Inam Ul Haq vs Judge Family Court etc.

O'::, Stereo.l{CJDA 38.

Judgrnent Sheet

IN TFIE LAHORE HIGI{ COURT LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.2835 of 2011

Inam-ul-Haq. ....'...Petitioner

VS

Judge Family Cour1, Lahore etc.......... '. "" 'Respondents

JUDGMENT

Date of hearing: 26.t1.2014

Petitioner by: Mr. Sana Ullah Ch. Advocate.

Respondents No.2 to 5 bY: Mr. l{aseeb Ali Quddusi, Advocate.

Through the instant petition, tlre

petitioner challenges the validity of order dated 08'12'2010 passed learned Judge Family Court, Lahore whereby in a suit filed by by against respondent No.5 for recovery of dower and maintenance the petitioner, <lrcler for interim maintenance allowance at the rate ol'Rs.1500/- ftrr each minor has been passed which was directed to be paid froln the date of institution of suit' 2.Learnedcounsellbrthepetitionercontenci;ithattheorder for interim maintenance cannot be passecl in such a manner tlrat it could take eft'ect retrospectively' Further contended tlmt as per Section l7 -A of tlle Family Courts Act', 1964' the learned

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Judge Family Court is not competent to award interim maintenanae 1br the period prior to the date of order. ln this regard' he relied on case reported as "Zafhr others." (PLD 2004 Lahore 349).

3.On the other hand, learned counsel for the contesting respondent contended that the learned Judge Family Court was fully equipped witlt the powers to pass an order directing the petitionel io pay interim maintenance from the date of filing of the suit and in support of, his contention, he placed reliance on case reported as "Muhammad lrfan.vs.Judge,Famibt Court and 2 orhers." (2003 CLC 585). He maintained that the order impugned in the instant petition is an interlocutory order against which no writ is maintainable.

4.I have heard the learned counsel tbr the parties and perused the record.

5.Before dilating upon the matter in issue, it would be advantageous to read Section l7-A of the Family Courts Act, 1964 which is reproduced as under:- "17-A. Interim order for maintenance'---At any stage of p.o"""aingt in a suit for maintenance, the Family Court may ous u,., interim order lor maintenance, wlrereunder the payment shall be made by the lourteenth of each month' iailing which the Court may strike off the defence of the defendant and decree the suit."

6.The above provision of law clearly postulates that the learned Judge Fan-rily Court is vested with the powers to pass an or<ler for interim maintenance at any stage of the proceedings in a suit for maintenance. section 17-A of west Pakistan Farnily courts Act, 1964 was brought on the statue by way of Ordinance No'LV

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of 2002 for the first tirne by amending the Act No.XXXV of 1964 whereby the F'amily Courts have been equipped with the powers to pass an order for interim maintenance during pendency of the suit' Similarly, legislature through the.same ordinance also introduced Scction 12-A in the Act No.XXXV of 1964, which prescribes the period of six months for the completion of proceedings belbre the Family Court from the date of its institution. The said provision of law also provides that where a case is not disposed of within six months, either party shall have a right to make an application to the Fligh Court for necessary direction as the High Cotrr-t may deem fit' Both the provisions of law are interlinked and interconnected in their terms and mandate. On the one hand, the F'amily Court has been equipped with the rnandate to pass an interim order for payment of maintenance and at the same time, it has been made incumbent for the court to dispose o1'the case pending before it withinaperiodofsixmonthsfromthedaleofitsinstitution.lhe joint reading ofthe above referred provisions oflaw postulates that an order passed under section l7-A of the Act ibid for payment of interim maintenance would, at the most, be remained operative for a period of six months as allocated in Section l2-A of the Act ibid' It is further held that use of words "at any stage of proceedings" does not mean that the F'amily court in its discretion can pass the said order after institution ofthe suit till the decision ofthe case at any time but keeping in view the intent of legislature, these words clearly signifies that order for interim maintenance should be passed by the learned Judge Family court at the earliest upon instituting the suit for protecting the rights of the minors during

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pendency of the suit. So, the Family Courts while exercising these powers arc supposed to pass an order for interim maintenance as early as possible after institution of the suit and upon receipt of the written statement. The contention of learned counsel that interim order for maintenance could only be passed for future period and it could not be given a retrospective effect under the law, seems to be mis-conceived. The learned Judge Family Court has fixed the interim maintenance from the date of institution of suit whiclr in nowhere can be termed as award of past maintenance' The judgment referred by the learned counsel for the petitioner reported as" ." (PLD 2004 Lahore 239) in my humble view, did not carry the proper interpretation of Section l7-A of the Act ibid, especially with regard to the issue in hand. I am inclined to follow the latter view in which well-reasoned principle is laid down in this regard' ln the case of "

(2003 CLC 585) while dealing with the similar proposition, this Court held in Para-3 as under:-

"The learned Judge Family Court granted the interint maintenance allowance only from the date of institution of the suit, which by any stretch of imagination could not be termed as the past maintenance' The proceedings of a suit take effect from its institution and as such any order, including the one for maintenance allowance' given effect from the date of institution, is an order for interim period only. The retrospectively could be relatable to the period preceding the date of institution and not the period starting with the commencement of the suit." or-

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7.Thus, in my humble view, while agreeing with the principle laid down in the above referred citation, order fixing the interim maintenance from the date of institution of the suit is not violative of law and the petition to this extent is mis-conceived'

8.Now coming to the question of effectiveness of order passed under section l7-A of the Act ibid. This Court is of the view that maximum life of an order passed for interim maintenance is six months as per mandate of Section l2-A of the Act ibid' This Court has already held a thread bearing discussion on the implication of Section l7-A and l2-A of the West Pakistan Family Courts Act, 1964 in case of " Court. Lahore and others.'(PLD 2013 Lahore 64)' The relevant and necessary portion from the above referred reported judgment is

reproduced as under:-

"By joint reading of Section l7-A and l2-A of the West palCstan Family Courts Act 1964 (hereinafter to be referred as the Act), what comes out is that when the Family Court was made competent to pass an interim order for payment of maintenance, it was at the same time. made incumbent for the same Court to dispose of the case pending before it within a period of six months from the date of institution, meaning thereby, that the order passed under section l7-A of the Act for payment of intelim maintenance would, at the most, be effective for a period of six months which time has been allocated by virtue ofSection l2-A ofthe Act for final disposal ofa lis pending before a Judge Family Court and, when the rn"ii.o- age of an interim order passed under section l7-A of the Act expires, the proceedings, if continued before the Family Court, the same would be considered violative to the provisions of Section l2-A of the Act and this Court by virtue of proviso attached to Section l2-A v2.

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of the Act has been made competent to take notice of pendency of a family suit beyond the period of six months and to pass any direction as deem fit."

g. Bare reading of the above refened portion of the judgment clearly manifest that the Family Court, while passing the order for interim maintenance under Section l7-A of the Act ibid shall keep in mind the bounden duty imposed under Section l2-A of the Act ibid for final disposal of the lis within the prescribed period of six months in order to avoid burdening any of the parties before it'

10.Record reveals that the suit was filed before the Family Court on 04.09.2009 and the learned Judge Family Court passed an order for interim maintenance on 08.12.2010. The suit is still awaiting its fate which is in violation of the mandatory provision of Seclion l2-A of the Act ibid. In this view of the matter, learned Judge Family Court is directed to conduct the proceedings in the suit in hand on day-to-day basis and conclude the same by or before 24't' of December, 2014, positively without fail' The learned Judge Family Court is also directed to submit a compliance report tluough the Deputy Registrar (Judicial) of this Court for perusal. Flowever, in the meanwhile, the petitioner shall deposit the interim maintenance as was fixed by the learned Judge Family Court till decision of the suit. Before parting with this judgment, I deem it appropriate to observe that the Family Courts in future shall endeavour and strive to take all necessary steps for achieving the objects of the provisions of Section l7-A as well as Section l2-A of the Act ibid in the proceedings before them and no unnecessary delay shall be caused in ccnclusion of

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the proceedings before them. With these observations, instant petition is disposed of'

Zzzy' (MIRZA VIQAS RAUr)

JUDGE

Aonroved for rePortine

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