Maintenance allowance

Present appeals arose from a consolidated judgment passed by the family court, whereby suits filed by the plaintiff (wife) against the defendant (husband) for recovery of dower, maintenance allowance, and return of dowry articles were decided

Marriage was solemnized with agreed dower of Rs.5,00,000/-, and the plaintiff (wife) was ousted from the matrimonial home and divorce took place

The family court dismissed the suit for dowry articles, decreed dower partly in the form of a house valued at Rs.2,00,000/- and Rs.3,00,000/- in cash, and awarded maintenance at Rs.10,000/- per month from 03.02.2022 till divorce and for the iddat period

Held: The defendant though levelled the allegation of bad character against the plaintiff but he failed to prove the same rather such conduct of defendant was a proof of the fact that his behavior was cruel towards the plaintiff/wife so if wife left the house of husband due to allegations of bad character by the husband, her desertion could not be declared as willful, thus the court below rightly declared the plaintiff entitled to get the dower as well as maintenance allowance

Since the plaintiff herself pleaded in her plaint that after marriage she was re-settled with the defendant many times and lastly she was ousted from home on 03.02.2022, hence the court below rightly declared her entitled to get the maintenance form 03.02.2022

The quantum of maintenance fixed by court below was also justified because the parties agreed that in case of desertion the defendant was bound to pay maintenance of Rs.10,000/- per month

Plaintiff/wife was also entitled to receive the dowry articles mentioned in the list or their depreciation price since the marriage remained valid for four years and plaintiff failed to mention the price of every item separately

Moreover, plea from husband that list of dowry articles was not signed by wife or her counsel had no force

Documenting of dowry articles was not necessary to be proved in strictosensu

Appeal filed by wife was accepted and those filed by husband were dismissed, in circumstances.

Word 'maintenance' in the context of Muslim family laws, as far as wife and children are concerned, is inclusive of many heads not explained but is not exhaustive

Maintenance cannot be limited by cap and has to be looked into with reference to each case

If medical treatment either for a wife or minor does not fall within the definition of maintenance, then no husband would take either his wife or children for medical treatment and those dependents (under the law) would then be deprived of such maintenance allowance

Maintenance in such context has a wide definition and is inclusive of every possible action for the wellbeing of children and wife, but within means

Medical treatment cannot be scrapped from definition of maintenance and cannot be disregarded as one of the components to be considered as part of maintenance

Supreme Court declined to interfere in the judgment passed by High Court

Petition for leave to appeal was dismissed and leave to appeal was refused.

Petitioner / husband was aggrieved of quantum of amount of dowery articles while respondent / minor assailed finding of Lower Appellate Court which reduced maintenance allowance from Rs. 8,000/- to Rs. 6,000/- per month

Contention of petitioner / husband was that Nikah Khawan/ Registrar unauthorizedly incorporated certain entries in Nikahnama, which were not settled between the parties

Validity

If Nikah Khawan/Registrar mentioned un-settled conditions in Nikah Nama, petitioner could conveniently approach Deputy Commissioner or authorities of Local Government concerned for rectification in addition to putting criminal machinery in motion by filing a complaint before relevant authority

Nikah Khawan/Registrar fell within the definition of "public servant" in terms of section 21 of Penal Code, 1860

Petitioner / husband could not take premium of inaction on his part, as he did not refer to any material to show that he had challenged entries of Nikah Nama before the relevant forum

Father of respondent / wife was owner of reasonable chunk of land at the time of marriage between parties and he was in a position to give dowry articles worth Rs.200,000/- to his daughter

There was custom in the locality that daughters were given dowry articles at the time of their marriage

High Court declined to interfere in findings of both the courts below on the point of dowry articles

High Court set aside findings of Lower Appellate Court on the point of maintenance of respondent / minor and restored that of Trial Court

Constitutional petition was disposed of accordingly.

Petitioner / husband was aggrieved of fixation of monthly maintenance allowance to respondent / wife during proceedings of suit for restitution of conjugal rights

Validity

Wife while resisting a suit for restitution of conjugal rights can raise any of the permissible claims covered under Family Courts Act, 1964 but in such case Family Court would be obliged to provide opportunity to husband (plaintiff) to file a rejoinder in response thereto, which has to be treated as written statement on his behalf

Family Court allowed respondent / wife to raise her claim of maintenance while responding in suit for restitution of conjugal rights, filed by petitioner / husband but without affording the latter an opportunity to submit rejoinder and had proceeded to fix interim maintenance of respondent / wife which even otherwise, was negation of S. 17A of Family Courts Act, 1964

High Court directed Family Court to permit petitioner / husband to file his rejoinder to claim of maintenance, raised by respondent / wife in her written statement and on receipt of the same, if so filed, proceed to fix interim maintenance

High Court set aside order passed Family Court fixing maintenance allowance

Constitutional petition was allowed accordingly.

Petitioner / ex-husband of respondent and father of two minor children, was aggrieved of fixation of maintenance allowance and direction to pay past maintenance and that of Iddat period

Validity

Determination by two Courts below that petitioner was liable for paying maintenance of respondents and the amount set was appropriate per child

This was a finding of fact within the exclusive jurisdiction of two Courts below

Petitioner could have challenged such findings in High Court's limited Constitutional jurisdiction, had he demonstrated that such findings were unsupported by evidence or resulted from a misinterpretation of evidence

High Court declined to interfere in concurrent findings of facts by two Courts below, which were thoroughly evaluated and assessed and the conclusions were well reasoned

Constitutional petition was dismissed, in circumstances.

Constitutional petition was dismissed, in circumstances.

Petitioner/husband was aggrieved of judgments and decrees passed by two Courts below fixing maintenance allowance of respondent/ wife and minor children

Plea raised by petitioner/husband was that he had divorced respondent/wife

Validity

High Court in Constitutional jurisdiction refrained from interfering in findings of fact recorded by two Courts below, as they were not contrary to record nor arbitrary or whimsical

Bald assertions and no specific instance was brought to the notice of Court that could be regarded as case of misreading or non-reading of material evidence having direct and decisive bearing on the issues causing miscarriage of justice

Both the Courts below exercised jurisdiction vested in them without violating any principle governing assessment and appraisal of evidence

Constitutional petition was dismissed, in circumstances.

Trial Court after taking into consideration oral as well as documentary evidence on record fixed quantum of maintenance allowance keeping in view the financial status of petitioner/ex-husband

Petitioner/ex-husband did not produce any documentary proof/ evidence in order to support his version

High Court declined quantum of maintenance allowance fixed by Trial Court to be termed as harsh as it was hardly sufficient in view of prevailing inflation, to meet needs of daily life of respondents/ex-wife and minor children

Petitioner/ex-husband was legally, morally and religiously bound to maintain his children at every cost and no exception could be taken to it

Petitioner/ex-husband was not able to establish and substantiate necessities of minor children, his affordability and sources of his income otherwise than determined concurrently by Courts below

Trial Court was not justified to grant maintenance allowance to the respondent/ex-wife after effectiveness of divorce rather it should have been granted till Iddat period only

High Court set aside the findings of Trial Court to the extent of award of maintenance allowance to respondent/ex-wife after iddat period and maintenance allowance was modified accordingly

Constitutional petition was allowed accordingly.

Petitioner was father of minors who assailed maintenance allowance enhanced by Lower Appellate Court to be paid by him to his estranged wife and minor children

Validity

'Maintenance' means and includes food clothing and lodging which is responsibility of father to pay to his children and wife

Provision of S.17-A of Family Courts Act, 1964, specifically provides fixing of maintenance

Petitioner was responsible to take care of his minor children as well as his estranged wife

Mere statement of petitioner that he was not earning much did not discharge him from such responsibility

Object of determining maintenance was to ensure all probabilities that the minor was to be maintained by father in dignified manner with reasonable comfort and mother was not left to bear financial burden of minors

High Court declined to interfere in judgment and decree passed by Lower Appellate Court enhancing maintenance allowance, as the same was fair and just

Constitutional petition was dismissed in circumstances.

Respondent filed petition under S. 9 of Muslim Family Laws Ordinance, 1961 for recovery of maintenance allowance which was allowed and maintenance allowance of Rs. 40,000 per month was fixed

Petitioner, being aggrieved, filed appeal which was allowed and maintenance was decreased to Rs. 20,000 per month

Contentions of petitioner were that after promulgation of Family Courts Act, 1964, the Arbitration Council had no jurisdiction to fix maintenance allowance and that under R. 5(6) of Rules Under Muslim Family Laws Ordinance, 1961 all decisions had to be taken by majority

Validity

Section 21 of Family Courts Act, 1964 provided that nothing contained therein would affect any of the provisions of Muslim Family Laws Ordinance, 1961 or Rules framed thereunder

Arbitration Council and Family Court had concurrent jurisdiction in family matters, which fell within their respective domain

Remedy of maintenance allowance under S. 9 of Muslim Family Laws Ordinance, 1961 was in addition to seeking any other remedy available under the law

Same matter, however, could not proceed simultaneously under the Muslim Family Laws Ordinance, 1961 and Family Courts Act, 1964 but subsequent proceedings under any of the laws were not barred merely because earlier proceedings were launched and concluded under the other law

Perusal of impugned order revealed that representative of respondent agreed with the decision of Chairman Arbitration Council whereas the representative of petitioner was absent, hence it was a majority decision under R. 5(6) of the Rules Under Muslim Family Laws Ordinance, 1961

Petitioner's earnings being reasonable, maintenance allowance was neither arbitrary nor unreasonable warranting interference through constitutional petition

Petitioner had failed to place on record any document regarding his exact income

Constitutional petition was dismissed, in circumstances.

Petitioner (Ex-wife)/ decree-holder contended that executing court had rightly held her execution petition as maintainable

Respondent/ Judgment-debtor contended that Appellate Court had rightly dismissed the execution petition as the same was time-barred being filed after more than three years of passing of the decree

Validity

Respondent did not pay any maintenance allowance as per decree till the filing of execution petition so the petitioner on denial of maintenance allowance moved the executing court

Provision of Limitation Act, 1908 were not applicable in family matters in strict sense

Article 181 of Limitation Act, 1908 was residuary in nature which dealt with the situation when someone had to move an application and not execution petition for which no period of limitation was provided in the law and even in the Limitation Act, 1908 therefore, Appellate Court while appreciating Art. 181 of the Limitation Act, 1908 had erred in law by applying the same to the execution matter

Petitioner/decree-holder had averred in execution petition that respondent/ Judgment debtor had not paid decretal amount of maintenance so respondent could not be given benefit of wrong of his refusal to pay the decretal amount in any garb

High Court set aside the judgment passed by the Appellate Court and restored the order passed by the Family Court/Executing Court

Constitutional petition was allowed accordingly.

Petitioner/judgment debtor contended that as his surety was behind the bars therefore, the Executing Court could not send him to judicial lock-up for implementation of decree against him

Validity

Surety was as much bound by his undertaking as was the judgment debtor, and both were collectively and severally liable to make payment to the decree-holder

Surety would not be absolved of his liability if judgment debtor was sent behind the bars

Surety would have been conscious of his liabilities and he would not be allowed to evade from the same

Record revealed that surety was arrested and sent to prison but after the arrest of the petitioner (Judgment debtor), executing Court released him (surety)

Said action taken by the Executing Court was in accordance with law

Impugned order passed by the Executing Court was interim in nature and constitutional petition would not lie before the High Court as S.14(3) of the Family Courts Act, 1964 showed that no appeal or revision would lie against the interim order passed by the Family Court

No illegality or infirmity having been noticed in the impugned order passed by the Executing Court

Constitutional petition was dismissed accordingly.

Petitioner/judgment-debtor contended that in absence of specific provision under Family Courts Act, 1964, Executing Court was not justified in passing order for attachment of property of the judgment-debtor

Respondent/decree-holder objected to maintainability of appeal against interim order of Executing Court contending that order of attachment of property of judgment-debtor was justified

Validity

Although mode of execution, through recovery as arrears of land revenue, had explicitly been provided in S. 13(3) of Family Courts Act, 1964 and S. 17 had excluded applicability of Code of Civil Procedure Code, 1908, however, Family Court could follow the procedure as contained in the Code of Civil Procedure Code, 1908 for execution of decree

Specific provision in the Act for the execution of decree had not excluded the powers of the Executing Court to adopt any other procedure permissible under law

Process of recovery through arrears of land revenue would come into operation only when the Trial Court while passing the decree had expressly directed to do so whereas, in the present case, no such direction existed, therefore, it was open for Executing Court to adopt any lawful procedure for the satisfaction of decree

Family Court was a quasi-judicial forum which could draw and follow its own procedure provided such procedure was not against the principles of fair trial

Section 14 of Family Courts Act, 1964 had excluded a right of appeal from an interim order which could not be bypassed by bringing the said order in constitutional jurisdiction of High Court

No illegality having been noticed in the impugned judgment, constitutional petition was dismissed.

Petitioner was brother of the judgment-debtor who being his special attorney, kept on appearing in the Courts and also presented his property as his surety in the proceedings before the Appellate Court

Respondents contended that Executing Court had rightly ordered to attach the property of the petitioner to satisfy the decree on their application under O. XXI, R. 12, C.P.C.

Petitioner contended that his objection petition was wrongly dismissed as he was already absolved of his surety bond furnished before Appellate Court as the same was in connection with decree passed by the Family Court in the year 2010 whereas Appellate Court had remanded the matter to the Family Court

Validity

Property sought to be attached by the respondents was, admittedly, owned by the petitioner, and not by the judgment-debtor

Application under O. XXI, R. 12, C.P.C., showed that property in question was in the name of the petitioner

Under O. XXI, R. 12, C.P.C., only moveable property belonging to the judgment debtor could be attached

Judgment-debtor being not the owner of the said property, Executing Court could not attach the same

No statement or undertaking, in the present case, had been given by the petitioner that decree passed against the judgment-debtor would be satisfied by the petitioner from his own personal property

Surety bond furnished by the petitioner before Appellate Court was only with respect to the pre-remand decree whereas said decree was set aside by the Appellate Court

With the setting aside of the said decree, the liability of the petitioner under the said surety bond came to an end

Said surety bond could not be stretched to bound the petitioner for any decree that could be passed against the defendant/judgment-debtor in the post-remand proceedings

Fact that property in-question was owned by the petitioner and not by the judgment debtor was not disputed, therefore, decree passed in post-remand proceedings, could not be satisfied by attaching or selling the property which belonged to the petitioner

Terms and conditions of the special power of attorney executed by defendant/judgment-debtor in favour of the petitioner had only authorized the petitioner to deposit money for the purposes of any proceedings on behalf of defendant/judgment debtor and not to pay decretal amount from his own pocket

Concurrent findings of both the Courts below suffered from jurisdictional irregularity by the misconception of the terms of the said power of attorney

Respondents were at liberty to adopt alternate ways to satisfy the decree, either by enforcing decree abroad or by applying Executing Court to issue warrant of arrest against judgment-debtor

Revision petition was allowed accordingly.

Judgment debtor (father) was sent to civil prison till the satisfaction of decree and property belonging to the grandfather was ordered to be attached

Contention of grandfather was that he was not party to the suit and decree could not be executed against him

Validity

Liability of grandfather to maintain his grandchildren would start when father was poor and infirm and mother was also not in a position to provide maintenance to her children

Such liability of grandfather was dependent upon the fact that he was in easy circumstances

If father and mother were alive then grandfather could not be held responsible for maintenance of his grandchildren unless it was first determined that he was in easy circumstances

Family Court was bound to first adjudicate and determine such fact which could not be done unless he was a party to the suit having fair opportunity to explain his status and position

No decree could be executed against a person who was not a party to the proceedings

Executing court could not go beyond the decree

Decree passed by the Family Court would remain in field to the extent of actual judgment-debtor even after suffering civil prison unless it was satisfied

Process of execution of decree could not shift towards the grandfather only on account of mere fact that judgment-debtor had failed to discharge his liability under the decree

Family Court could adopt the procedure provided in Civil Procedure Code, 1908 for execution of its decree

Judgment-debtor could be sent to civil prison for one year

Impugned order for attachment of property of grandfather was un-warranted by law which was declared illegal and unlawful

Constitutional petition was allowed in circumstances.

Contentions of the defendant (father) were that Family Court had misread and non-read the evidence on record; that the defendant (father) was a labourer and was working on daily wages while he had also to support his old parents; that plaintiff (respondent) failed to prove the income of the defendant by bringing on record any cogent evidence

Validity

Contention of the defendant that he was a labourer on daily wages was just a bald assertion as he had failed to bring any material or evidence in support of his claim

Family Court had awarded maintenance to the minor at the rate of Rs.1500/- per month, considering the version of the father that he was a labourer and could not afford to maintain his child on a higher level

Family Court had rightly taken into consideration the minimum needs of a five years old girl, but no one could deny the inflation rate and ever rising prices of commodities in the country

Appellate Court left with no option but to use its judicial mind to arrive at a reasonable level of sustenance for the minor, who could not be left to strive on the plea, which had not been proved by the father that he had very meagre resources

Even if the claim of the defendant was considered that he was a labourer, meaning thereby that he was an able-bodied person and he could undertake additional work to meet up with his obligation of providing maintenance to his minor child, at least, to a level that she was able to sustain herself

No illegality or perversity in the judgment of the appellate court was found

Constitutional petition was dismissed in limine.

Husband was bound to maintain his wife throughout the period she remained in matrimonial bonds with him so long she was faithful to him and had obeyed reasonable orders but he was not bound to maintain her if she had refused herself to him or otherwise had disobeyed

Refusal or disobedience was justified if dower was not paid or she was forced to live with her husband despite cruelty

Wife might sue for maintenance allowance if husband had refused to maintain her

Wife was bound to perform her part of obligation and only then she could claim maintenance

Husband might refuse to maintain his wife if she had refused to live with him and she was not ready to perform her part of duty and had denied to live with him as his wife only then she was not entitled to maintenance allowance

When wife had successfully proved that she was forced to abandon the house of her husband then she was entitled to maintenance

Question whether wife had voluntarily left the house of her husband or she was ousted from the house or she was forced to leave the house due to cruel attitude had to be decided on the basis of evidence

Cruel attitude was not confined only to the extent of physical violence but same would also include mental torture, hateful attitude of husband or other inmates of the house and other circumstances in presence of which wife was forced to abandon the house of husband

Cruelty by conduct of a spouse would also justify the grant of divorce

Wife was not entitled to maintenance where she had refused to return to the house of her husband without sufficient cause

Person who was poor was bound to maintain, his wife even if he was necessitous and his sons till they attained puberty and daughters were married

Maintenance to the wife was not an ex gratia grant which would include food, entertainment and lodging

When wife had proved that she was ousted from the house of husband then a decree for restitution of conjugal rights was no bar in a suit for maintenance

When wife had abandoned the residence of her husband voluntarily without any reason then she was not entitled to past or future maintenance.

Subsequent agreement to sell regarding the property attached by the Family Court in the execution proceedings of a decree for recovery of maintenance allowance

Effect

Plaintiff (wife) filed suit for recovery of maintenance allowance for herself and for minors

Trial Court decreed the suit

Plaintiffs being dissatisfied preferred appeal and the appellate court awarded maintenance to minors @ Rs.25,00 per month from the date of institution of suit with an increase of 25% after every three years and @ Rs.15,00 per month to plaintiff (wife) from the date of institution of suit till she was divorced

Plaintiff (wife) after dismissal of constitutional petition of defendant (husband) against the judgment and decree of the appellate court filed an application for restraining respondent (husband) from alienating his share in the property, which was accepted by the executing court

Defendant (judgment debtor) did not appear to execute the decree, therefore, the property in question was attached

Respondent (objector) filed objection petition for setting aside order of attachment of the property on the strength of decree having been passed by the appellate court for specific performance of agreement to sell

Contention of the wife was that the respondent (objector) was brother-in-law of the respondent (husband) and they in connivance with each other had tried to frustrate the object of decree passed by the Family Court in favour of the wife and minors on the basis of a subsequent agreement to sell the property in dispute and decree passed by the appellate court in favour of the respondent (objector)

Pleas of the respondent (objector) were that he being the decree holder was entitled to have the fruits of said decree; that the property in question could not be attached in the execution proceedings for recovery of maintenance allowance passed in favour of the wife and minors

Validity

Agreement to sell dated 8-8-2007 was executed by husband in favour of respondent; suit for specific performance was filed on 3-1-2008, which was dismissed by the civil court, however, the appeal filed by respondent was accepted vide ex parte judgment and decree dated 28-12-2008

Agreement to sell, filing of the suit for specific performance and the judgment and decree passed in favour of respondent (objector) were all subsequent events to the decree of maintenance allowance passed in favour of the wife and minors; respondents (husband and objector) being close relatives in connivance with each other had tried to frustrate the decree of maintenance allowance passed in favour of the wife and minors

Any agreement to sell executed by the respondent (husband) regarding his property after the decree passed against him was illegal and unlawful and did not create any right in favour of the subsequent purchaser (objector)

Sale-deed executed by husband was result of fraud and connivance which could not be allowed to be made a tool to frustrate the judgment and decree of maintenance allowance passed in favour of the wife and minors

Appellate Court had failed to apply its judicial mind while passing the judgment and decree

Constitutional petition was allowed in circumstances.

Appellate Court had found that the Trial Court rightly fixed maintenance allowance keeping in view the financial position of the husband

No legal infirmity or jurisdictional defect was pointed out

High Court declined interference

Constitutional petition was dismissed.

Divorce effected by Khula or Mubara'at operated as a release by the wife of her dower, but it did not affect the liability of the husband to maintain wife during her Iddat

Maintenance of wife had always been considered not. as a "benefit" but as a "right" of the wife and was not returnable in the case of Khula, for it was the duty of the husband to maintain his wife as long as she remained in wedlock

Even after divorce, till completion of Iddat, wife was still entitled to claim maintenance and fact that suit for recovery of maintenance was filed during subsistence of marriage or afterwards was of no significance, if during period for which maintenance was claimed marriage in between the parties remained intact.

Husband had brought on record his pay slip to prove that he was earning 2000 Dirham per month but in his own statement he admitted him as owner of property worth crores of Rupees in Pakistan, which had shown his financial status

Rate of maintenance allowance fixed by two courts below was not in excess for plaintiffs being daughters of defendant

High Court, in exercise of constitution jurisdiction, declined to interfere in judgments and decrees passed by two courts below

Petition was dismissed in circumstances.

Grievance of father of minor was that Family Court while fixing monthly maintenance allowance also fixed 15% annual increase

Validity

Record did not establish that /father was equipped with means to discharge his liability towards annual increase in maintenance of minor as ordered by the Courts below

High Court declined to interfere in the award of maintenance awarded to minor but rate of annual increase of maintenance was reduced from 15% to 5% annual

Minor was at liberty to approach Family Court for increase in her maintenance due to any change in any circumstance

Petition was allowed accordingly.