Stereo HCJ DA 38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT

Writ Petition No.359 of 2022

Marriam Bibi and others V/S Azhar Iqbal and others

JUDGMENT

Date of hearing 07.09.2022

Petitioner(s) by Mr. Shaukat Aziz Siddiqui, ASC with
Hunble Murad Siddiqui, Advocate.
Respondent(s) by Mr. Zeeshan Munir Peracha, Advocate for
Respondent No.1 along with Nauman Munir
Peracha, ASC.
Rashid Mehmood, Civil Judge 1st
Class/Research Officer assisted by Barrister
Aiema Asrar and Fatima Midrar, Advocates.
Mr. Sajid Khan Tanoli, DAG, Asif Ikram,
Assistant Attorney General and Mirza Asif
Abbas, Assistant Advocate General.

“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
W.P.No359 of 2022 2

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.
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.
W.P.No359 of 2022 3

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:

‫زہاروخنتاہیکابتبوکیئےپپلساےنپوجابےکاسھتہناگلیئ‬19‫"ہیابتدرتسےہہکںیمےن‬
"‫ےہ۔ہیدرتسےہہکہمکحمااٹکمیکوخنتاںیہایھچںیہ۔‬

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
W.P.No359 of 2022 4

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
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

1
Trials of the State: Law and the Decline of Politics, (Profile Books, London UK-First Edition 2020) by
Lord Jonathan Sumption, UK Supreme Court
W.P.No359 of 2022 5

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

2
A Matter of Interpretation: Federal Courts and the Law - New Edition (The University Center for Human
Values Series Book 47) Kindle Edition by Justice Antonin Scalia, Judge, US Supreme Court.
W.P.No359 of 2022 6

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:
(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.
W.P.No359 of 2022 7

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
Section17-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.
W.P.No359 of 2022 8

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 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:
W.P.No359 of 2022 9

"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.”
W.P.No359 of 2022 10

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.

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
W.P.No359 of 2022 11

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:
W.P.No359 of 2022 12

“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 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”.
W.P.No359 of 2022 13

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
W.P.No359 of 2022 14

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 status
of the defendant but she has failed.

26. Notwithstanding the fact that (Respondent or Petitioner) was

unable to procure and bring on record salary slip of the Respondent
No.1, he himself was obliged to bring on record documents showing
his monthly salary as is desired in the case of “MUHAMMAD ASIM
and others Versus MST. SAMRO BEGUM and others” (PLD 2018
SC 819),wherein it has been observed that:
“6. That as regards the learned counsel's
contention that the earnings of the Muhammad
Asim are not known, we deprecate this attempt
at intentional non-disclosure. Muhammad Asim
is employed by PAEC but elects not to disclose
his position or salary; he thus seeks to take
advantage of his own willful non-disclosure.
W.P.No359 of 2022 15

Where a husband is required to maintain his

wife, former wife during her iddat period or
child and is required to pay maintenance,
including the arrears of maintenance, his
present and past earnings must be disclosed by
him, because his financial status determines the
amount of maintenance that should be
awarded. In case of non-disclosure an adverse
inference can be drawn against him. ……. his
conduct further betrays that he does not want to
be fair and has unnecessarily embroiled his
former wife and child in needless litigation.
….”.

27. Moreover, after pleading and asserting stance of his monthly

salary @ Rs.19,000/- Respondent No.1 was obliged to produce in his
evidence the legally reckoned record to prove said stance, but he fell
short of ground to meet with the purpose. In addition to said shortfall
on part of Respondent No.1, even the Family Court did not bother to
actuate inquiry under Section 17-A (4) of the “Act” for summoning
the relevant record for determination of the ‘estate’ and ‘resources’ of
the Respondent No.1 nor the mode enacted in section 17-B of the
“Act” was followed, instead the Petitioner was assumed to prove the
financial status of the Respondent No.1 despite that it apparently
wasn’t possible for her to secure and produce his salary slip/service
record.
28. In connection thereto, time and again formulated guidelines as
well as principles settled by superior courts are overlooked by the
Family Court. In a bright/clear situation of above-mentioned inability
of Respondent and shortfall on his part, Family Court itself was
empowered to step ahead with procedure enunciated in sections 17-A
(4) and 17-B of the “Act” for requisite inquiry destined for absolute
and unambiguous determination of his ‘estate’ and ‘resources’
including his salary/monthly income to finally fix maintenance
allowance in issue. Non-adherence of law, formulated guidelines and
settled principles thus can’t be guarded for being allowed to breath
any further.
W.P.No359 of 2022 16

Judicial Anthology of the Procedure

29. At the cost of repetition, it has to be emphasized here again

that inquiry for determining ‘estate’ and ‘resources’ of Respondent
No.1 was quite necessary for fixing a justifiable quantum of
maintenance allowance. For instance, bending upon necessity of
inquiry even for fixation of interim maintenance allowance, certain
principles are formulated in case titled “Muhammad Tauseeq
Danial Bhatti V. Ayesha Naeem and 2 others” (2021 MLD 337
Islamabad) whilst holding as follows:

“15. ………
vii. The financial status of father could also
be considered on the basis of facts narrated in
pleadings of the parties. which includes the
living standard and previous matrimonial life
of the parties in which the mother/wife has
been provided with particular kind of living,
housing facilities, transportation, gifts,
immovable properties of husband and the
lifestyle in which husband/father was living
prior to separation or divorce or before the
institution of suit for maintenance.
viii. In cases, where father being civil servant
or employee of any organization, department
or company has not appended his salary slips
or bank statements, the Family Court shall ask
for an undertaking or affidavit regarding his
salary and thereafter shall fix the interim
maintenance, however after the trial of the
case, if the court comes to the conclusion that
at the time of fixation of interim maintenance
allowance the father/husband has stated a fact
beyond his pleadings or undertaking, which is
found to be false, such father be burdened with
heavy costs and action of perjury may also be
initiated against him.
ix. The Family Court may also call the
employer of father, HR department, admin
department, bank managers, land revenue
department, tax record, and banking details as
well as salary details of the father directly from
W.P.No359 of 2022 17

the relevant offices while deciding the question

of interim maintenance for a prima facie view
to fix the allowance in favour of minor so that
no inadequacy is attributed while fixing the
maintenance allowance."

30. Though annual increase in decreed maintenance allowance

was reduced, however inquiry with regard to financial status of
father was made incumbent upon Family court in case titled
“Tauqeer Ahmad Qureshi V. Additional District Judge, Lahore and
2 others” (PLD 2009 Supreme Court 760) holding that:
“9. …. The minors are entitled to be
maintained by the father in the manner
befitting the status and financial condition of
the father and for this reason the Family
Court is under an obligation while granting
the maintenance allowance, to keep in mind
the financial condition and status of the
father. It has to make an inquiry in this
regard. It cannot act arbitrarily or
whimsically. ……. It was not a reasonable
exercise of authority by the Family Court. It is
well-settled that the judicial officers are
required to act justly and fairly and
reasonably in discharge of judicial functions.
…”

31. Again, sensitizing inquiry for determining financial

capacities of a father for fixation of maintenance allowance, it is
held in case titled “Muhammad Shakir V. Additional District Judge,
Islamabad-West and 5 others” (2021 CLC 809 Islamabad) as
follows:
“17. The principle ibid, guides to hold that
before determination of the quantum of the
maintenance, the learned Family Court, is
under obligation to determine the financial
capability of the father vis-a-vis the amount
claimed in that respect. The test provided for
the purpose is that there should be some
tangible, concrete and confidence inspiring
material preferably in the shape of documents
and thereafter proper maintenance is to be
fixed.
W.P.No359 of 2022 18

21. … the awarded maintenance appears to be

excessive and in contravention of the financial
capability of the petitioner particularly, when
there is nothing on record regarding his
financial capability. The amount so fixed thus
warrants modification.
22. The sequel of above discussion is that
while fixing maintenance, both the learned
courts have overlooked the important aspects
highlighted in para-14 (supra), which are
essential to determine the financial capability
of the father vis-à-vis independent source of
income of the respondent No.3/mother. It was
incumbent upon the courts to determine the
income of the father for which recourse in
terms of subsection (4) of section 17(A) of the
West Pakistan Family Courts Act, 1964 can be
adopted which is meant to facilitate the court to
determine the financial position of the father.”

32. The language of Section 17-A(4) is unambiguous to the extent

that it clearly empowers the Family Court, by stating that it “may
summon the relevant documentary evidence from any organization,
body or authority”. In pursuance of which the Courts have held that
the Family Court has to call upon the “…employer of father, HR
department, admin department, bank managers, land revenue
department, tax record, and banking details as well as salary details
of the father directly from the offices…”, as was the case in “Dr.
Aqueel Waris vs. Ibrahim Aqueel Waris” [2020 CLC 131].
33. Gearing in process under section17-A(4) of the Act, it was
emphasized by this court for determination of salary of father for
fixing of maintenance allowance in case titled “Khalid Mehmood V.
Naseem Akhtar and others” (2019 MLD 820) reading as follows:
“6. As far as quantum of maintenance allowance
of minors/ respondents is concerned; it would be
advantageous to reproduce Section 17-A(4) of
The Family Courts Act, 1964 as under:
"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."
W.P.No359 of 2022 19

34. Again, determination of financial status and income of the

father was observed as necessary for fixing maintenance allowance in
case titled “Nazia Bibi and others V. Additional District Judge,
Ferozewalla and others” (PLD 2018 Lahore 916) holding that:
“7. … Hence a father is obligated to maintain
his children and a reasonable standard must be
assumed for determining quantum. It is seen that
more often than not family courts and appellate
courts while exercising jurisdiction in cases
requiring determination of maintenance tend to
fix the quantum of maintenance without
discussing the factors considered or the reasons
for concluding so. Hence one has to wonder on
what basis did the court formulate its opinion
whilst fixing maintenance. It goes without saying
that a judicial order must be a speaking order
where the reasons are clearly stated by the court.
….
8. …. The court must also take into
consideration reasonable probability of
obtaining education and the ability to take care
of the minors in a stable, safe and healthy
environment. Without due consideration of all
these factors, the court cannot conclude
positively the quantum of maintenance. There is
no hard and fast formula for determining
quantum of maintenance and the main
consideration for the Court is the ability of the
father to maintain the minors. A father is
obligated under the law to take care of his minor
children and the quantum has to be determined
as per his earning, financial and social status
and the ability that he may have to take care of
the minors. ….
9. …. At the same time the court must determine
the income of the father either through proper
documentary evidence or on the basis of the
social status and earning capacity of the father.
In order to ensure that proper information is
before the court, it may always require the father
to produce documents such as his salary slips or
any bank statement or property document on the
basis of which he is able to show his monthly
income or earning or his financial status. In this
regard, the assets owned by the father are
relevant as it contributes towards establishing
W.P.No359 of 2022 20

the financial status of the father that has to be

probed into by the court and based on attending
circumstances the court can conclusively
establish the means through which the father will
be able to maintain the minors. ….
10. In this regard, it is noted that Section 17(A)
of the West Pakistan Family Courts Act, 1964
specifically provides in subsection (4) that for
the purposes of fixing maintenance, the court
may summon the relevant documentary evidence
from any organization, body or authority to
determine the estate and resources of the
defendant. The purpose of this provision is to
facilitate the court to determine the financial
position of the father. The court therefore is not
dependent on documents or information
provided by the father and can call for relevant
documents or information be it from the relevant
department or organization or as the case
requires, in order to determine the income of the
father. …..”

35. Highlighting necessity of inquiry for determination of financial

status of father, it is observed in case titled “Nosheen Agha and
another V. Additional District Judge (West) Islamabad and another”
(2015 CLC 349) reading as follows:
“15. However, the learned Trial Court as
well as the learned Appellate Court while
decreeing the suit did not refer to any material
on the basis of which quantum of maintenance
was adjudged. This error floating on the
surface amounts to negation of the requirement
contained in section 17-B of Family Courts Act,
1964, because both the Courts on one hand
failed to inquire into the financial position of
defendant/ husband and also did not take into
account the justification in the context of
normal needs of minor girl in custody of her
mother.”

36. Whilst dealing with question of finally decreeing maintenance

allowance after striking down defense of father due to non-payment of
interim maintenance allowance, it is held in case titled “Shahzad
W.P.No359 of 2022 21

Hussain V. Judge Family Court, Lahore and 2 others” (2011 CLC

820Lahore) reading as follows:
“21. …. The Judge Family Court has to
undertake some exercise in arriving at a
judicial and just conclusion with respect to the
financial resources of the defendant, the needs
of the plaintiff of the maintenance suit and the
determination of the rate of maintenance to be
finally decreed by the Judge Family Court. It is
for facilitating this process that section 17B has
been inserted and added to the Family Courts
Act, 1964.”

Judicial Anthology of UK and US Judgments

37. It is not out of place to refer here how the Courts of United
Kingdom (UK) and Unites States of America (USA) determine
maintenance. Upon examination of the laws of UK and USA, it is
notable that the Courts of foreign jurisdiction travel similar lengths for
ascertaining the quantum of maintenance as envisaged under Section
17-A(4) of the “Act”. The UK method of determining maintenance is
more like tax, related only to the income figure. Furthermore, this
approach delineates that Child Maintenance Service (CMS) uses the
latest full tax year data from HM Revenue and Customs (HMRC)
without needing to request it from any other source in order to
determine the maintenance amount with reference to income.
Whereas, Lady Hale in “Smith (FC) (Appellant) vs. Secretary of State
for Work and Pensions and another (Respondents)”[2006 UKHL 35]
= [2006 WLR 2024], provided auxiliary to the term ‘earnings’ and
defined it to include amount after deduction of income tax, national
insurance contributions and half of any retirement annuity premium.
In the United States, the Supreme Court of Florida, in “Bowen vs.
Bowen”[471 So. 2d 1274 (1985)] while elucidating the non-payment
of maintenance amount referred to the relevance of producing “all
proof such as pay-stubs, income tax returns, doctor's statements,
receipts, etc.,”
W.P.No359 of 2022 22

38. Judicial resources need to be promptly and consistently

available to litigants for the core functions of fact finding, particularly
when law itself is available for rescue. Therefore, in all cases where
the occupation, job or source of income of the person is definite and
identified and of such a nature remuneration, income or earnings
wherefrom can be traced in a documented form then by all extent and
measures, it is the duty of the Family Court to ascertain the ‘estate’
and ‘resources’ of the defendant defined above, in all such cases
where the same stands undetermined or pleadings are evasive or just
formal without substantive or believable proof in this regard and by
way of summoning the relevant documentary evidence instead to
settling with sole reliance upon the pleadings/averments of the parties
without due application of mind and exercise of its powers
specifically conferred by way of legislation. It is neither unusual nor
whimsical for the Family Courts to delve into the relevant
documentary evidence dealing with the financial status of the
defendant to determine the maintenance.
39. Addressing another aspect of issue in hand and evaluating facts
with another angle, record transpires that the Family Court further
held in the judgment that:
“There is no documentary proof available on
the record to establish that the actual salary is
more than Rs.1,00,000/-. It is well settled law
that the Parties should proof their respective
versions through their respective evidence and
mere oral assertions are not sufficient.”

40. It is to be highlighted that at one hand the Family Court held

that there is no documentary proof regarding salary of the
Respondent, but on the other hand arbitrarily fixed the final
maintenance allowance of the minor @ Rs.5000/- per month with
10% annual increase by itself assuming the financial status of the
Respondent, origination and strength of which assumption may be
traced and tracked from nowhere and mode of fixing maintenance
allowance so adopted is clearly contrary to the powers conferred to
W.P.No359 of 2022 23

the Family Court under Sections 17-A(4) and 17-B of the “Act” as
well as in violation to the fundamental rights of the Parties
guaranteed under umbrella of the Constitution.
41. Importantly, Article 4 of the Constitution clearly states that it
is inalienable right of subjects to be treated in accordance with law
and no action detrimental to their reputation, life, and liberty shall be
taken except as per law. It is imperative to note that women and
children approaching the Court in family matters are protected by
Article 4 of our Constitution and, therefore, must be treated in
accordance with the law laid down in S.17(A) of the “Act”. Article 4
is an established practice that is deep rooted in the custom and usage
of law and, therefore, it cannot be overlooked and disregarded by any
Court. To reiterate a well settled principle, “to apply and to adhere to
law is not a mere technicality, rather it is a duty cast upon the Court
as per Article 4”: “SYED TAHIR HUSSAIN MEHMOODI and others
Versus AGHA SYED LIAQAT ALI and others” [2014 SCMR 637] is
referred.
42. Furthermore, Article 10-A of The Constitution of Pakistan,
1973 provides right of fair trial and due process for determination of
rights and obligations of parties. The maxim goes “boni judicis est
ampliare justitiam” i.e. the good judge’s duty is to extend justice. And
justice can only be extended, when something is done in accordance
with law. For enforcement of Article 10-A ibid, it has been held in
case titled “Federation of Pakistan through Secretary Finance,
Islamabad and another V. E-Movers (PVT.) Limited and another”
(2022 SCMR 1021) as follows:
“24. ….. When the law stipulates that
something has to be done in a particular
manner that is how it should be done. And any
person who exercises authority must do so in
accordance with law. The right to be treated
in accordance with law was invigorated and
bolstered when the Constitution was amended
to provide an additional Fundamental Right
by adding Article 10A to the Constitution
stipulating that, 'For the determination of his
W.P.No359 of 2022 24

civil rights and obligations or in any criminal

charge against him a person shall be entitled
to a fair trial and due process.' 32 The due
process requirement must be met in the
determination of rights and obligations. The
Constitution does not define due process.
Therefore, it would not be appropriate to limit
its scope by defining it. But this does not
mean that the due process requirement is a
meaningless concept. Rather due process
incorporates universally accepted standards
of justice and is not dependent upon any law
or laws. It is an all-encompassing expression
which may not be curtailed with reference to
particular laws. Due process is to be
understood holistically by keeping in mind the
entire Constitution, which excludes arbitrary
power, authoritarianism and autocratic rule.”

43. Moreover, The Hon’ble Supreme Court of Pakistan in the

judgment reported as “Mst. Yasmeen Bibi and Muhammad Ghazanfar
Khan and others” (PLD 2016 SC 613)has exhaustively dilated upon
the purpose of bringing the Act and Amendment therein. The relevant
paragraphs of the said judgment are as under:
“10. It was in the above background 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.
…………………………………………………………
12. Keeping in view the agonies of the
parties, particularly the wife, in matrimonial
disputes to curtail the mischief of delay and to
shorten the life of litigation in such cases, the
Law and Justice Commission of Pakistan
recommended to the Federal Government and all
the Provincial Governments to establish Family
Courts in each District and Tehsil Headquarter,
which shall be preferably presided over by a
female Judge so that the wives who are not well
acquainted and familiar with the court
W.P.No359 of 2022 25

proceedings are provided maximum protection

and friendly environments.
………………………………………………………...
14. It is demonstrably clear from these
drastic amendments made in the Family Courts
Act including the new provisions added therein,
that the Legislature was well aware of the
miseries and plight of the wives, seeking relief
through the obsolete law then in vogue thus, to
minimize the same not only all matrimonial
disputes were brought under one and the same
umbrella of the Family Court but also provided
for the target date, both for the Family Court and
for the Appeal Court, by which such cases shall
be decided conclusively.”

44. It is well established that the procedural laws are enacted to

advance cause of justice and not to thwart the same, which intent of
law is no doubt always aimed at the welfare of its subjects. So, it is
need of the day to employ legislated processes that are more
accessible and more responsive for children, parents, and families.
The Family Courts must adopt therapeutic and holistic approach to the
Court structure and processes, as well as to decision making in family
disputes.
45. Therapeutic jurisprudence applied in the family law context
means that courts must focus on achieving outcomes that positively
affect and even improve the lives of individuals, children, and
families involved in family litigation, which approach definitely has
the potential to facilitate problem-solving and to positively enhance
the quality of the parties’ daily lives, thereby rendering a more
effective outcome for individuals and families. Articles 4, 9 and 14
are to be read with Article 35 of the Constitution, which cast upon
duty on the State to protect the marriage, the family, the mother and
the child. Since Article 35 of the Constitution relates to public
importance as per judgment reported in “BARRISTER MUHAMMAD
AHMED PANSOTA Versus FOP etc” (PLD 2020 Lahore 229)
therefore, the family Court must be consisting with due process of law
as provided under Article 4 of the Constitution which states that the
W.P.No359 of 2022 26

Court proceedings must be consistent with due process of law, as

judicial orders involve important legal rights and constitutional
values, otherwise general opinion would criticize the current family
justice system and emphasize that the adversary process does not meet
the needs of litigants who look to the courts for solutions.
46. While examining the jurisprudence laid down in family
matters, this Court has noticed that Family Courts are not properly
following the procedure in this regard as time consuming litigation in
shape of family suits involving issue of maintenance allowance are
being decided without adhering provisions of Section 17-A (4) of the
Act and procedure laid down therein, which is meant to aid none else
but to advance cause of justice as the intent of legislature involved
therein was to equip Family Court with easily enforceable mode
enabling absolute and just determination of ‘estate’ and ‘resources’ of
husband/father for fixing maintenance allowance.
47. However, adjudications in Family Courts reflect their
detachment from the realities of the current socio-economic situations
of the Country. Stereotype orders are passed arbitrarily and
mechanically, that too, in deviation to the legislation which can
benefit nothing, but they will make way for multiplication of litigation
amongst parties forcing them not only into unfathomable agonies, but
burdening them with certain financial obligations as well ending up in
further economic distress and plight. As already, the Hon’ble Supreme
Court of Pakistan in “MST. YASMEEN BIBI Versus MUHAMMAD
GHAZANFAR KHAN and others” (PLD 2016 SC 613) has held that
“keeping in view the agonies of the parties, particularly the wife, in
matrimonial disputes to curtail the mischief of delay and to shorten
the life of litigation in such cases, the Law and Justice Commission of
Pakistan recommended to the Federal Government and all the
Provincial Governments to establish Family Courts in each District
and Tehsil Headquarter, which shall be preferably presided over by a
female Judge so that the wives who are not well acquainted and
familiar with the court proceedings are provided maximum protection
W.P.No359 of 2022 27

and friendly environments”. Judicial pronouncements beyond

aspirations of law and by way of bypassing readily available
legislated procedure/mechanism merit no space in society. As had
been noted by Lord Chancellor Hailsham in “Hyman v Hyman”
[1929] AC 601,614, the power of the court in securing a sufficient
provision for the wife was not only in her interest but in the interest of
the public. This Court also concurs that adjudication in all cases must
be done with due application of mind and exercising the legally
conferred powers, so that it is the public at large that shall be
benefited from the verdict.
48. For what has been discussed above and seeking guidance from
the binding judgment of the Hon’ble Supreme Court of Pakistan under
Article 189 of the Constitution reported in “MUHAMMAD ASIM and
others Versus MST. SAMRO BEGUM and others” (PLD 2018 SC
819) which has elaborated and enunciated principles of law regarding
award of maintenance allowance by Family Courts, this writ Petition
is allowed and by setting aside the judgment and decree of both the
Courts below to the extent of maintenance allowance of minor only,
the case is remanded back to the Family Court to decide it afresh to
this extent in the light of aforesaid observations and strictly following
the criteria laid down under Section 17A and 17-B of the Act, within a
period of two (02) months from the date of receipt of certified copy of
this judgment.
49. The Registrar of this Court is also directed to make sure
transmission of copy of this judgment to all District Judges of the
Punjab for its circulation amongst Family Courts discharging duties
under their supervision for strictly following provisions of the “Act”
in true spirit whilst dealing with issue of fixing maintenance
allowance. A copy of this judgment shall also be sent to Director
General, Punjab Judicial Academy which functions under Section 4 of
the Punjab Judicial Academy Act, 2007 and prescribes manner of
training to judicial officers in terms of Section 5 of the Act ibid.
W.P.No359 of 2022 28

50. Before parting with this judgment, efforts of senior Advocate

Mr. Shaukat Aziz Siddiqui, ASC, Mr. Zeeshan Munir Peracha,
Advocate, Mr. Rashid Mehmood, Civil Judge 1st Class/Research
Officer, Barrister Aiema Asrar, and Fatima Midrar, Advocate are
highly appreciated for their able assistance in the case in hand.

(JAWAD HASSAN)
JUDGE
Approved for Reporting

JUDGE
Usman*