2010 PLP 32 (CLC)

S. ALI. HASSAN RIZVI, J.

This writ petition filed by Syed Aqdas Abbas petitioner seeks to challenge the validity of order dated 16-4-2009 whereby the learned Judge Family Court, Lahore had directed payment of maintenance allowance at the rate of Rs.15,000 for the minor plaintiff/respondent No.2 (Syed Muhammad Irtaza) who was a "special child."

2. The ground taken are that the petitioner had not yet submitted his written statement; that his monthly salary was Rs.41,000 and that the interim, maintenance of Rs.15,000 per month was exorbitant. In support of the above submissions, reference was made to Zafar Hussain v. Begum Farzana Nazli and others PLD 2004 Lah. 349, Makhdoom Ali v. Mst. Razia Sultana and others 2007 MLD 41 and Mst. Sitwat Chughtai and another v. Judge Family Court, Lahore and another PLD 2009 Lah. 18.

3. After hearing learned counsel for the petitioner and perusing the record, I find that the petitioner did not appear before the learned Judge Family Court unless a proclamation had appeared in the newspaper against him. Under section 9 of the Family Courts Act, 1964, he was obliged to submit his written statement on his appearance in Court. Instead of filing written statement and documents relating to his salary/income, he moved an application under section 7 of the Family Courts Act, 1964 pointing out some technicalities. The disposal of that application took six dates from 19-1-2009 to 4-4-2009. It was on the 7th date that the impugned order was passed by the learned Judge Family Court on 16-4-2009 after hearing the parties.

4. If the petitioner/defendant was faithful in prosecuting his remedy before the learned Judge Family Court, he should have submitted written statement and proof as to his salary/income. He did not do so. In para.9 of the impugned order, the learned Judge Family Court observed that the petitioner/defendant was a Professor by profession and his monthly take-home pay was Rs.41,000 per month besides other source of income on the basis of writing of books. The learned Judge also took notice of the fact that Syed Muhammad Irtaza (respondent No.2) was a special child and was under treatment of Dr. Nazir Ahmad Khan.

5. In the above circumstances, it is difficult to say that interim maintenance at the rate of Rs.15,000 per month for a special child who was under treatment of Dr. Nazir Ahmad Khan, was exorbitant. In any case, this rate of maintenance shall be adjustable at the time of final determination of the maintenance amount. If the petitioner is mindful of his defence, he should immediately submit his written statement bringing to the Court every proof as to his monthly income etc. I would have no cavil with the proposition that where rate of interim maintenance is palpably exorbitant, the same may be reduced even in writ jurisdiction. However, in the present case, there appears to be no such eventuality. The Legislature in its own wisdom, did not provide any appeal, revision or review against the order relating to interim maintenance. The order of interim maintenance cannot be disturbed in writ jurisdiction unless the same on the fact of it is shown to be exorbitant. The writ petitioner has not paid even a single penny for his retarted son and is instead fighting legal battle uptil the High Court. He did not submit his salary slip either before the trial Court or even before this Court. The reasons recorded by the learned Judge Family Court in the impugned order appear to be sound. The rulings cited being in different situations, were not apt similes. No case for interference in writ jurisdiction with the impugned order dated 16-4-2009 passed by the learned Judge Family Court has been made out. Consequently, the writ petition is dismissed in limine. H.B.T./A-213/L Petition dismissed.