Suit for maintenance

Expression "the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year"

Applicability

During execution of decree for recovery of maintenance fixed by Family Court, dispute had arisen as to quantum of annual increase in the maintenance so fixed

Validity

Expression "the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year" ordinarily implies that quantum of maintenance fixed under a decree does not remain static or constant but is a variable figure which is meant to increase after each year

After increase of 10% at the end of first year, a new quantum of maintenance comes in field and the amount gets merged or amalgamated in the quantum of maintenance fixed by Court

Such process is repeated after each year till the legal entitlement of wife or children under the decree

Annual increase of each year is required to be calculated on merged amount of last preceding year for the reason that 10% increase is intrinsically linked with the principal amount and is an inseparable part of the decree

High Court directed Executing Court to enforce decree under execution in accordance with law and objection petition of respondent was dismissed

Such increase would be applied to pending proceedings and was not applicable to past and closed proceedings which had attained finality

Constitutional petition was allowed in circumstances.

Provision of S.17-A of Family Courts Act, 1964 [as inserted by Punjab Family Courts (Amendment) Act, 2015] is a specific provision dealing with suit for maintenance as a special category of family claims

Provision of S.17-A is introduced through Punjab Family Courts (Amendment) Act, 2015 on 18-03-2015, which has placed maintenance of wife and children at a higher pedestal than other family claims

Maintenance allowance serves as a means of subsistence and survival for wife and children, intrinsically connected to their right to life guaranteed under Arts. 4 & 9 of the Constitution

Discretionary powers on Family Court have also been conferred under S.17-A of Family Courts Act, 1964 [as inserted by Punjab Family Courts (Amendment) Act, 2015] to prescribe annual increase in maintenance to cater for future needs and requirements of wife and children as well as depreciation in value of currency in terms of inflation

No caveat is attached to the power of Family Court to prescribe such annual increase in maintenance on compound or non-compound basis

Family Court is free to pass a reasonable decree in such behalf depending on facts and circumstances of each case.

Amendment in S. 17-A of the Family Courts Act, 1964, through Punjab Family Courts (Amendment) Act, 2015, was brought about to arrest the near unbridled discretion vesting in a Judge Family Court in the matter of fixation of quantum of maintenance

Such safety valve i.e., S. 17-A(4) was specifically added for the purpose of ensuring that there is no arbitrary or to use legalese, whimsical or subjective exercise of discretion

To structure such discretion by means of provision of statute-based facilitation, a Judge Family Court was extended the space and potential of trying to gauge by means of various indicators (pay, salary, possessions, ownerships, estate, tax statement, etc), i.e., all relevant considerations, the amount of maintenance to be imposed upon a defendant.

Subsection (4) of S. 17-A allows the Family Court the facility of summon-ing relevant documentary evidence to determine the estate and resources of a husband who is to be saddled with the responsibility of providing maintenance allowance.

Such allowance is recognized as being in line with the welfare of the child and it has been held that if a mother is not awarded such an allowance the sustenance of the child may suffer.

Suit for recovery of maintenance allowance was dismissed by the Family Court for want of proof, however, in appeal the Shariat Appellate Bench of the High Court had modified the judgment and decree passed by the Family Court and had declared that the minor was entitled to recovery of Rs.5,000/- per month as maintenance allowance

Shariat Appellate Bench of the High Court, in its judgment, had not specifically mentioned any date due to which the dispute as to payment of past maintenance allowance arose

When there was no mention of any specific date, keeping in view the overall facts and circumstances of the case, the Courts below were justified in holding that the minor son was entitled for recovery of maintenance allowance with effect from the date of institution of the suit

Appeal was dismissed.

Interpretation and connotation of the word 'shall' used in S. 17A(1) of the Family Courts Act, 1964 stated.

Entitlement to maintenance of wife and children is not only a right recognized by law and the religion of Islam but the same is part and parcel of rights to life and dignity, as enshrined in Arts. 9 & 14 of the Constitution

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

Superior courts of the country have ensured nourishing rights of the minors in such a manner that applications for enforcement of maintenance allowance filed subsequently 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 not necessary rather Family Court could entertain an application for enhancement of the maintenance allowance

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

Respondent (wife) filed application before Execution Court seeking benefit of subsection (3) of S. 17-A of Family Courts Act, 1964 and 10 percent annual increment was granted

Appeal field by petitioner (husband) was dismissed by Appellate Court

Question was whether rights extended under decree were intended to be annulled /cancelled by virtue of Punjab Amendment of Family Courts Act, 1964

Court had disallowed annual increment while passing decree which decree had attained finality

Held, that subsection (3) of S.17-A of Family Courts Act, 1964, did not manifest any such intention

Legislature had not intended to make it applicable retrospectively extending opportunity to re-open decrees passed and final

Substantive rights, accrued and vested, could not be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, was retrospective in operation

No such intent was evident or could be gathered from perusal of subsection (3) of S.17-A of Family Courts Act, 1964, which could not be stretched to disturb rights created and obligations prescribed in terms of decree

Subsection (3) of S.17-A Family Courts Act, 1964, could not be construed to have annulled or substantially altered judgment and decree in the present case

Constitutional petition was allowed.

When application for fixing interim maintenance allowance is dismissed, the same attains finality at least to the extent of claim of interim maintenance allowance during the pendency of the suit, consequently, the affected party, may agitate the matter before the Appellate Authority by filing appeal against the decision given on his/her application in terms of S.14 of the Family Courts Act, 1964.

Relations of the parties got strained, petitioner (wife) left the house of respondent (husband) and remained in her parents' house

Ultimately, the parties entered into an agreement

Petitioner preferred suit on the basis of compromise deed by asserting that the respondent had failed to comply with the conditions of the compromise deed

Trial Court partially decreed the suit whereas Appellate Court dismissed the suit

Validity

Compromise deed was an un-attested document and was not exhibited

Petitioner had left the house of her husband due to some domestic problems and had refused to come back to her husband's home

Attorney of petitioner had admitted during cross-examination that the petitioner was not willing to go with the respondent

Petitioner could not claim her maintenance without performing conjugal rights, hence, she was not entitled to maintenance and the judgment passed by Appellate Court to the extent of petitioner was maintained

Record transpired that the respondent had failed to provide maintenance to his children, therefore, the suit was liable to be decreed to the extent of his children

Suit was decreed to the extent that minors were held entitled to a certain amount of maintenance allowance

Petition was disposed of accordingly.

Any order passed by the Judge, Family Court under S.17-A of Family Courts Act, 1964, could not be challenged through constitutional petition, unless the Court passing the order lacked jurisdiction or the order was otherwise illegal

Interim orders qua fixation of monthly maintenance by the Judge, Family Court could not be assailed in constitutional jurisdiction, even though in some cases they were harsh because the determination of adequacy or inadequacy of the quantum of maintenance would certainly require factual evidence or inquiry, which could not be made in the proceedings under Art. 199 of the Constitution

Constitutional petition was dismissed.

Defendant husband, was responsible to provide maintenance to his wife so that she could live a respectable life but he had failed to maintain her

Plaintiff wife was entitled to maintenance allowance, irrespective of the fact as to whether she left the house of her own choice or was compelled to do so; she was held to be entitled to the award of decree

Constitutional petition filed against the decree passed by the courts below was dismissed.

Petitioner called in question order passed by Judge, Family Court whereby he, while striking off the defence of petitioner, decreed the suit for recovery of maintenance allowance in favour of minors

Validity

Petitioner had skipped the payment of interim maintenance allowance whereafter the Trial Court had struck off the defence of the petitioner

Use of word "shall" in S.17-A of Family Courts Act, 1964, had clarified the intention of the legislature that in case of non-compliance of the order for payment of interim maintenance allowance within the time fixed by law, not only the defence was to be struck off but as a consequence thereof, the suit was to be decreed; therefore, the said provision had to be treated as mandatory in nature

Constitutional petition was dismissed.

Constitutional petition can only be entertained in case of any illegality, perversity or erroneous exercise of jurisdiction.

Petitioner assailed by Constitutional petition, order passed by Judge Family Court whereby he, on an application under S.17-A of Family Courts Act, 1964, was directed to pay maintenance to the respondent/wife till she rejoined him

Validity

Interim order was not an appealable order

Legislature, while denying the appeal against interim order, did not mean that the aggrieved person could approach the High Court under Art.199 of the Constitution and against final order could file an appeal before the court subordinate to the High Court

Entertaining a constitutional petition in ordinary case against interim order, which was neither without jurisdiction nor contrary to law, would defeat the very purpose of not providing appeal against interim order

Aggrieved party had to wait for final order and after final order, he could impugn both the interim and final order in appeal before the appellate court

Constitutional petition was dismissed.

Petitioner assailed judgment and decree passed by Trial Court on the ground of having no territorial jurisdiction to entertain the suit

Contention of petitioner was that wife used to reside at place G and she never ordinarily resided at place K and that as per R. 6 of Family Courts Rules, 1965, the wife could not file a suit for maintenance from the place of her ordinary residence

Validity

Petitioner himself had approached the Family Court at place G with a plaint but the said court directed him to approach the Court having jurisdiction at place K

Petitioner having not challenged said verdict before any forum, could not be allowed to reopen an already settled matter, under S. 7 of Family Courts Act, 1964, a plaint for dissolution of marriage could contain all claims including maintenance, meaning thereby, that if a wife filed suit for dissolution of marriage from the place of her ordinary residence, she could combine the prayer of maintenance along with other prayers

If contention of petitioner was admitted that R. 6 of Family Courts Rules, 1965 did not allow the wife to file a suit for maintenance from the place of ordinary residence, then it would be a contradictory view as to a clear-cut provision provided under first proviso of S. 7, Family Courts Act, 1964

Rule 6 was a beneficial rule framed with intention to provide convenience to a wife, separated from her husband, as such, the relief given to a wife under said Rule could not be stretched in favour of husband by forcing her to file a suit for maintenance at his place of residence

Suit for maintenance was competently filed

Constitutional petition was dismissed.

Appellant/father contended that no past maintenance was claimed by the plaintiffs in the pleadings so decree of past maintenance was illegal

Appellant/father submitted that claim was made by the minors and not by their mother so she was not entitled to maintenance allowance

Respondent/ plaintiffs contended that their mother, along with plaintiffs, was ousted from the house six years prior to institution of claim so they were entitled to get past maintenance

Validity

Trial Court awarded the past maintenance on the ground that it was proved from the evidence that the plaintiffs were ousted from the house six years back, therefore, they were entitled for the past maintenance

Plaint revealed that the plaintiffs had not claimed the past maintenance

Trial Court, however, recorded its findings that the suit for past maintenance was vague because of incompetence of the counsel, and awarded the past maintenance

Findings recorded by the Trial Court made it clear that past maintenance was not claimed by the plaintiffs but Trial Court awarded the past maintenance only on the ground of ousting of the plaintiffs from the house of the defendants six years back was proved

Supreme Court observed that only such relief could be granted to a party which was claimed

Past maintenance was not prayed for, without specific prayer, the same could not be granted

Plaintiffs were entitled for maintenance from the date of institution of the suit

Decree to the extent of past maintenance as well as to the extent of mother/wife was set aside

Judgment and decree of two courts below were modified

Appeal was partly accepted.

Family Court decreed maintenance allowance to minor striking off defence of father in wake of his failure to provide interim maintenance allowance

Record revealed that Family Court proceeded to strike of right of defence, and suit of plaintiffs to the extent of maintenance allowance was decreed under S.17-A of the Family Courts Act, 1964

Father was man of means and had sufficient source of income to meet decreed amount of maintenance which was Rs.5000/- monthly

Even otherwise, it was legal, moral and religious obligation of father to maintain his daughter

Appellate Court had rightly found that in view of amended notification decreed maintenance allowance was not appealable

Constitutional petition was dismissed accordingly.

Some amount must be paid by husband to wife immediately, which may be subsequently adjusted by Family Court, if decree is passed.

Appellate court upheld decree of maintenance of rupees thirty-five hundred per month on ground that no appeal was maintainable against maintenance for less than rupees five thousand

Validity

Maintenance as a whole would determine pecuniary jurisdiction of appellate court

Under S.17-A of West Pakistan Family Courts Act, 1964, if defendant had failed to pay interim maintenance fixed by trial court, then not only right of defence could be struck off but decree could also be passed

Appellate court had incorrectly found that order of maintenance passed by Family Court was interim order under S.14(3) of West Pakistan Family Courts Act, 1964, therefore no appeal could be preferred against the same

High Court, setting aside impugned judgment and decree, directed appellate court to decided appeal on merits

Constitutional petition was allowed in circumstances.

Contention of the petitioner/husband was that he had no knowledge about the pendency of case and he was entitled to get an opportunity to contest the case on merit

Validity

Claim of the petitioner/husband was based upon false plea that he was not served with summonses/notices, which was not supported from the record

Equitable relief could not be granted to person, foundation of whose claim was based upon illegality

Petitioner/husband had approached the Court with unclean hands, as he suppressed the fact that he had served twice through bailiff in the trial Court, therefore he was not entitled to any relief

Respondent was wife of the petitioner, therefore she filed the case for maintenance before trial Court and under the Islamic Law the husband was duty bound to maintain his wife, which was neglected by the petitioner

Constitutional petition was dismissed.