Enhancement of maintenance

2022 MLD 1762 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.5, Sched.Constitution of Pakistan, Arts.9 & 14Suit for maintenanceEnhancement of maintenanceGrounds and scope

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.

2017 CLC 487 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 5, Sched & S.13Suit for recovery of maintenance allowanceGrant of maintenance allowance enhancement/alteration in monthly allowance by minorPowers of Family CourtScopeProcedureEx parte decreeExecution petition, withdrawal ofFresh suit on same cause of actionMaintainabilityEnhancement of maintenanceProcedure

Plaintiffs filed suit for recovery of maintenance allowance which was decreed ex parte and execution petition was moved but same was withdrawn

Plaintiffs again instituted another suit for recovery of maintenance allowance which was ex parte decreed against which defendant moved an application for setting aside the said decree which was dismissed concurrently

Validity

Plaintiffs in presence of previous decree were estopped from filing subsequent suit on the basis of same cause of action

Decree passed in the previous suit had attained finality

Previous ex parte decree was issued in favour of minors and also their mother who was not party in the present round of litigation

Mother withdrew the execution petition on the ground that her grievance had been redressed out of the Court and execution proceedings were disposed of

Only mother was barred from claiming the maintenance as she had already withdrawn from the proceedings

Compromise to the extent of minors was not valid and withdrawal from the execution of decree was not effected under the law which could only be done with the permission of the Court

Court was bound to watch the interest of minors

Decree passed in the previous suit was effective and operative only to the extent of minors

Family Court had rightly declared that minors were entitled to maintenance allowance in the light of previous decree

Fresh suit on the same cause of action was not maintainable

Previous decree was enforceable and minors could approach the Family Court for payment of maintenance allowance accordingly

Family Court was directed by the Supreme Court to enforce the decree passed in the previous suit to the extent of minors without any further delay

No limit existed on the Family Court to fix or determine the rate of maintenance allowance

Family Court could grant appropriate maintenance allowance according to facts and demand of justice in each case

Maintenance was continuous process and the person entitled to be maintained had right to approach the Court for adequate maintenance allowance

Family Court was vested with exclusive jurisdiction to entertain and adjudicate upon the matters specified in the Schedule

If maintenance allowance granted by the Family Court was insufficient and inadequate then institution of fresh suit was not necessary rather Family Court might entertain application for alteration in the rate of maintenance allowance

Minors, in the present case, could apply to Family Court for enhancement/alteration in per month rate of maintenance allowance however said application would not bar the execution of decree already granted for maintenance allowance

Appeal was disposed of accordingly.