Suit for recovery of maintenance

2021 MLD 337 ISLAMABAD Judicial Precedent

Ss.1-A &17-AConstitution of Pakistan, Art. 199Constitutional petitionMaintainabilityInterlocutory orderDelay in conclusion of trialSuit for recovery of maintenanceFather of minor was aggrieved of interim maintenance fixed by Family Court on the plea that the same was exorbitantValidityFamily Courts Act, 1964 was a special law barring right of appeal or revision against interim maintenance order

Constitutional petition against order under S.17-A of Family Courts Act, 1964, was maintainable only if such interim order was coram non judice, wholly or without jurisdiction or based on mala fide

Quantum of interim maintenance could not be made a ground for invoking Constitutional jurisdiction of High Court

Trial was not concluded within a period of six months as prescribed by S.12-A of Family Courts Act, 1964

High Court directed Family Court to decide suit for recovery of maintenance within a period of two months so that petitioner could be burdened with interim maintenance for two months only

Order of interim maintenance would subsequently merge into final judgment

Constitutional petition was dismissed in circumstances.

2018 MLD 1131 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 5 & 14Constitution of Pakistan, Art.199Constitutional petitionAlternate and efficacious remedyInterim orderStriking of defenceSuit for recovery of maintenance

Petitioner (husband) failed to cross-examine witnesses of plaintiff (wife) despite lapse of more than three years, therefore, Trial Court closed his right to cross examine the witnesses

Validity

Legislature specifically prohibited filing of appeal or revision against an interim order

If constitutional petition was allowed to be filed against such order, same would tantamount to defeating and diverting intent of Legislature

Petitioner had adequate remedy available to him by challenging order in question in appeal, which he could file against ultimate order / judgment if the same was passed against him

High Court declined to entertain constitutional petition as the same was hit by Art. 199(1) of the Constitution

No illegality or material irregularity existed in the order passed by Family Court calling interference in Constitutional jurisdiction

Constitutional petition was dismissed in circumstances.

2017 CLCN 26 PESHAWAR-HIGH-COURT Judicial Precedent

S. 5, SchedLimitation Act (IX of 1908), Art. 120Suit for recovery of maintenanceLimitation

Maintenance could be recovered for six years.

2017 PLD 689 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 5, 17, 17-A & 21-ACivil Procedure Code (V of 1908), O.XXXVIII, R.5Suit for recovery of maintenanceInterim maintenanceApplicability of Civil Procedure Code, 1908Scope

Law Officer had argued that since Civil Procedure Code, 1908 was not applicable as per S.17 of the Family Courts Act, 1964 but if on any matter, the provisions of the Act were silent provisions of C.P.C. were applicable

Validity

Principles of S.21-A of the Family Courts Act, 1964 were similar to the principles of O.XXXVIII, R.5, C.P.C., hence, the objective of O.XXXVIII, R.5, C.P.C. was only preventive and not punitive.

2017 PLD 689 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 5, 17-A & 21-ASuit for recovery of maintenanceInterim maintenanceRestraining order at the time of institution of suit for defendant to alienate his property

Question was as to whether provision of S.21-A of the Family Courts Act, 1964 could be invoked without any order of interim decree under S.17-A of the Act

Petitioner/defendant contended that restraining order not to alienate his property was illegal as the same was passed by Family Court at the outset of proceedings and respondent/plaintiff moved application for interim maintenance after few months

Respondent contended that restraining order was necessary to secure legal rights in the light of apprehension that petitioner might sell his property

Validity

Family Court was not justified in passing the order restraining the petitioner from alienating his property which was not subject matter of the suit because no hard circumstances existed which had made the Family Court to pass an order which otherwise amounted to attachment before judgment

Record showed that plaintiff on the first date of hearing filed application under S.21-A of the Act, on the ground that the defendant was living abroad and would sell the property, therefore, he be restrained from alienating his property

Family Court on the first date had passed status quo order that the defendant was restrained to alienate or sell the property so that expected decree be executed effectively

Such was a premature act of the plaintiff to file the application on the first day because it was against the mandate of procedure provide in the Act as the interim or final decree, had not been passed

Interim maintenance was allowable under S.17-A of the Act, and after recording of evidence and hearing the parties final decree was to be passed and when maintenance was not being paid in pending suit, then S.21-A of the Act could be invoked, if all the ingredients of S.21-A were fulfilled

Intention of the Legislature was very clear with regard to the attachment before judgment that to preserve and protect the property, which was in dispute and for the satisfaction of the decree, then interim order was to be passed; that the basic criteria given for passing restraining order of the property in dispute was for the satisfaction of the decree if considered necessary

Family Court merely on presumptions and apprehensions had assumed without any cogent and convincing evidence on record that after passing of maintenance order, the defendant would abscond out of country and decree would not be satisfied

Family Court had not followed the prescribed procedure provided in law

Power given in S.21-A of the Act was presumptive and not punitive

Jurisdiciton of the court was of an extraordinary in nature and should be exercised sparingly and strictly in accordance with the procedure prescribed by the law

Present suit related to maintenance and Family Court had misconstrued the provision of S.21-A of the Act, which could only be exercised in a suit where subject matter was that of property, if the decree (interim or final) was not satisfied by the defendant, in other words, the party, filing the suit, should have a semblance of right or title over the property

For exercising the powers under S.21-A of the Act, the criteria for the court was to see that party filing the suit had semblance of right or title over the property; compelling cause of action was to be stated by the court; previous record of the defendant was to be seen that he had entered into any agreement to sell or he was trying to further alienate his property through any other mode, like gift or exchange and whether interim maintenance was not being paid by him

Defendant, in the present case, had never refused to maintain his family and was steadily paying maintenance every month, thus complying with the interim decree which was being satisfied

Present suit was only for maintenance and relief sought was being adhered to on the form of payment of interim maintenance, so issuance of restraining order was undesirable

By merely filing a suit/application, or raising any plaint against the defendant did not constitute a right to restrain the defendant from alienating his property

Facts from which the intention of the defendant might be inferred for selling/disposing of the property or portion of the property were to be proved through satisfactory evidence that i.e. an attempt to sell property, benami transfer, rapid sale of the property, past conduct

Transaction of disposing of property must be subsequent to the suit

Mere fact that plaintiffs had claimed for maintenance allowance against the defendant and had an apprehension that the defendant would abscond because he was living abroad for earning his livelihood, was not enough to pass the impugned order

Section 21-A of Act was preventive and not punitive

Family Court had passed impugned order merely on apprehension without application of judicial mind

Impugned order was set aside

Constitutional petition was allowed accordingly.

2016 YLR 969 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.5 & Sched.Suit for recovery of maintenanceSource of income of father, proof ofFamily Court decreed the suit for maintenance of minors with ten per cent annual increaseFather took the plea that the maintenance had not been determined keeping in view his source of incomeValidityTrial Court had passed the impugned judgment and decree after detailed appreciation of the evidence brought on recordDefendant claimed to be a driver in government hospital, however, his pay slip stated that he was a Naib QasidSaid pay slip was, therefore, questionableNo infirmity or illegality in the impugned judgment and decree existedDefendant failed to point out the circumstances to warrant exercise of Constitutional jurisdiction

Constitutional petition was dismissed in circumstances.