Muhammad Yaqboob vs Mst.Kaniz Fatima etc.

F'onm No.I{CJD/C-121

OR.DER. SFIEET

LAHORE I{IGT{ CO{JRT, LAHORE

JUDICIAL DEP,{R,TMENT

W.F.No.29938 of 2014

Muhammad YaqLlb VS Mst. Kaneez Fatirna etc.

S.No. of order/ ()rtler with signature ofJudge and that of parties or counsel, 13.1n.2014 R.aja Faisal Hayat Janjua, Advocate for the petitioner.

The instant petition is directed against the order dated 29.10.2014 passed by the learned Judge Family Court, Khushab whereby order for interim maintenance allowance was passed.

2.The fucts in brief necessary for the disposal of instant petition are thai respondents No.1 to 4 fileci a suit fbr recovery of maintenance allowance and dowry articles against the petitioner before the learned .Iudge Famiiy Court, I(hushab. The petitioner entered his appearance and submitted written statement whereby the assertions contained in the plaint were controverted. During proceedings, the learned trial Court vide order dated 29.10.2014 proceeded to fix the interim maintenance to the following effect:-

"Divorce between the parties has alreedy been effected. So, efforls for pre-trial recorrciliatio;:i ended in smoke. Affidavit has been filed by defenciant. Plaintiff stated that minor plaintiff No.3 Muhammad Aaqib is in custody of defendant. So, he is not entitled any malnlenan0e allowance. Adrnittediy, minor Mst. Saira Batool and Abdul Aziz are daughter and son <if the defendant. So" bq is legaliy bound fo pay the

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maintenance allowance @ Rs.1500/- each per month (in toto Rs.3000/-) before the l0th of every month till the disposal of this case."

2.Learned counsel for the petitioner, while challenging the vires ofimpugned order, contends that the minors are in his custody and there was no occasion for the learned trial Court to fix the interim maintenance of the minors through the impugned order. In order to substantiate his argurnents, the learned counsel has relied on an affidavii which is available on file wherein he undertook to provide all the necessary expenses for the education of minors. Further adds that while passing the impugned order, the learned trial Court has failed to apply its judicious mind and exceeded its jurisdiction and that the order has been passed in colorful exercise of the jurisdiction vested upon the learned trial Court.

3.I have heard the learned counsel for the petitioner at some length and also gone through the record with his assistance.

4.It is evident that respondent No.l while preferring her suit for the recovery of maintenance allowance and dowry articles has categorically mentioned in para-3 of the plaint that respondents No.2 to 4 (minors) are in her custody. However, while submitting written statement, the petitioner in response to para-3 of the plaint controverted this factual aspect and asserted that the minors are actually in his custody and he is maintaining them. This clearly shows that there is serious contest between the parties about the factum ofphysical custody

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of the minors and same cannot be resolved without framing of issues and recording of evidence. So far as the authenticity of the affidavit about which the learned counsel has made reference during arguments, is concerned, that has been executed by the petitioner on 28.10.2014 which has no evidentiary value at this stage unless proved through mode prescribed under the law.

5.Before dilating upon the matter in issue, it would be advantageous to go through the relevant provision which mandates the learned trial Court to pass an order for interim maintenance atrlowance and for the said purpose, section 17-A of the Famiiy Courts Act, 1964 reads as under:-

"17:A. Interirn order f'or 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."

5.Bare reading of the above referred provision of law clearly mandates the Family Court to pass an order for interim maintenance during the pendency of lis. The protecting the rights of both the parties has inserted section 12-A of the Act ibid which is repraduced for ready reference as under:-

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period.---A Family Court shall dispose of a case, including a suit for dissolution of marriage, within a period of six months from the date of institution; Frovided that where a case is not disposed of within six months either party shall have a right to make an application to the High Court for necessary direction as the Hieh Court mav deem fit."

7.Both the above referred provisions are interlinked, so while making order under section l7-A of the Act ibid, the court must be having legal conscious about the period specified by section 12-A of the Act ibid for the disposal of the case. Furthermore, by virtue of section 12-A of the Act ibid, it is provided that where a case is not disposed of within six months, either party shall have a right to make an application to the High Court for necessary direction as the High Court may deem fit.

8.This Court has already held a thread bearing discussion about implication of both the above referred provisions of law in the case reported as "Muhammad Shahbaz Khalid.vs. Judse Family Court. Lahore and others" (PLD 2013 Lahore 64). The relevant discussion at Page 67 inPara 7 of the judgment supra is reproduced below:- uBy joint rcading of sections 17-A und 12-'4 of the West Fakistsn Family Courts Act, 1964 (hereinafter to be referred as the Act), what comes out is thut when tke Family Court was made competent to pass an interim order for payment of maintenance, it was ut the sarme lime, made incumbent for the same Court to dispose of the c&se pending before it within a period of six months from the date of institution, meaning 'a'

W'F'No'29938 of 2014 -{*r!,.,r:r section tr7-A tkereby, that the otder passed wnder of thi ,Act fot payment of interim maintensnce pe-riod of six wauld, at the most, be ffictive for a virtae of wwwths, which time haibeen ullocated by of a lis sictiora' 12-A of the Act fot iinal disposal pending befori u 'Iwdge family Court snd' when the maximum &ge ol an intetim order pussed under section t7''4 of the Act expires' the Court' proceedings, if continued befote the Family sami woutd be considered violative to the "the provisions of, section t2-A af the Act und this

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Vourt by viitue of, ptoviso attached to section notice ,j in,i", hus biei made competent to take of 71 pnrdnn"y of a family suit-beyond the,period iix'months and to"poss any direction as deemi|'t"" g. above' it is So, in the light of principle laid down section 17-A of the established that order passed under of six Act ibid can continue for a maximum period by the Family months and if proceedings are not finalized is competent to Court within prescribed period, this Court pass any direction as it may deem fit'

10.The order fixing the interim maintenance allowance under section 17-A of the Act ibid is an interlocutory

order, which will eventually merged in the final decree

passed by the Family Court after recording of evidence

from both the sides' 1 1. Furthermore, by virtue of section 14 of the Act ibid' lie only against a it is provided in the Act that appeal shall finaldecisionordecreepassedbytheFamilyCourtand interim order passed no appeal or revision shall lie against has specifically by the Family Court' Since the legislature an interim or placed a bar in filing of appeal against orders in exercise interlocutory order, interference in such

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of writ jurisdiction would tantamount to defeat and divert the intent of legislature. By holding that it does not mean

that this bar is of an absolute nature and this Court in no

circumstance can invoke its jurisdiction under Article of the Constitution of Islamic Republic of Pakistan' 1973 against any form of interim or interlocutory order' The

only distinction is that where interim order is void' ab-initio, without jurisdiction, corum non-judice or has attained the status of a final order, no such bar can be

pleaded with regard to exercise of jurisdiction as contemplated under Anicle 199 of the Constitution of Islamic Republic of Fakistan, 1973' As already held that there is serious dispute about the factum of custody of minors, which factum can only be resolved after recording of evidence, this Court cannot substitute its findings on the basis of assumptions to grant premlum or the same to either of the party. This Court in case reported as "Syed and another" (PLD 1982 Lahore 281) while touching the issue in hand has laid down the principle' The relevant extract frorn the same at Page 283 Para 5 is reproduced as under:- "Now, I advert to the plea of learned counsel for the petitioner thut since the orders impugned heriin are of far rcuching consequences they can be challenged by means of a Constitutionul petition. .,Assuming for the sake of arguwent that -these orders would have lot of beating on the fate of the case, of the whole gamut of dispute between the parties. Final decision on the suit would be op"i to appeal by virtue of section 14 of the said Ad and, therefore, if the petitioner fails before the /'-Ve'

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learned Family Court, he will be able to assail, before the Appellate Court, the orders now being challenged by him. Thus, he has a remedy qua the orders in question although he witt hsve to wait for some time to kave recourse to that remedy if at all there arises a need for his so doing. He wilt not hsve to worry ubout those orders ,f the respondent's suit is dismissed by the learned Family Court If orders like those under challenge are allowed to be taken exception to in writ jurisdiction, it will not be possible to achieve the object for which the law embodied in the said Act was framed because writ petitions relating to such wowld obviously consume a lot of time and that would result in inordinute delav in the Jinalization of matrimonial disputes,,'

12.In view of above, it is held that normally writ jurisdiction is not exercised against the interim or interlocutory orders which have been passed as per mandate of the relevant law and interference with such orders in exercise of writ jurisdiction cannot be made in an omnibus fashion to thwart the ends ofjustice.

13.The nutshell of the above discussion is that the order impugned herein has been passed as per mandate of section l7-A of the Act ibid calling no interference in exercise of writ jurisdiction. This being so, instant petition is dismissed in limine with no order as to costs.

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(MIRZA VIQAS RAUF)

JUDGE

Approved for reporting

--?-'2'2'?T'1)-./-

JUDGE

Rans Yamin*