Ghulam Mustafa Through SPA Faqir Muhammad Vs Anila Shahzadi etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Case No. W.P. No.67276/2021

Ghulam Mustafa Versus Anila Shahzadi, etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of parties of proceeding Proceeding counsel, where necessary 21.12.2021 Malik Sir Buland Naich, Advocate for petitioner.

Raja Asif Ali Khan, Advocate for respondents No.1 to 3.

This Constitutional petition assails concurrent orders. Learned executing court vide order of 23.04.2021, allowed application filed by the respondent No.1 for seeking benefit of sub- section (3) of Section 17-A of Family Courts Act, 1964 (“the Act, 1964”), and 10% annual increment was granted, to be read as part of the judgment and decree dated 30.01.2012. Appeal filed by the petitioner was dismissed by the appellate court vide order of 01.09.2021.

2.Learned counsel for petitioner submits that retrospective effect cannot be given to sub- section (3) of section 17-A of the Act,1964, which was added through Family Courts Amendment Act, 2015 (XI of 2015) [Punjab Amendment]. Adds that rights created under the decree cannot be abridged or annulled in wake of change of law when decree has attained finality.

Submits that courts travelled behind the decree and misconstrued the scope and effect of Punjab Amendment, which manifest illegal exercise of jurisdiction.

3.Conversely, learned counsel appearing for respondents No.1 to 3 submits that Punjab Amendment was beneficial in nature, which must be applied retrospectively. Further submits that grant of annual increment through statutory instrument was intended to facilitate periodical appreciation to the quantum of maintenance allowances with respect to cases decided before the Punjab Amendment and to save parties from the hassle of filing applications for seeking enhancement in the quantum of maintenance allowance. Learned counsel emphasized that orders impugned are legal and manifest true and purposive interpretation of the law.

4.Controversy calls for interpretation of sub- section (3) of section 17-A of Family Courts Act 1964 – post Punjab Amendment. It is expedient to reproduce sub-section (3) of section 17-A, ibid, hereunder:-

“3. If the Family Court does not prescribe the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year”.

5.Before dilating upon the proposition of law, proposed for determination, it is important to iterate text of the decree, passed on 30.01.2012, which reads as:-

“It is order that suit of plaintiffs is partially decreed in favour of plaintiffs and against the defendant. Plaintiff No-1 is not entitled to get any maintenance allowance from defendant without performing marital obligations. Plaintiff No.2 and 3 are entitled to get Rs.5000/- per month per head w.e.f six months prior to this suit till their marriages. There is no annual increment. Plaintiff No.1 is entitled to get Rs.10,000/- as delivery charges of plaintiff No.3 only. There is no order as to cost”. [Emphasis supplied]

6.Court has disallowed annual increment while passing the decree, which decree has attained finality. Now the question is whether the rights extended under the decree were intended to be annulled / cancelled by virtue of Punjab Amendment. A bare perusal of sub-section (3) of section 17-A does not manifest any such intention. Legislature has not intended to make it applicable retrospectively– extending opportunity to re-open decrees passed and final. There is no cavil that substantive rights, accrued and vested, cannot be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, is retrospective in operation. No such intent is evident or could be gathered from perusal of sub-section (3) of section 17-A, which cannot be stretched to disturb the rights created and obligations

prescribed in terms of the decree. Reference is made to the dictum in the case of Adnan Afzal V.

Capt. Sher Afzal (PLD 1969 Supreme Court 187). Sub-section (3) of Section 17-A cannot be construed to have had annulled or substantially altered the judgment and decree. Courts below have failed to appreciate principle of finality of decrees and misconstrued sub-section (3) of section 17-A of Family Courts Act 1964, in the context of the facts of this case.

7.In view of aforesaid, this constitutional petition is allowed, orders impugned are declared illegal and of no legal effect. It is, however, observed that respondents No.1 to 3 shall be at liberty to file application seeking enhancement of maintenance allowance, and may seek benefit of sub-section (3) of Section 17-A of the Act, 1964, provided court of competent jurisdiction has enhanced quantum of maintenance allowance through a judicial decree. No prejudice shall be caused to the obligations under the terms of judgment and decree dated 30.01.2012, till maintenance allowance is enhanced through a judicial decree. No order as to the costs.

(ASIM HAFEEZ)

JUDGE

Announced in open Court on this 31st day of December-2021.

(ASIM HAFEEZ)

JUDGE

Imran/*

Approved for Reporting.