2007 PLP 1366 (YLR)

SH. HAKIM ALI, J.

Mst. Shahida Parveen, respondent No.1 had filed a suit for dissolution of marriage, in which she had also impleaded her daughter Huda Khalid and two sons Noman Khalid and Adnan Khalid as plaintiffs. In the aforementioned suit, maintenance allowance was prayed for by the aforesaid plaintiff for herself as well as for plaintiffs Nos.2 to 4, children of Muhammad Khalid Javed, the defendant. In the suit, return of golden ornament and recovery of dowry articles were also prayed. The suit was contested by filing of written statement. During the pendency of the suit, on 16-3-2006 an order under section 17-A of the West Pakistan Family Courts Act, 1964 was passed by the learned Judge Family Court, by which defendant, the present petitioner, was directed to deposit Rs.3,000 per month as interim maintenance allowance for three children. He had filed an application for review of the order dated 16-3-2006, in which he had prayed for fixation of less amount of maintenance but that order was not reviewed and application was dismissed on 25-5-2006. As the writ petitioner had defaulted in payment of maintenance allowance, so on 27-9-2006, learned Judge Family Court struck off the defence of the writ petitioner. Hence this writ petition against the orders dated 16-3-2006, 25-5-2006 and 27-9-2006.

2. Learned counsel appearing on behalf of the writ petitioner submits that in fact the learned Judge Family Court had wrongly considered income of the petitioner to be Rs.9,000 per month due to some misconception. The petitioner was not owner of Hiace but was a driver who was earning Rs.3,000 per month only. Therefore, fixation of Rs.3,000 per month was too exorbitant for the petitioner to pay the maintenance allowance to the children. As to whether the petitioner has got resources and is of so much sound financial position to pay Rs.3,000 has yet to be determined through production of evidence, by the parties on the record. Therefore, this being an interim order and to facilitate the petitioner as well as to watch the interest of minors, I consider Rs.2,000 per month as sufficient maintenance allowance for the children which shall be deposited by the petitioner from the date of passing of order by the learned Judge Family Court i.e. 16-3-2006. The amount already deposited by the petitioner shall be deducted and the remaining amount shall be deposited by the petitioner within one month from today with the learned Judge Family Court and in future till final disposal of the aforementioned suit, the petitioner shall continue depositing Rs.2,000 per month for all these three children before the 10th of each calendar month. In case of failure to deposit the above noted amount, the defence of the writ petitioner/defendant shall be struck off automatically in the suit of recovery of maintenance.

3. As regards order passed by the learned Judge Family Court striking off the defence of the defendant in the suit qua the prayers regarding dissolution of marriage, return of golden ornaments and recovery of dowry articles, learned counsel for the petitioner has contended that the non-compliance of order of deposit of interim maintenance allowance under section 17-A of the West Pakistan Family Courts Act, 1964 could not be applied to the suits for dissolution of marriage, return of golden ornaments or to the suit of recovery of dowry articles. At the most, order of striking off defence could be attracted to the suit for maintenance allowance. This legal proposition has not been seriously contested by the learned counsel for respondents Nos.1 to

4. So, order dated 27-9-2006 striking off defence of the defendant/writ petitioner is declared illegal and unlawful. The suit to the extent of prayer of dissolution of marriage has already been decided in favour of Mst. Shahida Parveen and a decree has already been passed by the learned Judge Family Court in her favour. So, to the extent of prayers contained in the suit with regard to recovery of maintenance, allowance, return of golden ornaments and recovery of dowry articles, the order dated 27-9-2006 shall be considered to have been set aside and the learned Judge Family Court shall proceed with the suit from the stage it was on 27-9-2006, i.e. before the passing the order of striking off the defence of the writ petitioner/defendant, in accordance with law. However, it is clarified that the interim maintenance allowance of Rs.2,000 per month shall not be considered final determination of maintenance allowance, which question shall be decided by the learned Judge Family Court in accordance with the evidence to be brought by the parties on the record. The writ petition is disposed of on the basis of above c declaration, direction and observation. F.B./M-82/L Order accordingly.