision of trial Court and would be appealable.

7. In plethora of case law, including one in family matters reported as PLD 2012 Lahore 420 dilated upon elaborately by me in the judgment dated 16-10-2012 passed in Constitution Petition No.S-870 of 2012 (Syed Mohsin Shah v. Mst. Mommal Aftab and another), it has been held that against an interim order in similar circumstances the constitutional petition is not maintainable. Similar view is taken in this case as well.

8. In view of whatever has been discussed above, this petition merits no consideration and is dismissed accordingly. However, before parting with this judgment I deem it appropriate in view of the nature of the matter to issue directions to the learned Family Judge/trial Court to decide the matter on merits preferably within a period of two months after receipt of this judgment. AG/8-68/Sindh Petition dismissed.