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Petitioner: Marriam Bibi and others VS Respondent: Azhar Iqbal and others
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Marriam Bibi and others vs Azhar Iqbal and others Case No.: Writ Petition No.359 of 2022 Date of Judgment:2022-09-07 Reported As: 2022 LHC 6756, PLD 2022 Lahore 840 Result: Petition Allowed
JUDGMENT
JUDGMENT "Women will only have true equality, when men share with them the responsibility of bringing up the next generation". Justice Ruth Bader Ginsburg, Judge, US Supreme Court JAWAD HASSAN, J. The Context This constitutional petition will decide an important question of law with regard to procedure provided for fixing maintenance allowance enacted in shape of Section 17A(4) of the Family Courts Act, 1964 (the "Act") which is being ignored frequently by the Family Courts resulting into arbitrarily fixing amount of maintenance and passing of stereotype orders/judgments eventuating in serious miscarriage of justice in utter disregard of intent of Statute; pathology of Section 17A(4) of the Act; anatomy of Schedule under Section 5, Part-1 and judicial anthology of the decisions of apex as well as this Court which are binding on the Family Courts under Article 189 and 201 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"). The Issue 2. The subject matter, is of great technical complexity, but the legal question which falls for determination by this Court is the fixing of maintenance allowance by the Family Court without considering the provisions of law and how it can be applied for the benefit of parties at lis. The Petitioners through this constitutional petition under Article 199 of the Constitution have assailed the judgments & decrees dated 30.09.2021 and 10.01.2022 (the "impugned judgments"), only to the extent of quantum of maintenance fixed respectively by Senior Civil Judge (Family Division), Attock and Additional District Judge, Attock.
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I. BACKGROUND IN OUTLINE 3. A suit for recovery of gold ornaments, dowry articles etc. as well as for recovery of maintenance allowance and iddat allowance was filed by the Petitioners under the West Pakistan Family Courts Act, 1964 [amended through Family Courts (Amendment) Act, 2015] and the Family Court, after framing of issues and recording of evidence of the parties, passed the final judgment and decree dated 30.09.2021 thereby fixing maintenance of the minor at rate of Rs.5,000/- per month, agitated to be without taking into consideration the daily routine life necessities/demands/needs of the child. The said judgment and decree was assailed by the parties through their respective appeals which ultimately were dismissed through consolidated judgment and decree dated 02.12.2021. Hence, this Petition. The question for this Court is whether the Family Court, through the impugned judgments and decrees have rightly fixed maintenance allowance. This is a pure question of law, but an understanding of its implications requires at least a bare summary of the technical context in which it arises. A full description of the technical context may be found in the judgments of the Courts below. II. PETITIONER'S SUBMISSIONS 4. Mr. Shaukat Aziz Siddiqui, ASC submits that Respondent No.1/Azhar Iqbal being a man of means could easily pay maximum amount on account of maintenance, as prayed by the Petitioners but this aspect of the matter has not been attended to by the Courts below. He maintains that Petitioner No.1, in order to prove her case, produced on record certain material documents having not been rebutted by Respondent No.1 in his written statement or through evidence, but both the Courts below have erred in law while fixing a meager quantum of maintenance allowance of minor. He adds that the Petitioners proved the financial status of Respondent No.1 being an employee of Atomic Energy Department and earning more than Rs.100,000/- per month, whereas the Respondent No.1 also admitted his liability to maintain the minor/Petitioner No.2, but @ Rs.1,500/- per month and also to pay maintenance allowance for iddat period to Petitioner No.1 @ Rs.2,000/-. Further argued that, during cross examination, Respondent No.1 admitted the suggestion reading as follows: 5. Mr. Shaukat Aziz Siddiqui, ASC has drawn attention of the Court towards Section 17-A(4) of the "Act", which clearly states that the Family Court may summon the relevant record from any organization, body or authority to determine the estate and resources of the Respondent/father, before fixing the maintenance allowance but this exercise has not been carried out in the case in hand. He relies on the judgment reported as "Muhammad Asim and others versus Mst. Samro Begum and others" (PLD 2018 SC 819) in which the Hon'ble Supreme Court of Pakistan, at paragraph No.6, has held that "where a husband is required to maintain his wife or child the Judge Family Court should try to ascertain the salary and earning of the husband who is required to pay maintenance." Further reliance is placed on the judgment passed by this Court in the case of "Khalid Mahmood versus Naseem Akhtar and others" (2019 MLD 820). III RESPONDENTS' SUBMISSIONS 6. Conversely, Mr. Zeeshan Munir Peracha, Advocate vehemently objected to the maintainability of this Petition and defended the impugned judgments and decrees. He added that Respondent No.1 was a security guard in NESCOM School and his salary was Rs.19,000/- per month, therefore, he is unable to meet with whims and wishes of Petitioners to manage and pay decreed maintenance allowance. 7. Arguments Heard. Record Perused. IV DETERMINATION BY THE COURT 8. Nub of the matter in this case is how the Family Court can proceed for fixing maintenance allowance as per Section 17-A(4) of the "Act", which requires interpretation. Before interpreting
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abovesaid Section, the guidance is sought from Lord Jonathan Sumption, former Judge of UK Supreme Court who stated that "judges are meant to interpret laws but, increasingly, they make them. In the past few decades, legislatures throughout the world have suffered from gridlock. In democracies, laws and policies are just as soon unpicked as made. It seems that Congress and Parliaments cannot forge progress or consensus. Moreover, courts often overturn decisions made by elected representatives".1 as referred to by this Court in "M/S BIO-LABS PRIVATE LIMITED Versus PROVINCE OF PUNJAB others" (PLD 2020 Lahore 565). 9. Moreover, guidance is also sought from Justice Antonin Scalia, Judge of US Supreme Court who stated "in exploring the neglected art of statutory interpretation, the judges resist the temptation to use legislative intention and legislative history. Hence, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself".2 as referred to by this Court in "RELIANCE COMMODITIES PVT LTD Versus FOP (Secretary Revenue) etc" (PLD 2020 Lahore 632 = 2020 PTD 1464 = (2021 124 TAX 490 (H.C. Lah). So, for the purpose of addressing the matter elucidated hereinabove and to reach up to a just and absolute conclusion, onward discussion shall follow moot points mentioned here under: 1. Whether the Family Court has powers to fix maintenance allowance on it's own volition arbitrarily or otherwise is required to assess the quantum for maintenance as per provisions of Section 17- A(4) of the "Act"? 2. What is meant by terms assets and resources referred in Section17-A(4) of the "Act"? 3. Generally or in particularized state of non-availability of sufficient evidence on behalf of parties, whether the pleadings/ averments set forth by the parties to the suit are enough for determination of quantum of maintenance or the Family Court should embark upon inquiry about 'estate' and 'resources' of the defendant for finally fixing up maintenance allowance? MOOT POINT No.1 (Fixation of maintenance) (Pathology of Section 17A(4) of the Act). 10. The pathology of Section 17A(4) of the Act has to be examined in the light of judgment of Hon'ble Supreme Court of Pakistan rendered in "MUHAMMAD ASIM and others Versus MST. SAMRO BEGUM and others" (PLD 2018 SC 819) wherein it was held that "a husband is required to maintain his wife or child the Judge Family Court should try to ascertain the salary and earning of the husband who is required to pay maintenance". The said section was amended and substituted by way of the Punjab Family Courts (Amendment) Act, 2015 (Act XI of 2015) w.e.f. 18.3.2015 and purpose of bringing the amendment has exhaustively been dilated upon by the Hon'ble Supreme Court of Pakistan in "Mst. YASMEEN BIBI and Versus MUHAMMAD GHAZANFAR Khan and others" (PLD 2016 SC 613) where it has been held that "the Legislature felt essential to provide for establishment of Family Courts to deal with all matrimonial disputes, mentioned above, in an expeditious manner, curtailing the life of litigation in such cases. To curb and suppress the mischief of delaying tactics on the part of unscrupulous husbands, several amendments were introduced to the Family Court Act, 1964". Pertinently, in Family Courts, issue of maintenance allowance is dealt with under Section 17-A of the "Act" which is reproduced for ready reference as under: 17A. Suit for maintenance:- (1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case. (2) In a decree for maintenance, the Family Court may:
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(a) fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances; and (b) prescribe the annual increase in the maintenance. (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. (4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant. 11. Whilst determining and fixing maintenance allowance, in addition to mode prescribed in section 17-A (4) ibid, setting in motion section 17-B of the "Act" may be helpful as well, which reads as follows: 17-B. Power of the Court to issue Commission:- Subject to such conditions and limitations as may be prescribed, the Court may issue a Commission to:- (a) examine any person; (b) make a local investigation; and (c) inspect any property or document. 12. Section 17-A of the "Act" was amended in 2015, wherein Section 17-A(1) starts with the words "suit for maintenance" and it deals with the interim maintenance of wife and the child, whereas Section 17-A(4) deals with final maintenance allowance. In order to elucidate and interpret Section 17-A(1) ibid the legislature has emphasized to pay interim maintenance on first appearance of the defendant. Upon assiduous perusal of the provisions of Section 17-A ibid, it can be gleaned that the use of the terms "fix" and "fixing" in sub-section 1 and 4 of the said Section 17-A is of much relevance. The term "fix" in itself is defined by the Black's Law Dictionary as "to liquidate or render certain". Whereas, "fixing" is the act of doing so. The, use of both said terms "fix" and "fixing" respectively arise in Section17-A (1) of the "Act" to fix interim maintenance and in Section 17-A (4) of the "Act" for fixing final maintenance. 13. The question now arises whether the Family Court has unguided un-fettered and un-bridled and arbitrary powers to fix maintenance while employing its discretionary dominion at its discretion or is it required to proceed on pragmatic, rational and judicial basis? The answer, of course, is that it should proceed on the later. Family Court should adopt an objective approach and broadly look into the social status of the parties, the earning of the defendant, his capacity to pay and most importantly, the requirements of the claimants while fixing the maintenance. 14. It cannot be denied at all that a husband is under legal, moral and religious obligation to maintain his legally wedded wife. Section 272 of Mohammdan Law by Mullah provides that husband is bound to maintain his wife so long she is faithful to him and obeys his reasonable orders but he is not bound to maintain her if she refuses herself to him or otherwise disobeys. Section 278 postulates that if a husband refuses to maintain his wife, she may sue for maintenance. Hence, it is the obligation of husband to pay Nafqa or maintenance, if construed in accordance with the principles as laid down in "HIDAYA" translated by Charles Hamilton in Chapter XV such as "Nafqa", in the language of law, signifies all those things which are necessary to support of life, such as food, clothes and lodging. Moreover, it is further demonstrated that when a woman surrenders herself into the custody of her husband, it is incumbent upon him to supply her with food, clothing and lodging, whether she be a Muslim or an infidel, because maintenance is a recompense for matrimonial restrain, whence it is that where a person is in the custody of another on account of any demand, or so forth, his subsistence is incumbent upon the other. The jurisprudence developed by Islam demonstrates that it is the duty of a Muslim wife to perform her part of obligation first for setting in with claim of maintenance. The husband may refuse to
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maintain his wife when she refuses to live with him and if a wife refuses to live in the house of her husband and not ready to perform her part of duty and denies to live with him as his wife, she is not entitled for maintenance. 15. In Islamic law, a father is under legal, moral and religious obligation to maintain his children till the age specified by law/sharia and it shall not be out of context to mention here that his such obligation originates from esteemed dictates of Holy Quran reading as follows: "And clothing and maintenance must be borne by the father in a fair manner." [AL-BAQARAH, 233]. 16. Such obligation of father has time and again been recognized, elaborated and emphasized by August Supreme Court of Pakistan. It has been held in case titled "Humayun Hassan V. Arslan Humayun and another" (PLD 2013 Supreme Court 557) reading as follows: "4. Heard. There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to section 369 of the Muhammadan Law by D.F. Mullah, maintenance means and includes food, raiment and lodging. However, it may be observed that from the very language of the above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and the capacity of the father to pay. ...". 17. Following the same dictates, it was held in case titled "Syeda Farhat Jahan V. Syed Iqbal Hussain Rizvi and another" (2010 YLR 3275) reading that: "it is the legal and moral duty of the father of minor children to keep maintaining them he being the natural guardian till they attain the age of majority. No excuse, big or small can absolve the father from his duty of maintaining his minor children which duty has been ordained on him through divine revelation of Allah Almighty." 18. After discussing obligations of husband/father to maintain his wife/children, it shall be quite appropriate to return to relevant law governing claim of maintenance allowance. It is held in case titled "Lt. Col. Nasir Malik V. Additional District Judge, Lahore and others" (2016 SCMR 1821) as follows: "6. ... The legislature has established the Family Courts for expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected therewith. Under the provision of section 5 of the Family Courts Act, the Family Court is vested with the exclusive jurisdiction to entertain and adjudicate upon the matter specified in the schedule. The matter of maintenance is at serial No. 3 in the schedule. Thus, the Family Court has exclusive jurisdiction relating to maintenance allowance and the matters connected therewith. ...". MOOTPOINT NO.2 (Meaning of Estate and Resources) 19. This Court is in no doubt that the Family Court should keep in consideration the following aspects and legal requisites before passing the interim and final maintenance allowance under Section 17-A(1and 4) ibid: (i) Basis of averments in plaint; (ii) other supporting documents on record; (iii) summoning all relevant documentary evidence; (iv) determining the estate; and (v) determining resources of the defendant.
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20. Unfortunately, in this case the Family Court did not consider the aforesaid aspects and legal requisites and decided the case on the basis of mere oral averments without making sure production of easily available documents on record, summoning all relevant documentary evidence and determining the estate and resources of the defendant to ascertain his financial status and capacity to pay. Record reveals that the Respondent No.1 during cross examination has himself admitted non-production of his salary/pay slip as well as factum of substantial status of salaries of Atomic Energy Department, but the Court did not correctly weigh this part of evidence while deciding the matter. Anatomy of Section 17A(4) of the Act regarding Estate and Resource 21. The Family Court, after above referred admissions of Respondent No.1, had not been left clueless, helpless and handicapped, rather said admissions invited attention of the Family Court to invoke provisions of Section17-A (4) ibid for immediate rescue, rather it was bound to step ahead for determining the 'estate' and 'resources' of Respondent No.1 to meet with ultimate cause of justice for final fixing of maintenance allowance in issue. Attending situation makes it necessary to define and interpret the words "estate" and "resources" mentioned in Section 17-A (4) ibid, dictionary meanings whereof are as follows: ESTATE: i. The term 'estate' has been defined in the Black's Law Dictionary (A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published in 1856) as: "the interest which any one has in lands, or in any other subject of property". ii. While 'estate' has also been defined in its most extensive sense as: "signifying everything of which riches or, fortune may consist and includes personal and real property". iii. Cambridge Dictionary defines estate as: "everything that a person owns when they die", iv. Macmillan Dictionary defines estate as: "all the property and money that belongs to someone, especially someone who has just died". v. Thus, an 'estate' may be defined as comprising all that can be constituted as the net worth of an individual, which includes all assets that an individual may have a controlling interest in. RESOURCES: i. The term 'resources' has been defined in Black's Law Dictionary as: "money or any property that can be converted into supplies; means of raising money or supplies; capabilities of raising wealth or to supply necessary wants" ii. Moreover, Cambridge Dictionary defines resource as: "a useful or valuable possession or quality that a person or organization has, for example, money, time, or skills." iii. Merriam Websters defines resources as: "(a) a source of supply or support (b) a natural source of wealth or revenue (c) a natural feature or phenomenon that enhances the quality of human life, (d) computable wealth and (e) a source of information or expertise." 22. Inferentially, it is not out of place to further peruse the provisions stipulated in Sections 11 and 39 of the Income Tax Ordinance, 2001 (the "Ordinance 2001"), which encapsulate the gist of the definition reproduced above by way of stating range of sources of income. Section 11 of the Ordinance 2001 states that the income can be classified under the heads of salary, income from property, income from business, capital gains and income from other sources, whereas Section 39 of the Income Tax Ordinance, 2001 provides that head of income from other sources includes dividend, royalty, profit on debt, additional payment on delayed refund under any tax law, ground rent, rent from sub-lease of land or a building, income from the lease of any building together with
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plant or machinery, income from provision of amenities, utilities or any other service connected with the renting of building, annuity or pension, prize bond etc. and such other sources defined therein. Thus, benefit may be fetched from said Sections 11 and 39 of the Income Tax Ordinance, 2001 for purpose of determining what were the 'estate' and 'resources' of the Respondent No.1 falling in Section 17-A(4) of the "Act". MOOT POINT NO.3 (Duty of the Family Court to inquire on Estate and Resources of Husband) 23. It is also worth mentioning here that the Family Court is established under Section 3 of the "Act" and it has jurisdiction to deal with the matters under Sections 4 and 5 of the "Act", where certain powers conferred under the law are procedural in nature and some are substantial in nature. The Family Court so established under Section 3 of the "Act" has been specifically conferred clear mandate for expeditious settlement and disposal of family disputes and related matters as per its Preamble. In the case of "Haji Muhammad Nawaz v. Samina Kanwal and others" (2017 SCMR 321) it is held that" Family Court, whether as a trial court or an executing court, is governed by the general principles of equity, justice and fair play". The main object of the "Act" is for protection and convenience of the weaker and vulnerable segments of the society i.e. women and children. Moreover, it is held in case titled "Farzana Rasool and 3 others V. Dr. Muhammad Bashir and others" (2011 SCMR 1361) as follows: "21. The object of the Act is to minimize the technicalities and procedural bottlenecks for the purpose of speedy justice between the parties in shortest possible time and in shortest possible manner. The Act has changed the forum and also altered the method as to how the trial under the Act is to be proceeded and case decided......." Procedure to be followed by the Family Courts 24. For implementation of purpose of the "Act" aimed at much needed expeditious disposal of disputes, the "Act" has brought in certain powers, procedure and parameters for the Family Courts for being adhered to. Hence, there can be no qualms about the fact that the Family Court has to exercise its powers so conferred vide provision of Section 17-A of the "Act". Thus, the Family Court is legally obliged to assess the quantum of maintenance as per dictate and criteria mentioned in Section 17-A(4) of the "Act". 25. By examining the record of the case and the impugned judgment passed by the Family Court, it transpired that the Petitioner appeared as PW1 and she in her documentary evidence has adduced the list of dowry articles and other documents, but the Respondent No.1 only appeared as DW1 producing mere an affidavit without adducing any other document. The Respondent No.1 admitted during cross-examination that he did not annex the pay slip even with his written statement. Credentials of employer of the Respondent No.1 and his holding job with said employer are the facts having not been denied by him and in such a situation, the Family Court had the power to summon his service/salary record, which process was not set in field. The Family Court while deciding the issues No.1 and 2 together observed: "So for as quantum of maintenance allowance is concerned, the stance of the plaintiff is that the defendant is man of means and doing his job in Atomic Energy and his salary is more than Rs.1,00,000/-.The defendant has negated the said version and has taken plea that he is security guard in NESCOM. The Plaintiff should have submitted the salary slip of the defendant to establish the exact financial…
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