Mehrab Khan Vs Mst. Dawrana etc.

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A.

PESHA R HIGH COURT, BANNU BENCH.

FORM OF ORDER SHEET

Gourt of..........

Case No...... .......of...

Date of Order of Order or other of Judge (s) Proceedings

17.4.2025 W.P No.193-B/2025.

Present: Mr. Asghar Ali Khan Daim Khel, Advocate, for the petitioner.

MIIHAMMAD TARIO AFRIDI. J.- Through this writ petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following relief:

"a) To declare the impugned order dated 07.11.2024 passed by the Judge Family Court in family execution petition No.6/10 Nim of 2024 dated 16.3.2024 wherein maintenance of minors2 & 3 has been enhanced from Rs.1500/- to 10000/- per month with annual increase @ of l0% from the 07 -ll-2024 is illegal, unconstitutional, without lawful authority and ofno legal effect.

b) The respondents/decree-holders may kindly be restrained not to act upon the impugned order of the respondent No.2.

c) Any other relief, deem appropriate, by this Hon'ble Court, may kindly be also granted."

2.Brief facts of the case are that the respondent# decree-holders had instituted a Family Suit No.167lFC of 2008 for recovery of dower and maintenance allowance, which was decreed by the learned Judge Family Court vide

judgment dated 27.06.2011. The Court decreed the future maintenance allowance of Rs.1,500/- per month for each minor with a 20Yo anrual increase, until the male child reaches majority andthe female child gets ma:ried. Appeals were preferred by both parties before the learned Additional District Judge-III, Bannu, who dismissed both the appeals vide judgment dated 25.10.2011, modiffing the decree making wife's maintenance contingent upon her conjugal rights. The rest of the decree was maintained.

3.Subsequently, three writ petitions Nos. 43-812012, 250-812010 and 437-Bl20l2 were filed against the said against the said judgment and decree and were disposed of by this Court vide consolidated judgment dated 02.03.2016, 4 in the light of Iqrar Nama (Ex.PC). Thereafter, an execution petition was filed on 15.01 .2019 by the decree-holders.

During pendency of the execution, ofl 27.07.2024, respondents No.2 and 3 moved an application seeking increase in maintenance allowance on the ground of rising educational expenses and inflation. It was also asserted in the application that the judgment-debtor/father with a 6,000 Dirhams monthly increase in Dubai had not paid maintenance till. date. The leamed Family Court, upon hearing the parties, allowed the said application and enhanced the maintenance allowance to Rs.10,000/- per

month with l0% annual increase, which has been challenged through the instant petition.

4.Arguments of learned counsel for petitioner heard in motion and perused with available record with his able assistance.

5.The pivotal question before this Court is whether the Family Court had jurisdiction to enhance maintenance during execution proceedings without requiring a separate suit. This point is no longer res-integra. The Hon'ble Supreme Court of Pakistan in the case of Lt. Col. Nasir AlzD has clearly held:

"Family Court had exclusive jurisdiction 4 relating to maintenance allowance and the matters connected therewith. Once a decree by the Family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the Family Court may entertain any such application (under S.151, C.P.C.) and if necessary make alteration in the rate of maintenance allowance."

Similarly, in the case titled Arbab Mir Muhammad v.

Mst.Iram lltimas and otherc (1999 CLC 1668t. it was held:

"After hearing the arguments and having perused the evidence, we tend to agree with the submission made by the learned counsel for the respondents that there is

no bar in filing fresh application for the enhancement of future maintenance because the rate that was fixed the year 1986 is bound to be changed due to rate of inflation and the requirements of children. The two Courts below who had jurisdiction over the matter, considering the evidence recorded by the trial Court have come to a finding of fact and anY such finding is not amenable to our writ jurisdiction."

6.Therefore, once a decree has been passed for maintenance, it is within the competence of the Family Court to consider an application for increasing maintenance of minors, especially when circumstances change such as inflation orrising expenses foreducation, food and clothing.

The objection raised by the petitioner that the impugned order is illegal or without jurisdiction is unfounded due to a a binding precedent set by the Hon'ble Supreme Court. The impugned enhancement order does not breach/violate any constitutional or legal provision and fall within the exclusive domain of the Family Court.

7.The question is whether a constitutional petition can proceed against a family Court order without first exhausting the statutory appeal remedy under section 14 of the Family Court Act, 1964. Section 13(4) of the Family Court Act, empower family courts to execute their decrees.

Section 13 of the Family Court Act,l964 reads as:

"13. Enforcement of decrees.- (1) The Family Court shall pass a decree in such form and in such millner as may be

t* prescribed, and shall enter its particulars in the prescribed register.

(2)lt any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment [or] the delivery of property, as the case may be, in the aforesaid register.

(3)Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court, [not exceeding thirty days] the same shall, if the Court so directs be recovered as €rrrears of land revenue, and on recovery shall be paid to the decree-holder.

(a)The decree shall be executed by the Court, passing it or by such other Civil Court as the District Judge ndy, by special or general order, direct.

(5)A Family Court ffi&y, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such

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installments as it deems fit."

Under section 13 ibid, the order in question made during execution proceedings is indeed an order of the Family Court. Section 14 of the Family Court Act, 1964 outlines the proper recourse, which reads as under:

"1a. Anpeals.- [(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; and

(b)to the District Court, in any other case.]

(2)No appeal shall lie from a decree passed by Family Court-

(a)for dissolution of maniage, except in the case of dissolution for reasons in clause of item of

section 2 of the Dissolution of Muslim Marriages Act, 1939;

(b)for dower or dowry not exceeding rupees thirty thousand;

(c)formaintenance ofrupees one thousand or less per month."

Section 14 of the Family Court Act, 1964 allows appeal from decision or decrees, with exceptions listed in its sub- section 2. Since the impugned order does not fall under the exceptions in section l4(2) it is appealable. However, the petitioner bypassed the statutory appeal process and filed this constitutional petition which is not maintainable.

9.In the present case, no illegalrty or jurisdictional defect has been pointed out in the impugned order passed by the learned trial Court. The petitioner has not shown valid grounds for this Court to interfere under its constitutional jurisdiction. In view of the foregoing discussion, this writ petition is dismissed inlimine on merits and jurisdictional grounds.

Announced

Ihsan -

JUDGE.

TUDGE.

(D,B)

Mr. Justice Muhammad Tariq Afridi. & Mr. Justice Abdu Fayaz.