2022 PLP 1762 (MLD)

RAHEEL KAMRAN, J.

Through this writ petition, the petitioner has challenged the order dated 10.06.2021 passed by the learned Judge Family Court, Sadiqabad in execution proceedings as well as the judgment dated 30.10.2021 passed by the learned Additional District Judge, Sadiqabad in appeal whereby ten percent annual increase in the maintenance of respondent No.4 under Section 17A(3) of the Family Courts Act, 1964 (hereinafter to be referred as the "Act") has been allowed with effect from the date of promulgation of the Act.

2. Relevant facts in the background are that decree for the maintenance of respondent No.4 was passed at the rate of Rs.5,000/- per month against the petitioner on 04.06.2013. Section 17-A(3) of the Act was substituted through the Punjab Family Courts (Amendment) Act, 2015 (XI of 2015) to provide for annual increase in the maintenance at the rate of ten percent each year. Through the impugned order dated 10.06.2021, while relying upon Section 17A(3) ibid, learned executing court fixed annual increase at the rate of ten percent to the amount of maintenance decreed on 04.06.2013. The petitioner preferred appeal against the aforementioned order, which was partially allowed vide impugned judgment dated 30.10.2021 to the extent that the impugned order of the learned executing court was held to take effect from the date of promulgation of the Punjab Family Courts (Amendment) Act, 2015 instead of the date of decree dated 04.06.2013.

3. Learned counsel for the petitioner contends that Section 17A(3) of the Act has no retrospective effect and application to the case of the petitioner wherein the decree dated 04.06.2013 was passed for maintenance of respondent No.4, therefore, the impugned decisions are unsustainable in law.

4. In order to properly appreciate submission of the learned counsel for the petitioner, it would be advantageous to reproduce the provision of subsection (3) of Section 17A of the Act as substituted through the Punjab Family Courts (Amendment) Act, 2015 (XI of 2015):- (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.

5. From perusal of the above provision, it is manifest that subsection (3) of Section 17A of the Act is a provision the application whereof is conditional upon failure or omission of the Family Court to prescribe the annual increase while fixing the maintenance. It is also manifest that the increase contemplated under the said provision is a mandatory one and the Court is left with no discretion in that regard. Needless to observe that any increase under the above provision is coextensive in duration with the entitlement for maintenance. Further, the increase in maintenance under Section 17A(3) of the Act is automatic in the sense that no decree is required to be passed and the same is recoverable by the executing court while enforcing the statutory obligation. The rate of annual increase in the maintenance has also been fixed by the legislature to be at ten percent each year and the base value (i.e. the maintenance fixed by the Court) to which such rate of increase applies remains constant throughout the period of application of Section 17A(3) of the Act.

6. Entitlement to maintenance of wife and children is not only a right recognized by law and the religion of Islam1 but the same is a part and parcel of rights to life and dignity, as enshrined in Articles 92 and 143 of the Constitution of Islamic Republic of Pakistan, 1973. Growth of children, the cost of living, change in status of the parties, change in the expenditures incurred based on needs of children are some of the factors which may provide for a fresh cause of action for the children to demand enhanced maintenance allowance

4. The Superior Courts of the country have ensured nourishing rights of the minors in such a manner that applications for enhancement of maintenance allowance filed subsequent to the decree have been held to be maintainable while observing that maintenance was a continuous process and a person entitled to be maintained had a right to approach the court for adequate maintenance allowance. If maintenance allowance granted by the Family Court was insufficient and inadequate, then institution of the fresh suit was held to be not necessary rather Family Court could entertain an application for enhancement of the maintenance allowance

5. Therefore, there has not been any hindrance in the way of person entitled for maintenance to seek enhancement thereof in accordance with changed circumstances

6. However, the Provincial legislature was empathetic enough to provide an additional cushion in the form of Section 17A(3) of the Act7 to automatically cover the mistakes/omissions of the Court in terms of mandatory annual increase of the maintenance. The enactment of the above provision, besides making up for the judicial omission to order annual increase in the maintenance for enabling those entitled to cope up with inflation, purports to achieve the objects of reducing burden of costs, delays and toil of litigation and prevent burdening of the judicial system with adjudication in this category of cases. Section 17A(3) of the Act is, therefore, a beneficial and remedial or curative piece of legislation, which must be liberally construed.

7. By now, it is well settled that in the absence of any stipulation to the contrary, any change in law affecting substantive rights has prospective effect

8. A prospective statute operates from the date of its enactment conferring new rights. A retrospective statute, on the other hand, operates backwards and takes away or impairs vested rights acquired under existing laws. However, a statutory provision cannot be termed to have been given retrospective effect merely because it affects existing rights or because a part of the requisites for its action is drawn from a time antecedent to its passing9 or operation thereof is based upon the status that arose earlier.10

8. The provision of Section 17A(3) creates a new statutory right of automatic annual increase in the maintenance fixed by the Court in cases where annual increase has not been prescribed. It does not operate backwards. The fact that statutory prerequisites under Section 17A(3) of the Act (i.e. fixation of maintenance by the Court and omission or failure of the Court to prescribe annual increase in the maintenance) may be drawn from a period prior to the enactment does not render application or operation of the said provision to be retrospective, particularly when the automatic annual increase in the maintenance takes effect from the date of enactment and not the period prior to that.

9. In the impugned decision, learned Additional District Judge has held the provision of Section 17A(3) of the Act to be applicable with effect from the date of enactment of the Punjab Family Courts (Amendment) Act, 2015, therefore, plea of the petitioner qua retrospective effect and application of the said provision is unfounded and misconceived. Even in the case of Shahzad Yousaf 11, the Hon'ble Supreme Court of Pakistan, inter alia, held the maintenance to be increased at the rate of 10% each year while applying the provision of subsection (3) of Section 17A of the Act to the decree dated 19.01.2011 in the suit for maintenance.

10. For the foregoing reasons, no case of illegality or jurisdictional error in the impugned judgment passed by the learned Additional District Judge has been made out warranting interference by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, this writ petition is accordingly dismissed in limine being devoid of any merit. SA/K-29/L Petition dismissed.