2018 PLP 1761 (CLC)

SHAHID MUBEEN, J.

Through this constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner has challenged the vires of order and decree dated 28.11.2017 passed by the learned Judge Family Court, Tandlianwala/respondent No.1.

2. Briefly stated the facts of this case are that respondent No.2 being wife and respondents Nos.3 to 5 being minor daughters of the petitioner instituted a suit against the petitioner for recovery of maintenance allowance, dower amount Rs.100,000/-, gold ornaments weighing 1-Tola 3-Masha, Rs.40,000/- as delivery expenses and dowry articles according to list Mark-A or in alternative its price Rs.4,66,500/-. The petitioner contested the suit by filing written statement. When the case was fixed for pre-trial reconciliation, the petitioner appeared before the learned Judge Family Court and got recorded his statement on oath that he has given divorce to respondent No.2 therefore, there is no chance of reconciliation. The learned Judge Family Court vide order dated 06.07.2017 fixed interim maintenance allowance of minor respondents Nos.3 to 5 at the rate of Rs.1500/- per head per month under section 17-A of West Pakistan Family Courts Act, 1964 and framed issues for the remaining claim. The petitioner failed to pay interim maintenance to the minors in compliance of order passed by the learned Judge Family Court. Therefore, the learned Judge Family Court vide impugned order dated 28.11.2017 dismissed the suit to the extent of maintenance allowance of respondent No.2 and decreed the suit to the extent of maintenance allowance of minor respondents Nos.3 to 5 at the rate of Rs.5000/- per head per month from the date of institution of suit till their legal entitlement with 20% annual increase per annum. Hence, this petition.

3. Notices were issued to respondents Nos.2 to 5 but despite personal service of respondent No.2 no one entered appearance on their behalf, hence, they are proceeded against ex parte.

4. Learned counsel for petitioner contends that the learned Judge Family Court has struck off the defence of the petitioner and decreed the suit to the extent of minor respondents in complete oblivion of section 17-A of the Family Courts Act, 1964. He further submits that fixation of maintenance allowance at the rate of Rs.5000/- per month per minor is exorbitant keeping in view the financial status of the petitioner. He lastly adds that annual increase at the rate of 20% is also excessive.

5. Heard. Record perused.

6. The impugned order and decree dated 28.11.2017 has been passed under section 17-A of the Family Courts Act, 1964, therefore, it will be advantageous to reproduce the same which is as under:- "17-A. Suit for maintenance.-(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteenth day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case." From bare perusal of above Section of the Act ibid, it is clear that learned Judge Family Court has the power to fix interim maintenance allowance of a child on the first date of appearance of the defendant and in case defendant fails to pay interim maintenance by the date given the defence of the defendant shall be struck off and suit shall be decided on the averments contained in the plaint. The wording of afore-noted Section makes the same mandatory as in case of non-compliance of order passed by learned Judge Family Court qua interim monthly maintenance of a wife or a child the defence shall be struck off. Whether the provision is mandatory or directory has been subject matter before the Superior Courts of Pakistan and it has been held that mandatory direction is one which is couched in such language as to make the violation of a statute subject to a penalty whether express or implied. Whenever a statute provides for imposition of penalty as a consequence of its non-compliance the statute is necessarily to be regarded as mandatory. Where, however, no such penalty was decipherable to be attached to the non-compliance, the enactment would be considered to be directory only, the substantial compliance with which was considered sufficient. Reference may be made to case law reported as "Asmat Ullah Khan v. Federation of Pakistan through Secretary Establishment Division and another" (2008 PLC (C.S.) 394). It has been held in case law reported as "Equity Participation Fund v. Messrs Abbrasive Products Co. Limited and 4 others" (2012 CLD 971) that one of the essential features of mandatory provisions is not merely the use of word "shall" which might be used merely to stress importance of compliance of particular requirement exercised or prescribed in the enactment. Where consequences of failure to comply with direction or requirement of a statue are not stated the direction is treated as directory and not mandatory. Further reliance is placed on case law reported as Mst. Ashifa Riaz Fatyana v. Mst. Nazia Raheel and 10 others (2011 CLC 48). Iftikhar Ahmad Shaikh v. Ch. Muhammad Din and 2 others (PLD 1990 Lahore 461) and Amir Bakhsh and others v. Allah Yar and others (PLD 1974 Supreme Court 124).

7. In this case order of interim maintenance was passed by the learned Judge Family Court on 06.07.2017 whereby the petitioner was directed to pay interim maintenance allowance to minor respondents Nos.3 to 5 at the rate of Rs.1500/- per month per head and the case was adjourned to 28.07.2017. On the said date interim maintenance was not paid and it was made clear that in case the interim maintenance is not paid the court shall proceed in accordance with section 17-A of the Family Courts Act, 1964 and the case was adjourned to 19.09.2017. On subsequent dates the petitioner did not pay the maintenance allowance as per order of the learned Judge Family Court which is also reflected from the impugned order dated 28.11.2017. The impugned order dated 28.11.2017 to the extent of striking off defence of the petitioner while applying the provision of section 17-A of the Family Courts Act, 1964 has been correctly applied by the learned Judge Family Court and does not call for any interference by this Court.

8. Respondents Nos.2 to 5 have not mentioned the accurate and exact income of the petitioner and have only stated that petitioner has good financial status, whereas the petitioner while filing written statement has stated that he is an Army man and his monthly salary is Rs.15000/-. Therefore, keeping in view the pleadings of the parties, the maintenance allowance at the rate of Rs.5000/- per month per minor prima-facie appears to be excessive and beyond the pleadings, therefore, the same is modified from Rs.5000/- to Rs.4000/- per month per minor. The increase of maintenance allowance at the rate of 20% per annum is also contrary to the judgment reported in Shahzad Yousaf and others v. Farzana Shahzad and others (2016 SCMR 2069). Therefore, the same is also modified from 20% to 10% per annum.

9. Sequel to the above, this petition is disposed of in terms of paragraph No.8 of this order. No order as to costs. MQ/A-36/L Order accordingly.