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| Maintenance suit in two countries. |
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Must read judgment.
PLJ 2026 Islamabad 170
Present: Muhammad Azam Khan, J.
MUHAMMAD MUNEEB ARSHAD--Petitioner
versus
Mst. AMMARA MAHROOF, etc.--Respondents
W.P. No. 5459 of 2025, decided on 3.2.2026.
Family Courts Act, 1964 (XXXV of 1964)--
----S. 17-A--Constitution of Pakistan, 1973, Art. 199--Civil Procedure Code, 1908 (V of 1908), S. 11--Striking off defence--Parallel foreign proceedings--Maintenance--Res judicata--Doctrine of election--Double recovery--Jurisdiction--Maintainability--Non-speaking order--Judicial propriety--Comity of courts--Overlapping liability--Unjust enrichment--Parallel maintenance proceedings in Pakistan are impermissible where a competent foreign court has already fixed and is enforcing same liability; striking off defence under S. 17-A without addressing such overlap and compliance is unlawful--Where a competent foreign court had already assumed jurisdiction and its orders were being complied with, Family Courts in Pakistan were required to avoid parallel proceedings that would result in overlapping or competing obligations for same liability and period--It was a settled principle of law that where two fora were invoked for substantially same relief on same obligation, law did not permit a litigant to ‘double run’ same claim so as to obtain two enforceable streams for one liability--It was a settled principle that before proceeding on merits, Courts were required first to examine and determine maintainability of proceedings, particularly where a specific legal objection as to jurisdiction/maintainability had been raised by opposite party--The Courts were required to first address and determine objections going to root of maintainability and jurisdiction, especially where such objections were specifically raised by a party--Questions relating to forum, parallel proceedings, prior adjudication, and competence of Court were not matters of mere technicality; rather, they struck at very authority of Court to continue with lis in manner sought--Such objections, therefore, were required to be meaningfully adjudicated at threshold or at earliest appropriate stage, rather than being deferred casually to end of trial if material on record already warranted judicial scrutiny--Impugned Order was found to be a non-speaking order--Such an Order passed by learned Trial Court, therefore, could not sustain penal consequence of Section 17-A of West Pakistan Family Courts Act, 1964--It was a settled principle of law that if foundation had been built upon illegality, entire superstructure upon by a competent forum between same parties on same cause of action, Family Courts were required to decline to reopen controversy as matter was hit by principle of “res judicata”. [P. 182] B
Striking off defense--
----Striking off defense was a penal procedural consequence, which was required to follow only upon a clear, reasoned satisfaction of willful default--Although Section 17-A empowered Family Court to strike off defense and decree suit upon failure to pay interim maintenance, such provision did not confer unfettered or arbitrary power upon Court to proceed mechanically. [P. 189] E
Mr. Akhtar Hussain Bharwana, Advocate for Petitioner.
Mr. Awais Mehmood Awan, Advocate for Respondents No. 1
& 2.
Ms. Amna Danial Khawaja, Judicial Law Clerk for Assisted.
Family Court is not only
empowered, but obliged to give effect to
the bar of res judicata, so that the same
parties are not permitted to litigate
the same matter repeatedly under the
guise of fresh proceedings. In this
regard, reliance is placed on the case
titled “Dr. Ayesha Sabir versus
Fida-ul-Haq Yasir and 3 Others”
“8. The main question to be addressed herein was as to whether the claim of petitioner is hit by Section 17 read with Section 11, C.P.C. Section of the Family Courts Act, 1964 pertains to Sections 10 and 11 of the C.P.C. which are not barred by the Family Courts Act, 1964. Apart from these two Sections the provisions of the C.P.C. are barred by the Family Courts Act, 1964, although the principles do apply. However, here there is no contention regarding the principles. It is very specifically contended by respondents 1 and 2 that having once agitated the issue in Canada and getting relief as prayed for, the petitioner is barred from putting up the same claims again before a Court in Pakistan. I am inclined to agree with this view of the Courts below. The case of the petitioner is hit by res judicata. Once having claimed something and the matter having been decided by a Court of competent jurisdiction, she is barred from bringing it up again in Pakistan. All her claims have already been settled. I do grant that the suit was maintainable up to the extent of dowry articles, which in any case Respondent No. 1 has agreed to return to the petitioner. Her suit pertained to recovery of dowry articles and her mentioning the jewelry again as dowry articles is not justifiable.”
(Emphasis Supplied)
-
Section 17 of the West Pakistan Family
Courts Act, 1964 read with Section 11
of CPC embody the rule that where a
dispute has already been adjudicated
upon by a competent forum between the
same parties and on the same cause of
action, the Family Courts must decline
to re-open the same controversy. The
Order dated 12.09.2024 passed by the
learned District Court, Ballinasloe,
Ireland states that no further
application in relation to varying
maintenance be made for two years,
thereby settling the matter qua
maintenance payable towards the
Respondent No. 2/Minor inter se the
parties. In this regard, it is important
to clarify herein that the Explanation
of Section 10, therefore, does not apply
to the facts of the instant case as
the matter qua maintenance payable
towards the Respondent No. 2/Minor has
been settled by the learned District
Court, Ballinasloe, Ireland. Keeping in
view the approach taken in the judgement
cited supra, this Court is also fortified
in holding that once parties had
surrendered to the jurisdiction of a
competent Irish Court and the claim had
been finally adjudicated there, the
Respondent No. 1/Plaintiff No. 1 was
barred from raising the same claim again
before Courts in Pakistan, as the matter
would be hit by the principle of
res judicata. The controlling logic is
that once a claim inter se the same
parties has been adjudicated by a
competent foreign Court and relief has
been granted/settled, the same Claimant
cannot pursue the same claim again before
Courts in Pakistan so as to create
duplicative recovery and inconsistent
outcomes. Hence, applying the same
principle herein, where the maintenance
payable towards the Respondent No.
2/Minor has already been judicially
fixed by the learned District Court,
Ballinasloe, Ireland vide Order dated
12.09.2024 and payments are being made
in compliance, the proceedings undertaken
by the learned Trial Court in Pakistan
ought not to be allowed to operate as
a second judicial channel for the very
same maintenance liability, because
that would defeat finality, invite
inconsistency, and prejudice the payer
through duplicative burden. -
Furthermore, a litigant seeking relief
must approach the Courts with clean
hands and make full candid disclosure
of all material facts. In the present
matter, the non-disclosure by Respondent
No. 1/Plaintiff No. 1 before the learned
Trial Court of the parallel proceedings
and maintenance orders passed by the
Irish Family Court materially affects
the fairness of the proceedings, and
disentitles her from securing overlapping
relief without judicial scrutiny. It is
also significant to mention herein that
the orders passed by the competent Irish
Family Court fixing maintenance were
never shown to have been challenged,
set aside, or suspended before any
competent forum. In the absence of any
such challenge by the parties,
the subsisting foreign orders and
payments made thereunder could not have
been ignored while assessing the
Petitioner/Defendant’s alleged default
and the propriety of parallel
proceedings. -
Therefore, while jurisdiction under Rule
6 may exist, parallel cognizance and
concurrent enforcement on the very same
maintenance liability, already fixed
and being complied with under the foreign
Court’s orders, cannot be sustained, as
it defeats finality, invites conflicting
obligations, and violates judicial comity
and orderly administration of justice.
Thus, the findings on Moot Question No.
2 are answered in the negative in the
facts of the present case. The Family
Courts in Pakistan ought not to proceed
in a manner that creates parallel
maintenance liability for the minor when
the same obligation has already been
judicially fixed and is being complied
with abroad.
POINT NO. 3:
-
The doctrine of election is a rule of
fairness designed to prevent a litigant
from simultaneously pursuing parallel
remedies or parallel fora for
substantially the same relief in a manner
that multiplies proceedings and exposes
the opposing party to double recovery in
practical terms. It is a settled
principle of law that where two fora
are invoked for substantially the same
relief on the same obligation, the law
does not permit a litigant to “double
run” the same claim so as to obtain two
enforceable streams for one liability.
Election, in such a scenario, is not
an empty technicality, it is rather a
rule of fairness and coherence. In the
cross-border family dispute, once the
Respondent No. 1/Plaintiff elected to
pursue maintenance for the Respondent
No. 2/Minor before the learned District
Court, Ballinasloe, Ireland and obtained
a judicial fixation of the father’s
liability there, she could not, as
a matter of principle and propriety,
pursue an overlapping claim for the
same maintenance liability before the
Courts in Pakistan so as to expose the
father to concurrent coercive mechanisms
for the same obligation. The doctrine
of election does not deny the minor’s
right to maintenance, it rather prevents
the maintenance jurisdiction from being
used as a means of multiplying
enforcement streams for the same
obligation. Reliance in this regard is
placed on “Chief Executive Officer NPGCL,
GENCO-III, TPS Muzafargarrah versus
Khalid Umar Tariq Imran and others”
(2024 SCMR 518), wherein the August
Supreme Court of Pakistan elaborated on
the doctrine of election in the following
terms:--
“11. It is a well-settled proposition of law that when an aggrieved person intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst the actions or remedies available under the law. The choice to initiate and pursue one out of the available concurrent or co-existent actions or remedy from a forum of competent jurisdiction vest with the aggrieved person. Once the choice is exercised and the election is made then the aggrieved person is prohibited from launching another proceeding to seek relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by the Courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in Order II, rule (2), C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order 1984 and principles of res judicata as articulated in Section 11, C.P.C. and its explanations. Reference in this regard may be made to the case of Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others (PLD 2018 Supreme Court 828).
Giving a choice to select a remedy from among several co-existent and/or concurrent remedies prevents the recourse to multiple or successive redressals of a singular wrong or impugned action. It also provides an opportunity for an aggrieved person to choose a remedy that best suits the given circumstances. Such a rule of prudence has been developed by Courts of law to reduce the multiplicity of proceedings. As long as a party does not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked. Once the election is made then the party generally, cannot be allowed to hop over and shop for one after another co-existent remedies.”
(Emphasis Supplied)
-
The doctrine of election, as explained,Thus, in this context, the doctrine of
is rooted in recognized principles of
waiver/abandonment, estoppel, and res
judicata, and is intended to curb
multiplicity of proceedings and prevent
parties from hopping over forums and
shopping successive remedies for the
same grievance. Applying the said
principle to the present case, once the
Respondent No. 1/Plaintiff No. 1 invoked
the foreign forum qua the maintenance
payable towards the Respondent No.
2/Minor, and obtained operative orders
fixing the father’s liability, which,
on the record, is being complied with
through regular payments, the Respondent
No election assumes particular significance
because the object of maintenance
proceedings reflects welfare and
subsistence, not the creation of
duplicative financial obligations for
the same period and the same entitlement.
Permitting parallel pursuit in
Pakistan, despite the existence of
subsisting foreign maintenance orders
and receipt of payments thereunder,
would effectively allow the Respondent
No. 1/Plaintiff
No. 1 to multiply enforcement streams for a single liability and to secure two executable outcomes on the same claim, which the doctrine of election is designed to prevent. Therefore, while the Courts in Pakistan may not be inherently divested of jurisdiction under Rule 6, the Respondent No. 1/Plaintiff’s election of the foreign forum for fixation/enforcement of minor maintenance operates to preclude parallel pursuit of the same relief in Pakistan in a manner that results in duplication and prejudice to the Petitioner. Hence, the findings on Point No. 3 are in the affirmative. The Respondent No. 1/Plaintiff No. 1 was required to elect a single forum for the enforcement of the same maintenance claim. Parallel pursuit is impermissible.
POINT NO. 4:
-
There is no cavil to the proposition
that maintenance is fundamentally
welfare-driven and intended to secure
the subsistence of the child, however,
it is not meant to become an instrument
for extracting duplicative sums for the
same liability. Where a father is already
paying maintenance under the subsisting
orders of a competent foreign Family
Court, and payment is supported through
documentary proof, compelling additional
payment through parallel proceedings
before the Family Courts in Pakistan,
without first addressing the overlap
effectively taxes the same obligor twice
on the same obligation. Such duplication
is inherently prejudicial as it forces
the payer to simultaneously satisfy two
coercive regimes for the same months,
thereby creating an unjust and
disproportionate burden. At the same
time, it risks unjust enrichment if the
recipient is allowed to recover
two parallel amounts attributable to
the same maintenance entitlement for
the same period, without disclosure
and without adjustment. If such
duplication is permitted, the
prejudice is twofold. First, the
father is placed under the risk of
simultaneous sanctions in different
fora for the same months, coercive
enforcement abroad on the one hand,
and strike-off/penal consequences under
Section 17-A in Pakistan on the other,
despite evidence that the child is in fact
being maintained. Second, the very
logic of interim maintenance, i.e.,
to secure subsistence pending
adjudication is distorted into a means
of collecting amounts over and above
what has already been judicially fixed
and being received for the same
period. That is precisely why, as a
matter of fairness and orderly justice,
a Court seized of such a claim must
not permit parallel recovery without
first determining the overlap at the
preliminary stage. The Court is not
to facilitate multiplicity that
results in unjust enrichment,
it is to balance welfare with fairness.
Therefore, any approach that ignores
foreign Court orders and receipts,
fails to require disclosure, and proceeds
to penalize the payer as a defaulter
without addressing the overlap, amounts
to permitting an abuse of process
and is inconsistent with the equitable
foundation of family jurisdiction. -
It is a settled principle that before
proceeding on merits, the Courts must
first examine and determine the
maintainability of the proceedings,
particularly where a specific legal
objection as to jurisdiction/
maintainability has been raised by the
opposite party. Reliance in this regard
is placed on “Syed Reza Ali Shah versus
XII Model Civil Appellate Court,
District South, Karachi and 2 others”
(PLD 2022 Sindh 171). In the present
case, such an objection having been
expressly taken, the same required proper
adjudication at the threshold before
resorting to penal consequences.
It is a settled principle of law that
before proceeding further on merits
in any suit, petition, appeal or
application, the Courts must first
address and determine objections going
to the root of maintainability
and jurisdiction, especially where such
objections are specifically raised by
a party. Questions relating to forum,
parallel proceedings, prior adjudication
, and competence of the Court are not
matters of mere technicality, rather
they strike at the very authority of
the Court to continue with the lis in
the manner sought. Such objections,
therefore, ought to be meaningfully
adjudicated at the threshold or at the
earliest appropriate stage, rather than
being deferred casually to the end of
trial if the material on record already
warrants judicial scrutiny. -
In the present case, the record reflects
that the Petitioner/Defendant has been
paying maintenance towards the welfare
of the Respondent No. 2/Minor at the rate
of €125 per week pursuant to an Order
dated 12.09.2024 passed by the competent
Court in Ireland, and documentary proofs
of such remittances have been placed on
record. In these circumstances,
permitting the Respondent No. 1/Mother
to simultaneously pursue and enforce a
parallel maintenance stream in Pakistan
for the same minor, without first
disclosing the full particulars of the
foreign proceedings and without a clear
mechanism of credit/adjustment for the
amounts already being received, would
operate as an impermissible double burden
upon the Petitioner/Defendant.
Such duplication would expose the
Petitioner/ Defendant to overlapping
financial liabilities and coercive
consequences in two jurisdictions for
the same obligation and period,
notwithstanding that the child’s
maintenance, on the face of the record,
is already being met through the foreign
Court-directed payments. -
Moreover, if the Respondent No.
1 is allowed to obtain and enforce a
second executable order in Pakistan for
the same maintenance entitlement, while
also continuing to receive maintenance
under the Irish Court orders, this would
tend toward double recovery for the same
liability and period, which the law does
not countenance. Maintenance proceedings
are designed to secure welfare, not to
enable accumulation beyond entitlement.
Therefore, in applying this principle to
the present case, the learned Trial
Court was required to address the overlap
in jurisdiction, ensure transparency
regarding the foreign payments,
and decline duplicative enforcement,
so that the Petitioner/Defendant is not
compelled to be taxed twice for the
same maintenance liability. In the
absence of such adjustment, parallel
enforcement would not only prejudice
the Petitioner/ Defendant, but would
also create a real risk of unjust
enrichment in favour of Respondent
No. 1/Plaintiff under the guise of
maintenance for Respondent No.
2/Minor. -
If a party is already receiving
maintenance under orders of a
foreign Court and, without candid
disclosure of such proceedings and
payments, seeks the same or substantially
similar relief before a Court in
Pakistan for the same period and
liability, the Court would be justified
in treating such conduct as an abuse
of process. The law does not countenance
double recovery in the garb of parallel
proceedings. At the very least, full
disclosure and lawful adjustment of
payments are indispensable so that no
unfair enrichment results and no person
is burdened twice over in respect of
the same maintenance obligation. -
Therefore, even assuming Pakistani
jurisdiction exists, the Court must
ensure that its orders do not cause
duplicative burden. The proper
judicial response is to decline
parallel enforcement of an already
settled maintenance liability. Any
approach that ignores subsisting
foreign payments and treats the payer
as a defaulter merely because the payment
was made under a foreign order,
while the child’s maintenance is
demonstrably being met, converts welfare
jurisdiction into an inequitable
duplication and cannot be sustained,
which will risk transforming maintenance,
a welfare right, into an inequitable
duplication. The law leans against
such an outcome as it undermines
certainty and creates conflicting
duties, it prejudices the relief by
exposing the party liable to pay
maintenance towards the minor to
multiple sanctions for one obligation,
and it potentially enriches the
recipient beyond the adjudicated
entitlement for the same period and
same liability. Thus, any approach that
ignores proven foreign compliance and
proceeds mechanically to penal
consequences under Section 17-A of
the West Pakistan Family Courts Act,
1964, is inconsistent with fairness
and the welfare-based character of
family jurisdiction.
POINT NO. 5:
-
Judicial propriety, particularly
in family jurisdiction involving
cross-border litigation, demands that
the Courts act in a manner that preserves
coherence of the judicial process,
avoids conflicting commands,
and maintains the integrity of
adjudication. Where a foreign Court of
competent jurisdiction has already
assumed cognizance of the matter,
fixed the obligor’s maintenance
liability, and that liability is
being complied with through regular
payments, the Family Courts in Pakistan,
while not necessarily divested of
jurisdiction under Rule 6, must still
exercise powers with restraint and
structured reasoning. The purpose is
not to abdicate jurisdiction, but to
prevent the judicial system from becoming
a vehicle for inconsistent or
overlapping obligations imposed upon
the same person for the same liability
and the same period. If a Family Court
proceeds mechanically, without weighing
the effect of subsisting foreign orders
and proven compliance therewith, it risks
undermining comity, fostering
contradictory outcomes, and eroding
public confidence in the administration
of justice. The duty of the Court,
therefore, is to ensure that any
interim or final directions are passed
after due consideration of the entire
factual matrix, including prior
adjudications and payments, and in a
manner that prevents duplication and
maintains orderly justice. -
In the present case, judicial proprietyThis Court, however, is not laying
required that the learned Trial Court,
before invoking the penal consequence
under Section 17-A of the West Pakistan
Family Courts Act, 1964, should have
first determined whether the alleged
default was truly willful in the face
of the material placed on record showing
maintenance being paid pursuant to
orders of the Irish Court. A reasoned
judicial approach would necessarily have
examined whether the foreign orders down as an absolute proposition that
the Courts in Pakistan, in no
circumstance, may entertain a claim
of maintenance merely because proceedings
have been undertaken abroad. Rather,
the finding is confined to the peculiar
facts and circumstances of the present
case, wherein maintenance qua Respondent
No. 2/Minor has already been settled by
the competent Court in Ireland, and
payments are being made thereunder.
In such a situation, permitting a
parallel claim for the same maintenance
liability and overlapping period before
the learned Family Court in Pakistan,
without proper disclosure and adjustment,
would offend principles of judicial
propriety and fair process, and would
expose the Petitioner/Defendant
to duplicative financial burden.
POINT NO. 6:
-
The instant petition primarily
assails the Impugned Order dated
10.12.2025, whereby the Petitioner
/Defendant’s defense was struck off under
Section 17-A of the West Pakistan Family
Courts Act, 1964. Striking off defense
is a penal procedural consequence,
which must follow only upon a clear,
reasoned satisfaction of willful default.
In the present case, the record placed
before this Court demonstrates that
the Petitioner/Defendant has been making
regular payments pursuant to the foreign
Court’s order qua maintenance, and such
payments were supported by documentary
proofs. In such a situation, treating
the Petitioner/Defendant as a willful
defaulter, without dealing with the
existence and effect of foreign
maintenance orders and without
recording reasons