2012 PLP 1214 (YLR)

ABDUL WAHEED KHAN, J.

Brief facts are that Mst. Tahira Parveen and the minors Muhammad Ramzan and Abdul Rehman filed a suit for recovery of maintenance allowance and also for the recovery of dowry articles or in the alternative price thereof. The Family Court fixed? the? interim? maintenance? allowance? of the minors, namely, Muhammad? Ramzan? and? Abdul? Rehman? at? the? rate? of Rs.1300? per? month? vide? order? dated? 2-6-2010. The petitioner/defendant could not pay the interim maintenance allowance and the Family Court? vide? its? order? dated? 22-9-2010 struck off his light of defence to the extent of the claim of the minors for maintenance allowance and fixed the maintenance allowance of minors at the rate of Rs.5,000 per month each under section 17(a) of The Family Court Act. The petitioner/defendant filed an appeal against the aforementioned order, which was dismissed by the Appellate Court vide judgment dated 12-4-2011. Feeling aggrieved of the said order and the judgment, the petitioner/defendant has invoked the constitutional jurisdiction of this Court.

2. Counsel for the petitioner submits that petitioner is labourer by profession and an excessive maintenance allowance has been fixed by the Family Court, which is beyond the source of his income.

3. Counsel for the respondents submits that petitioner is under obligation to provide maintenance allowance to the minors and that allowance fixed by the Family Court is not excessive.

4. Arguments of counsel for the parties have been heard.

5. The Family Court passed an order on 2-6-2010 for payment of the interim maintenance allowance at the rate of Rs.1300 per month per head, but the petitioner/defendant could not comply with the same. His right of defence was struck off on 22-9-2010 to the extent of claim of the minors for maintenance allowance. Through the same order, the suit was decreed in favour of the minors namely Muhammad Ramzan and Abdul Rehman at the rate of Rs.5,000 per month each under section 17(a) of the Family Court Act, 1964.

6. Section 17(a) of The Family Court Act, 1964 is relevant and it is deemed appropriate to quote the same herein under:-- "17A. ["Interim order for maintenance:-- At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, where under 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."

7. The Family Court has jurisdiction under section 17-A of The Family Court Act, 1964 to "decree" the case for the failure of the defendant to provide interim maintenance allowance. The term "decree" is not defined in the Family Court Act, 1964. It's definition is given in section 2(2), CPC., which is reproduced as under:-- (2) "Decree" means the formal expression of an adjudication, which, so far as regards the Courts expressing it, conclusively determines the rights of the parties with record to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint 1(the determination of any question within section 144, and an order under Rule 60, 98, 99, 101 or 103 of Order XXI) but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) Any order of dismissal for default. Explanation

"

8. The word "adjudication" refers to a judicial determination of a matter in controversy, dispelling the impression of arbitrariness.

9. It is observed that judicial determination of the mater in controversy is lacking in the impugned order and thus while setting aside the impugned order, the matter is remanded to the Family Court with a direction to first consider the financial condition of the petitioner/ defendant and then to set at rest the claim of respondent/plaintiff, through a speaking order. K.M.Z./M-57/L?????????????????????????????????????????????????????????????????????????????????? Petition allowed.