Increase 10% maintenance |The Lahore High Court explained the principle of 10% annual increa of children and wives .
خرچہ نان ونفقہ میں سالانہ اضافہ کیسے ھو گا ھائیکورٹ کا فیصلہ۔
پس منظر: سارہ ایک محنتی اور باہمت خاتون تھی جو اپنے دو بچوں کی دیکھ بھال کرتی تھی۔ اس کا شوہر، حسان، ایک کامیاب کاروباری شخص تھا، مگر اس نے اپنی ذمہ داریوں سے منہ موڑ لیا تھا۔ سارہ نے اپنی حیثیت سے آگے بڑھنے کا فیصلہ کیا اور حسان کے خلاف گزر اَلاؤنس کا مقدمہ دائر کیا۔
پہلا مرحلہ: فیملی کورٹ میں مقدمہ دائر کرنے کے بعد، سارہ نے اپنے حق کی جنگ شروع کی۔ اُس نے دلائل دیے کہ بچے ان کے باپ کے بغیر بھی ایک محفوظ اور خوشحال زندگی گزارنے کے مستحق ہیں۔ حسان نے پہلے تو مقدمے کا مذاق اُڑایا، لیکن جب سارہ نے دلائل دینا شروع کیے تو اس نے دیکھا کہ سارہ میں ہمت اور ثابت قدمی ہے۔
دوسرا مرحلہ: فیملی کورٹ نے سارہ کے حق میں فیصلہ سنایا، مگر حسان نے اس فیصلے کے خلاف اپیل دائر کردی۔ سارہ کو یہ سن کر افسوس ہوا، لیکن اس نے ہار نہیں مانی۔ وہ اپنی وکیل کے ساتھ مل کر دوبارہ عدالت میں پیش ہوئی۔ وکیل نے سارہ کو بتایا کہ یہ ایک موقع ہے کہ وہ اپنے اور اپنے بچوں کے حق کے لیے لڑے۔
تیسرا مرحلہ: اپیلیٹ کورٹ میں بھی سارہ نے دلائل دیے۔ اس نے بتایا کہ اس کے بچے ان کی ضرورتوں کے بغیر نہیں رہ سکتے۔ حسان کی سادگی کا کوئی جواز نہیں تھا۔ عدالت نے سارہ کی باتوں کو سنا اور آخر کار اس کے حق میں فیصلہ سنایا۔
چوتھا مرحلہ: حسان نے فیصلے کے خلاف لاہور ہائی کورٹ میں دوبارہ درخواست دائر کی۔ سارہ کی ثابت قدمی کے باوجود، حسان کی وکیل نے کوشش کی کہ وہ سارہ کے حق میں نہ جانے دے۔ لیکن سارہ نے اپنی ماضی کی مشکلات کو یاد کرتے ہوئے ہمت نہیں ہاری۔
آخری مرحلہ: عدالت نے سارہ کے حق میں فیصلہ سنایا کہ اسے گزر اَلاؤنس ملے گا اور اس کی بڑھتی ہوئی ضروریات کا خیال رکھا جائے گا۔ سارہ کی محنت، عزم، اور وفاداری نے آخر کار کامیابی حاصل کی۔ اس نے اپنے بچوں کو بہترین زندگی فراہم کرنے کا وعدہ کیا اور خود کو ہمیشہ کے لیے ایک مضبوط ماں کے طور پر ثابت کیا۔
نتیجہ: یہ کہانی سارہ کی عزم و ہمت کی عکاسی کرتی ہے کہ کس طرح ایک ماں اپنے بچوں کی خاطر ہر مشکل کا سامنا کر سکتی ہے۔ حسان کی بغاوت کے باوجود، سارہ نے ثابت کیا کہ محبت اور محنت کے ساتھ ہر مشکل کو آسان بنایا جا سکتا ہے۔ اس نے اپنے حقوق کی تلاش میں کبھی ہار نہیں مانی، اور اس کی کہانی بہت سی خواتین کے لیے تحریک کا ذریعہ بنی۔
Must read judgempost.
Stereo. H C J D A 38
JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
W. P. No. 7340 / 2024
Saba Gul & 02 others
Versus
Additional District Judge, Faisalabad & 02 others
JUDGMENT
Date of Hearing:
18.09.2024
Petitioners By:
Syed Muhammad Shah, Advocate
Respondent No. 3 By:
Mr. Ghulam Murtaza Ch., Advocate
Mr. Umair Abbas, Advocate
Mr. Tariq Umar Gill, Assistant Attorney General
Mr. Jahanzeb Inam, Additional Advocate General
ABID HUSSAIN CHATTHA, J: This constitutional Petition is directed
against the impugned Order and Judgment dated 13.09.2023 and 31.10.2023
passed by Judge Family Court / Executing Court and Additional District
Judge, Faisalabad, respectively.
2.
Brief facts of the case are that the Petitioners instituted a suit for
recovery of maintenance allowance and dowry articles against Respondent
No. 3 (the “Respondent”) which was partially decreed by the Family Court
vide Judgment and Decree dated 03.09.2018. The Petitioners and the
Respondent preferred cross appeals against the said Judgment and Decree.
The Appellate Court dismissed appeal of the Respondent while appeal of the
Petitioners was partially allowed vide consolidated Judgment and Decree
dated 18.03.2019, thereby, ordering modification in the Decree of the
Family Court. Both the parties filed separate W. P. Nos. 22863 and 23430 of
2019 before this Court which were partially allowed and the Judgment and
Decree stood further modified. Statedly, the matter has attained finality up to
the level of the Supreme Court of Pakistan.
2
W. P. No. 7340 / 2024
3.
During execution proceedings, the Respondent filed an
Objection Petition before the Executing Court seeking calculation of paid
amount of maintenance allowance with reference to 10% annual increase
awarded to the minors in the final Decree under execution by alleging that
the Petitioners are calculating the annual increase on compound basis which
is unlawful since there is no such stipulation in the Decree or the law. It was
maintained that maintenance allowance once decreed by the Court remains
constant and static which merely increases by 10% each year in terms of
Section 17-A(3) of the Family Courts Act, 1964 (the “Act”). Reliance was
placed on cases titled, “Mir Muhammad Khan and 2 others v. Haider and
others” (PLD 2020 Supreme Court 233); “Muhammad Anwar v. Bashir
Ahmad and another” (2014 CLC 1819); and “Kashif Mahmood v.
Additional District Judge and others” (2022 MLD 1762). The said
application was resisted by the Petitioners on the ground that maintenance
allowance fixed by Court is enhanced by 10% after first year and increase
thereupon in the second year is applicable on the cumulative amount of
preceding year, as such, 10% annual enhancement is leviable on compound
basis as contemplated by Section 17-A(3) of the Act. The Courts below by
relying upon the case of Kashif Mahmood (supra) opined that rate of annual
increment in each year is to be calculated on base value of the maintenance
allowance fixed by the Court and not on the enhanced maintenance amount
of previous year arrived at by adding annual increment. Hence, this Petition.
4.
During proceedings of this case, it transpired that two separate
single Benches of this Court in cases titled, “Mian Muhammad Latif v.
Additional District Judge, etc.” (W. P. No. 77557 / 2022) decided on
07.12.2022; and “Sohaib Umar Ilyas v. Judge Family Court, etc.” (W. P.
No. 15888 / 2021) decided on 02.02.2023 expressed the view that annual
increase in maintenance allowance is required to be calculated on compound
basis in terms of Section 17-A(3) of the Act in contrast to the view taken by
another learned Single Bench of this Court in the case of Kashif Mahmood
(supra). Accordingly, constitution of a larger Bench was recommended vide
order dated 30.04.2024, whereafter, the matter was referred to this Bench.
Notice was issued on 16.05.2024 to the Attorney General of Pakistan and
3
W. P. No. 7340 / 2024
Advocate General of Punjab under Order XXVII-A of the Code of Civil
Procedure, 1908 (the “CPC”) seeking assistance to determine the following
question:-
Whether the statutory annual increase of 10% in maintenance
allowance ordained in Section 17-A(3) of the Act will apply on
compoundable or non-compoundable basis?
5.
Learned counsel for the Petitioners and learned Federal Law
Officer favored compound calculation of annual increase on the decreed
amount of maintenance. It was submitted that Section 17-A of the Act is
required to be interpreted in the context of overall scheme of law enshrined
in the Act which is not only beneficial in nature but also emphasizes the
importance of maintenance allowance as the only source of subsistence of
women and children. The provision caters for changed circumstances in
terms of their needs and protects them against inflation and price hike. The
mandatory annual increase of 10% is applicable at a minimum to all
maintenance decrees although the Court is vested with discretion to
prescribe a higher rate. There is no specific stipulation therein regarding
calculation of annual enhancement on base or aggregate value of
maintenance. However, the intent and import of the said provision is that
annual increase of each year is required to be imposed on the cumulative or
aggregate amount of maintenance allowance of the previous year. This is an
obvious conclusion since the Act, in general, and Section 17-A(3) thereof, in
particular, is a beneficial legislation aimed to hedge inflation and devaluation
of currency. Women and children are oppressed class who are entitled to
beneficial interpretation of law which is the intent of legislature in line with
the directive Principles of Policy enunciated under Articles 34, 35 and 37 of
the Constitution of the Islamic Republic of Pakistan, 1973 (the
“Constitution”) as emphasized by the Supreme Court of Pakistan in case
titled, “Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh and 2
others” (2018 SCMR 1885).
6.
Learned counsels further submitted that annual rent increments
under the Punjab Rented Premises Act, 2009 (the “Rent Act”) as a widely
accepted general practice are calculated on compound basis reflecting real
value of money and property appreciation. The Courts in foreign
4
W. P. No. 7340 / 2024
jurisdictions employ compound or index-linked payments in long-term
financial obligations, such as maintenance, to ensure fairness and alignment
with inflation. In case titled, “Sempra Metals Limited (formerly
Metallgesellschaft Limited v. Her Majesty‟s Commissioners of Inland
Revenue and another”, (2007 UKHL 34), the House of Lords ruled in favor
of compound interest on the ground that it accurately reflects the true value
of money over time. In contrast, it was noted that flat interest rates fail to
account for real time inflation and time value of money. Although a
custodial parent can institute a subsequent suit or approach the Executing
Court by filing an application for enhancement in maintenance allowance in
changed circumstances yet the purpose of introducing Section 17-A(3) of the
Act is to protect the decree holder against annual real-time inflation, thus
reducing the occasions to frequently resort to Court seeking enhancement in
maintenance on the ground of increase in inflation and growing needs of
minors. Therefore, by implementing automatic compound increases, the
Court can streamline adjustments in maintenance in a manner that reduces
the need for frequent litigation. This will save costs, time, resources and
emotional stress for decree holders. Such an interpretation would bring
certainty in fixation of maintenance allowance and would lead to financial
stability for the decree holders to meet their evolving needs. Therefore, the
ambiguity in Section 17-A(3) of the Act regarding flat versus compound
annual increase should be resolved in favor of compound calculations which
is a more equitable and efficient approach of adjusting maintenance over
time against inflationary trends and growing needs.
7.
Learned Counsel for the Respondent and Provincial Law
Officer advanced arguments in support of annual increase in maintenance on
non-compoundable or linear basis. It was stated that the Decree under
execution was passed under Section 17-A(2) of the Act which provides for
10% annual increase and like all family decrees, is required to be executed
under Section 13 thereof. Hence, Section 17-A(3) of the Act is not attracted
as the Decree was passed under Section 17-A(2) of the Act. The former
comes into play only when the Family Court fails to prescribe annual
increase. Without prejudice to the above, the intention of legislature to
5
W. P. No. 7340 / 2024
induct Section 17-A(3) in the Act is express and clear that if the Family
Court does not prescribe the annual increment, the „maintenance fixed by the
Court‟ would automatically increase by 10% each year, thus providing for
in-built hedging against inflation. The Family Court is empowered to
determine the quantum of maintenance allowance which remains fixed till
legal entitlement and the said amount annually increases by 10% thereon,
thereby, adequately providing for statutory cushion against price hike and
inflation. In case, the intention of legislature was to provide for compound
annal increase, it could have been expressly specified therein. As such, the
conspicuous and conscious omission cannot be substituted by the Court.
Islamic jurisprudence derived from the Holy Quran as well as case law on
the subject emphasize the importance to strike a balance between the
responsibility to pay maintenance to wife and children on the one hand and
the financial capacity to pay the same on the other hand. Therefore, the
provision of Section 17-A(3) of the Act must be interpreted in a manner to
maintain a balance and proportionality between competing rights. Hence, the
levy of 10% annual increase on compound amount would lead to injustice.
8.
It was further contended that the Rent Act does not provide for
automatic 10% compound increase, rather, it is always with the mutual
consent of landlord and tenant based on lease agreement. Hence, annual
increase in rent does not take effect by operation of any law in contrast to
Section 17-A(3) of the Act. As such, the former cannot be equated with the
latter. Moreover, the comparative example is misconceived inasmuch as the
landlord offers the demised premises against a definite rent which is fixed
with the mutual consent of landlord and tenant but in contrast, payment of
maintenance allowance is a personal right rooted in love and affection of a
person towards his wife and children. Hence, the concept of increase in rent
on compound basis cannot be employed in interpretation of Section 17-A(3)
of the Act. Therefore, the moot point under consideration has been rightly
determined in the case of Kashif Mahmood (supra) particularly, when in the
cases of Mian Muhammad Latif and Sohaib Umar Ilyas (supra), no
definitive finding on the question of law was rendered. This is particularly so
when in cases titled, “Muhammad Iqbal v. Mst. Nasreen Akhtar” (2012
6
W. P. No. 7340 / 2024
CLC 1407); and “Muhammad Akram v. Additional District Judge and
others” (PLD 2008 Lahore 560), the Court opined that the principle of res
judicata embodied in the CPC is not a bar to institute a fresh suit for
enhancement in maintenance allowance due to changed circumstances.
Therefore, if the 10% automatic increase on non-compound basis as per
Section 17-A(3) of the Act is found inadequate in any particular case, the
option to institute a fresh suit for enhancement in maintenance allowance
can be exercised. Hence, the 10% increase in maintenance on compound
basis would be highly unjustified as the same is not the intent and import of
Section 17-A(3) of the Act.
9.
Arguments heard. Record perused.
10.
The relevant part of modified final Decree qua maintenance
amount subject of Objection Petition with respect to calculation of annual
increase of 10% reads as under:
“The plaintiffs No. 2 & 3 being minor children of the defendant
are held entitled to recover maintenance allowance from the
defendant @ Rs. 150,000/- each per month from the date of
institution of suit till their legal entitlement with 10% annual
increment.”
11.
The Decree thus contemplates payment of maintenance at the
rate of Rs. 150,000/- for each minor from the date of institution of suit i.e.
29.03.2014 with 10% annual increase. It did not specify if the annual
increase shall take effect on compound or non-compound basis, thus
triggering the moot question framed for determination. As the pro and
contra arguments revolve around interpretation of Sections 13 and 17-A of
the Act, therefore, it would be advantageous to reproduce the same as under:
“13. Enforcement of decrees.– (1) The Family Court shall pass
a decree in such form and in such manner as may be prescribed,
and shall enter its particulars in the prescribed register.
(2)
If 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
7
W. P. No. 7340 / 2024
directs be recovered as arrears of land revenue, and on recovery
shall be paid to the decree-holder.
(4)
The decree shall be executed by the Court, passing it or by
such other Civil Court as the District Judge may, by special or
general order, direct.
(5)
A Family Court may, if it so deems fit, direct that any money
to be paid under a decree passed by it be paid in such installments
as it deems fit.
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.”
12.
Section 12(2) of the Act empowers the Family Court to
pronounce its judgment and pass the decree after conclusion of trial. Section
13 of the Act is another general provision of law which relates to the
enforcement of all decrees passed under the Act. It obligates the Family
Court to pass a decree in the prescribed form and manner. It also mandates
to record and maintain necessary particulars qua payments and delivery of
property. This is imperative since family decrees by their very nature
involve payment of money on monthly basis and receipt of multiple dowry
articles. Further provisions are made in the Family Courts Rules, 1965
including prescribing of uniform Forms for recording of decrees and
maintaining of the Register of Receipts and Disbursements. Section 13 of
the Act also empowers the Executing Court to direct recovery of unpaid
amounts as arrears of land revenue including the power to effect recovery of
money in installments to ensure execution of decrees.
8
W. P. No. 7340 / 2024
13.
In contrast, Section 17-A of the Act is a specific provision
dealing with suit for maintenance as a special category of family claims.
Section 17-A of the Act in its present form was introduced in the Act
through the Punjab Family Courts (Amendment) Act, 2015 (XI of 2015) dated
18.03.2015. It places maintenance of wife and children at a higher pedestal
than other family claims because maintenance allowance serves as a means
of subsistence and survival for them, intrinsically connected to their right to
life guaranteed under Articles 4 and 9 of the Constitution. Section 17-A(1)
provides for fixation of monthly interim maintenance allowance for wife or a
child on the date of the first appearance of the defendant and failure of the
defendant to pay the same by fourteenth day of each month entails penal
consequences in terms of striking off his defence, thereby, paving the way for
passing of decree for maintenance on the basis of averments in the plaint and
other supporting documents on record of the case. Section 17-A(2) of the Act
postulates that in a decree of maintenance, the Family Court may 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 prescribe the
annual increase in the maintenance. It is evident that necessary discretion has
been vested in the Family Court to cater for the time consumed in decision of
the suit for maintenance and address other relevant circumstances in order to
ensure that an adequate quantum of maintenance is fixed. This provision also
confers discretionary powers on the Family Court to prescribe an annual
increase in maintenance to cater for future needs and requirements of plaintiffs
as well as depreciation in the value of currency in terms of inflation. No caveat
is attached to the power of the Family Court to prescribe such annual increase
in maintenance on compound or non-compound basis and the Family Court is
free to pass a reasonable decree in this behalf depending on the facts and
circumstances of the case.
14.
In the instant case, however, the Court did not specify if annul
increase would apply on compoundable or non-compoundable basis. In such
situations, the operation of Section 17-A(3) of the Act comes into play. This
provision stresses the importance and requirement of prescribing an annual
increase in the maintenance. The provision is couched in negative covenant and
provides that if the Family Court does not prescribe annual increase in the
9
W. P. No. 7340 / 2024
maintenance, the maintenance fixed by the Court shall automatically stand
increased at the rate of 10% each year. At the same time, it prescribes a
statutory threshold or standard that was considered appropriate by the
legislature in case, the Court does not specify the annual increase itself
depending upon the facts and circumstances of a particular case. The Decree
under execution as well as Section 17-A(3) of the Act does not specifically
state if the annual increase would be realized on compoundable or noncompoundable basis. Therefore, the argument that Section 17-A(3) of the Act
has no relevance as Decree under execution was passed under Section 17-A(2)
of the Act requiring execution under Section 13 thereof, is misconceived for the
reason that a simple decree not providing for calculation of annual increase in
maintenance on compoundable or non-compoundable basis requires
interpretation of Section 17-A(3) of the Act which is vividly promulgated to
supply omissions in the decrees for maintenance. This is particularly so when it
is not the case of the Respondent that the Decree under execution required
maintenance to be calculated on non-compound basis. Since the Decree in this
respect is silent and Section 17-A(3) of the Act is ambiguous, therefore,
interpretation of the latter is imperative to give effect to the Decree according
to the mandate of Section 17-A(3) of the Act. Needless to reiterate that Section
13 of the Act only deals with the enforcement of decrees and has no relevance
qua determination of annual increase on decreed amount of maintenance.
15.
There is no cavil to the proposition that Islamic jurisprudence
as interpreted by superior Courts unequivocally hold that maintenance is to
be determined on equitable terms by balancing competing interests, as such,
the financial status, income, resources and estate of a person liable to pay
maintenance is required to be proportionally adjusted against the needs and
requirements of wife and children while fixing the quantum of maintenance.
Nevertheless, questions qua entitlement to maintenance as well as quantum
of maintenance are settled on the basis of facts and evidence from case-tocase basis and the same exercise was undertaken in the instant case.
However, the grant of annual increase on the quantum of decreed
maintenance and its calculation on compound or non-compound basis is
altogether a different question. The rationale to provide annual increase in
maintenance fixed by the Court is rooted in hedging inflation and providing
10
W. P. No. 7340 / 2024
for anticipated future yet inevitable needs and requirements of wife and
children. There is no doubt that quantum of maintenance once fixed after
trial cannot remain stagnant. There may be a host of changed circumstances,
such as, inflation, increased cost of existing needs or new requirements in
wake of growing age when there is a need for revising the determined
maintenance by the Court. It is in this context that the Courts in the cases of
Muhammad Iqbal and Muhammad Akram (supra) held that the principle of
res judicata in the CPC is not applicable to a subsequent suit for
enhancement in maintenance based on changed circumstances since such
circumstances provide a fresh cause of action. In fact, the Supreme Court of
Pakistan in case titled, “Lt. Col. Naseer Malik v. Additional District Judge,
Lahore and others” (2016 SCMR 1821) went as far as to hold that an
application under Section 151 of the CPC seeking enhancement in
maintenance is maintainable in lieu of instituting a separate subsequent suit
in the following words:-
“6….Once a decree by the Family Court in a suit for maintenance is
granted thereunder, if the granted rate for per month allowance is
insufficient and inadequate, in that case, according to scheme of law,
institution of fresh suit is not necessary rather the Family Court may
entertain any such application and if necessary make alteration in the
rate of maintenance allowance.”
16.
The right to institute a subsequent suit or filing of an
application for enhancement in maintenance allowance, however, is always
cumbersome entailing costs, resources and time, thus burdening the wife and
children to frequently resort to Court. It is ostensibly clear that by
introducing substituted Section 17-A in the Act, the legislature intended to
stipulate a comprehensive arrangement with respect to maintenance, thus
empowering the Court to fix interim monthly maintenance, pass a decree
upon failure of the defendant to pay the same, fix maintenance higher than
prayed amount due to afflux of time or upon consideration of relevant
circumstances and prescribe annual increase. To top it all, Section 17-A(3)
of the Act mandated automatic 10% annual enhancement by operation of
law, if the Court failed to prescribe annual increase. This arrangement was
put in place to reduce the occasions for wife and children to have frequent
recourse to Court for enhancement in maintenance, thus accounting for
11
W. P. No. 7340 / 2024
inflation, rising cost of living and evolving requirements of wife and
children.
17.
The legislature while promulgating Section 17-A(3) of the Act
did not specifically provide for compound or non-compound calculation of
prescribed automatic annual increase. In financial transactions, both
compound and non-compound standards are employed in our jurisprudence.
Section 34(1) of the CPC confers discretionary powers upon the Court to
grant costs subject to such conditions and limitations, as may be prescribed,
and to the provisions of law for the time being in force. Section 34(3) of the
CPC further ordains that the Court may give interest on costs at any rate not
exceeding six per cent, per annum, and such interest shall be added to the
costs and shall be recoverable as such.” The Supreme Court of Pakistan in
case titled, “Najm Koreshi v. Chase Manhattan Bank Now Muslim
Commercial Bank Limited, Lahore and others” (2015 SCMR 1461), while
interpreting Section 34 of the CPC recognized the power of the Court to
grant simple or compound interest and opined that interest pendente lite and
further interest are both discretionary reliefs, therefore, unless expressly
ordered in a decree, such interest accrues on principal amount adjudged and
not on the aggregate of that amount with accumulated interest.
18.
In contrast, Section 28 of the Land Acquisition Act, 1894
expressly provides for compound interest on adjudged compensation at the
rate of eight percent from the date of possession of acquired property.
Similarly, Section 5-A(1) of the Punjab Urban Rent Restriction Ordinance,
1959 (since repealed) proclaimed that “the rent of a non-residential building
shall stand automatically increased at the end of every three years of its
tenancy by twenty-five percent of the rent already being paid by the tenant”
thus, stipulating enhancement in rent on the immediately preceding or
prevalent rent. However, Section 6(1)(c) of the Rent Act in vogue leaves the
matters qua rate of rent, rate of enhancement due date and mode of payment
of rent to the mutual consent of the landlord and the tenant to be determined
through the tenancy agreement. Notwithstanding the same, practically and as
a generally accepted trade practice, enhancement in rent is actualized on the
last preceding rent and not on the original amount of rent fixed. It, therefore,
12
W. P. No. 7340 / 2024
follows that both compound and non-compound calculations are part of our
jurisprudence. At times, it is expressly provided by law or otherwise it is left
at the discretion of the Court depending upon the facts and circumstances of
the transaction. Therefore, the ambiguity in Section 17-A(3) of the Act can
be best resolved by analyzing the scheme of law enshrined in the Act in the
context of nature of maintenance claim based on the guiding principles of
fairness, equity and justice.
19.
The Act has been promulgated for the establishment of Family
Courts for expeditious settlement and disposal of disputes relating to
marriage, family affairs and other matter connected therewith. In furtherance
of the stated objective, a convenient and flexible procedure has been
prescribed in the Act for time bound adjudication of a family suit. Strict
rules of procedure are dispensed with as Section 17(1) of the Act postulates
that save as otherwise expressly provided by or under the Act, the provisions
of the Qanun-e-Shahadat Order, 1984 and the CPC, except Sections 10 and
11 thereof, shall not apply to proceedings before any Family Court in respect
of Part I of Schedule to the Act. The superior Courts in view of the intent,
purpose and objective of the Act have consistently adopted a liberal and
beneficial approach in interpretation of various provisions of the Act. In
Saif-ur-Rehman case (supra), the Supreme Court of Pakistan while
interpreting Section 14(2) of the Act underscored the need of purposive
interpretation of the Act in the following words:
“10. …….It is now settled law that a purposive rather than a
literal approach to interpretation is to be adopted while
interpreting Statutes. An interpretation which advances the
purpose of the Act is to be preferred rather than an
interpretation which defeats its objects. Reference, in this
behalf, may be made to the judgments reported as Federation of
Pakistan through Ministry of Finance and others v. M/s. Noori
Trading Corporation (Private) Limited and 14 others (1992
SCMR 710) and Hudabiya Engineering (Pvt.) Limited v.
Pakistan through Secretary, Ministry of Interior, Government
of Pakistan and 6 others (PLD 1998 Lahore 90).
11.
The second aspect of the Family Courts Act, 1964 and
the Rules framed thereunder as amended from time to time
would reveal its gender sensitivity. A glance at Section 3 of the
Act of 1964 reveals that women Judges are specifically catered
13
W. P. No. 7340 / 2024
for. The residence of the wife can be a determining factor for
conferring territorial jurisdiction, in certain Suits as is evident
from the provisions of Rule 6 of the West Pakistan Family
Courts Rules, 1965. There can be no escape from the fact that
the tone and tenor of the Family Courts Act, 1964 and the Rules
framed thereunder are beneficial in nature. It is an equally
settled law that beneficial provisions in a Statute must be
interpreted liberally in a manner so that the benefit conferred is
advanced rather than frustrated or subverted. Reference, in this
behalf, may be made to the judgments of this Court reported as
Lahore Development Authority through D.G., Lahore and
another v. Abdul Shafique and others (PLD 2000 SC 207) and
Pakistan Engineering Co. Limited, Lahore through Managing
Director v. Fazal Beg and 2 others (1992 SCMR 2166).”
20.
The preamble of the Constitution highlights the importance of
social justice and ordains that adequate provision shall be made to safeguard
legitimate interests of depressed classes. The right to life is protected under
Articles 4 and 9 of the Constitution. The right of maintenance of wife and
children is undoubtedly an inseparable part of right to life as they are
dependent on maintenance for their very survival in terms of their basic
needs and requirements with respect to food, clothing, shelter, schooling and
healthcare. The right to receive maintenance is a legal right granted by law
and enforceable through the Court. It is not merely a personal right based on
love and affection of a person towards his wife and children. Maintenance
must be received by those held entitled to receive the same with dignity in
terms of Article 14 of the Constitution. Even the non-discrimination clause
embodied in Article 25 of the Constitution proclaiming equal protection of
law for all citizens, creates a conscious and conspicuous exception by
proclaiming that the State is not prevented from making any special
provision for the protection of women and children. The directive Principles
of Policy contained in Articles 34, 35 and 37 of the Constitution particularly
call upon the State to ensure full participation of women in all spheres of
national life; protect marriage, the family, the mother and the child; promote
special care, educational and economic interests of backward classes; and
ensure inexpensive and expeditious justice.
21.
Therefore, it is abundantly clear that Section 17-A(3) of the Act
is a beneficial, remedial or curative provision which calls for liberal
14
W. P. No. 7340 / 2024
interpretation. It is triggered when the Court omits to prescribe annual
increase in maintenance or does not expressly specify if annual increase so
prescribed will take effect on compound or non-compound basis while
passing a decree under Section 17-A(2) read with Section 12(2) of the Act.
If the legislature has not specifically provided for compound calculation in
Section 17-A(3) of the Act, it is equally true that the legislature has also not
provided otherwise. The expression „the maintenance fixed by the Court
shall automatically stand increased at the rate of ten percent each year”
ordinarily imply that quantum of maintenance fixed under a decree does not
remain static or constant but is a variable figure which is meant to increase
after each year. After increase of 10% at the end of first year, a new quantum
of maintenance comes in field and the amount gets merged or amalgamated
in the quantum of maintenance fixed by Court. The process is repeated after
each year till the legal entitlement of wife or children under the decree.
Therefore, annual increase of each year is required to be calculated on the
merged amount of last preceding year for the reason that 10% increase is
intrinsically linked with the principal amount and is an inseparable part of
the decree. If the rent is traditionally increased with reference to the last
prevailing rent, there is no reason why maintenance should not be increased
based on the same principle. The compound calculation of maintenance not
only caters for inflation and rising cost of living but also allows to account
for growing needs and requirements of wife and children, thus, reducing the
occasions to resort to Court seeking enhancement in maintenance allowance.
Hence, it is concluded that when a decree of maintenance does not prescribe
an annual increase or is silent qua calculation of prescribed annual
enhancement on principal or aggregate amount of maintenance, Section 17-
A(3) of the Act will come into operation and the Executing Court shall
calculate the due decreed amount on compound basis.
22.
Before parting, we note that in the case of Kashif Mahmood
(supra), it has been aptly held that Section 17-A(3) of the Act shall apply to
all pending proceedings from the date of its promulgation and the finding
contained therein to this extent is fully endorsed.
15
W. P. No. 7340 / 2024
23.
In view of the above, this Petition is allowed; the impugned
Order and Judgment dated 13.09.2023 and 31.10.2023 are set aside; and
consequently, the Objection Petition of the Respondent stand dismissed. The
Executing Court is directed to enforce the Decree under execution in
accordance with law. However, it is clarified that this Judgment will only
apply to pending proceedings and shall not affect the past and closed
proceedings which have attained finality.
24.
The Registrar of this Court is directed to transmit a copy of this
Judgment to all District Judges of the Province of Punjab for its circulation
to all Family Courts within the jurisdiction of respective Districts for
information. A copy of this Judgment shall also be sent to Secretary Law,
Government of the Punjab for consideration of initiation of appropriate
amendment in the Act to bring clarity in Section 17-A of the Act in the
manner deemed appropriate by the Legislature.
(Shams Mehmood Mirza)
Judge
(Abid Hussain Chattha)
Judge
Approved for Reporting.
Judge
Judge
Announced in Open Court on 09.10.2024.
Judge
Judg