IN THE HIGH COURT OF SINDH, KARACHI
C.P.No.S-1352 of 2014
Tahir Ayub Khan
V/s.
Ms. Alya Anwar and another
Present: Mrs. Justice Ashraf Jahan.
Date of Hearing : 22.12.2014
Petitioner : Through Mr. Abdul Haleem Siddiqui,
Advocate.
Respondents : Through Syed Danish Ghazi, Advocate
ORDER
MRS. ASHRAF JAHAN, J.:- Through the instant petition, petitioner Tahir Ayub Khan has challenged the impugned order dated 20.09.2014, passed by VIIth Family Judge, Malir, Karachi, (hereinafter referred to as the “Family Judge”), whereby the interim maintenance allowance of respondents No.1 & 2 was fixed at the rate of Rs.10,000/- and Rs.25,800/- per month respectively.
2. As per the relevant facts the respondent No.1 had filed Family Suit No.238/2014 for the recovery of maintenance and dower before the learned Family Judge. The marriage between the present petitioner and respondent No.1 was solemnized on 20.07.2007 with prompt dower of 30 Tolas gold, which is said to be still unpaid despite several demands. Out of this wedlock master Mohammad Arham was born on 13.08.2008. The relationship between the spouses gradually became strained and as per case of respondent No.1, under the compelling circumstances she started living in her official accommodation, wherein the present Petitioner also stayed with her for some time, but never paid any maintenance to respondents No.1 and 2, having no other option she filed the present suit with the following prayers:
(a). prompt dower of plaintiff No.2 in the shape of 30 tolas of gold or the cost thereof at the prevalent rate:
(b). Rs.50,000/- being hospital charges for delivery and Rs.30,000/- being other medical expenses for plaintiffs.
(c). Rs.2,00,000/- being expenses incurred on the Bismillah ceremony of plaintiff No.2.
(d). Rs.47,500/- being school fee of plaintiff No.1 since January 2013 till July 2014 @ Rs.2,500/- per month and from August 2014 onwards @ Rs.12,000/- per month.
(e). Rs.3500/- being the computer fee and Rs.2000/- bi-annual charges of the school.
(f). Rs.12,000/- paid towards Swimming coaching for plaintiff No.1.
(g). Rs.80,700/- being expenses incurred on School Admission of plaintiff No.1.
(h). Maintenance of plaintiff No.1. @ Rs.36,750/- per month w.e.f. January 2013 up-to-date and in future.
(i). Maintenance of plaintiff No.1 @ Rs.30,000/- w.e.f. January 2013 up-to-date and in future.
(j). Other basic expenses of plaintiffs @ Rs.30,500/- w.e.f. January, 2013 up-to-date and in future.
(k). Cost of the Suit.
(l). Any other relief, which this Honourbale Court deems fit in the circumstances of the case.
The Petitioner filed his written statement, admitting the marriage between the parties, birth of respondent No.2 and denying other allegations asserted by respondent No.1. During the pendency of the Family Suit, under section 17-A of the West Pakistan Family Court Act, 1964 (hereinafter referred to as the Act, 1964), learned Family Judge passed the order with regard to the interim maintenance of the minor and respondent No.1., at the rate of Rs.25,800/- and Rs.10,000/- per month respectively. Being aggrieved with the above order, the Petitioner has challenged it in the instant constitutional petition with the prayer that the impugned order may be set aside.
3. I have heard the learned counsel for the parties and have perused the case record. It is contended by learned counsel for the Petitioner that the quantum of interim maintenance allowance fixed by the Family Judge is exorbitant and beyond the means of the Petitioner, as he is a police inspector and his monthly income is Rs.50,000/- only, whereas learned Family Judge has allowed the interim maintenance to the respondents in the sum of Rs.25,800/- plus Rs.10,000/- equivalent to Rs.35,800/-, which is not only excessive, but is also impossible for the Petitioner to pay, according to him the impugned order is passed in the prospect of the excessive claim of maintenance, while it ought to have been passed looking to the financial status of the father/husband and not as per the life style of Respondent No.1. It is further contended that besides his own expenses the Petitioner has to look after large family; therefore, the amount of interim maintenance may be reduced. During the course of arguments, he showed his willingness to pay an amount of Rs.15,000/- towards the maintenance of minor child, however for the maintenance of respondent No.1 it is argued that since she is living away from the petitioner at her own choice, therefore, she is not entitled for any maintenance. Per learned counsel, respondent No.1 herself is a judicial officer, therefore, family suit is filed only to pressurize the Petitioner, therefore, such unjustified order may be set aside in the circumstances of the present case. In support of his contentions, learned counsel for the Petitioner has relied upon the case of Zafar Hussain v/s. Begum Farzana Nazli and others (PLD 2004 Lahore 349), Messers Metropole Cinema (Pvt) Limited through Managing Director and others v/s. Government of Punjab through Secretary, Excise and Taxation Department, Lahore and 4 others (PLD 2004 Lahore 351), Mr. Mohammad Jamil Asghar v/s. The Improvement Trust, Rawalpindi (PLD 1965 SC 698), Nawab and 3 others v/s. The State (PLD 1965 SC 522) and Suleman and 4 others v/s. Additional Sessions Judge, Nankana Sahib and 3 others (PLJ 2007 Lahore 1173).
4. Conversely learned counsel for the respondents has submitted that the present petition is not maintainable as the interim order cannot be challenged in constitutional petition as provided under section 14(3) of the Act, 1964, in addition to this, he submitted that till today the Petitioner has failed to maintain both the respondents, which under the law is his utmost responsibility, therefore, the petition may be dismissed in limine. In support of his contentions he has relied upon the cases of Syed Mohsin Shah v/s. Mst. Mommal Aftab and another (2013 MLD 1269), Gul Dad Khan and another v/s. Ismail Khan and 3 others (2013 MLD 1273), Abrar Hussain v/s. Mehwish Rana and 3 others (PLD 2012 Lahore 420), Abbas Ahmad v/s. Mst. Ayesha Aziz and 3 others (2009 CLC 980) and Messers Young Men’s Christian Association v/s. Government of Sindh, through Secretary, Social Welfare and Women Development Department, Karachi and 3 others (2009 CLC 986).
5. I have considered the argument advanced before me, perused the case record, gone through the case laws cited by the counsel for the parties and other relevant provisions of law. There is no cavil with the proposition that a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable against an interim order, but only if it is void ab-initio, fanciful, without jurisdiction or if it had attained the status of final order. Reference in this context may be made to the case of Suleman and 4 others v/s. Additional Sessions Judge, Nankana Sahib and 3 others (PLJ 2007 Lahore 1173) and Mohammad Hassan v/s. Judge Family Court Bhalwal and another (2008 YLR 1826) . However, every interim order cannot be challenged in writ jurisdiction, specially if the same does not fall within the above mentioned categories of interim orders. Reverting to the present petition it will suffice to say that the impugned order allowing the interim maintenance has been passed under section 17-A of the Act, 1964, added vide Family Court (Amendment) Act, 2008 for the sake of convenience, the same is reproduced as under:
“17-A. Interim order for maintenance.-At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit.”
The perusal of above provision of law depicts that a Family Court at any stage of the proceedings in a case pending before it can pass an interim order for maintenance, whereunder payment is to be made by 14th of each calendar month. Admittedly it is not a final order, but passed only to facilitate the wife and minor to meet their day to day life expenses, till the final adjudication of the family suit.
6. In the present case the maintainability of this petition has been challenged and first of all it is to be seen as to whether such type of interim order could be challenged in constitutional petition or not. In this regard section 14(3) of the Act, 1964 is relevant and the same is reproduced as under:
“14. Appeal.- [(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a family Court shall be appealable---
a). to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge.]
b). [to the District Court, in any other case.]
2. No appeal shall lie from a decree passed by a Family Court--
a). for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section (2) of the Dissolution of Muslim Marriage Act, 1939.
b). for dower [or dowry] not exceeding rupees [thirty thousand].
c). for maintenance of rupees (one thousand) or less per month.
(3). No appeal or revision shall be against an interim order passed by a Family Court.
(4). The appellate Court referred to in sub-section (1) shall dispose of the appeal within a period of four months.”
The perusal of above provision of law clearly reveals that the legislature has specifically prohibited filing of appeal against an interim order. It will be relevant to mention that during the course of arguments learned counsel for the Petitioner stated that he is already paying maintenance to the child and is ready to pay up to Rs.15,000/- per month for the minor. Upon the query made by the Court to the learned counsel as to how much allowance presently Petitioner is paying towards the maintenance, he failed to give any specific reply and only stated that whenever the Petitioner meets with minor Mohammad Arham, he used to give him some maintenance.
7. Admittedly in the present case, Family Suit is still pending and during its pendency, the learned Family Court has passed the impugned order, which is undoubtedly for all intents and purposes an interim order with the scope of section 14 (ibid). The legislature has specifically prohibited the filing of an appeal against an interim order and if the constitutional petition is allowed to be filed against such order, it would tantamount to defeating the very intent of the legislature. Reference in this regard is made to the case of Saghir Ahmed Naqvi v/s. Province of Sindh through Chief Secretary, S&GAD, Karachi and others (1996 SCMR 1165).
8. As discussed earlier, the impugned order cannot be termed as void, ab-initio, fanciful or without jurisdiction merely on the ground that per claim of the Petitioner, it is on the higher side. Further it has not yet attained the status of a final order. The quantum of interim maintenance allowance prima-facie seems to be fixed, inter-alia, looking to the status of the parties and the expenses of the minor. As per Petitioner it is exorbitant as being police inspector his salary is only Rs.50,000/-. This assertion coupled with the fact as to whether he has some other source of income or not, can only be ascertained after recording of evidence of both the parties. Moreover, the Petitioner will be having an adequate remedy available with him by challenging the final order/judgment in the case, if the same is passed against him.
9. No doubt, the Family Courts have no unfettered or unbridled powers to fix the interim maintenance at its discretion as they are required to adopt a pragmatic, rational and judicial approach, broadly keeping in mind the social status of the parties, the earnings of the Petitioner/father, his capacity to pay and the requirements of the minor. It is noteworthy to mention here that the impugned order is interim in nature, which is subject to final adjudication after recording of evidence of both the parties; therefore, at this stage it cannot be challenged under the constitutional jurisdiction.
10. Before parting with this judgment, it is observed that the case law cited by learned counsel for the Petitioner are distinguishable and not applicable to the facts and circumstances of the present case.
11. Thus, in view of above legal position, the instant petition is without any substance; it is hereby dismissed with no order as to costs.
Judge
Announced on 27.01.2015.