LAHORE: The Lahore High Court has observed that the family courts are not properly adhering to the relevant law (section 17A-4 of the Family Courts Act, 1964) to decide time-consuming litigation in the shape of family suits involving issue of maintenance allowance.

“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,” says Justice Jawad Hassan setting aside the judgment and decree of two lower courts to the extent of maintenance allowance of a minor only.

In his 28-page judgement, Justice Hassan regrets that the adjudications in the family courts reflect their detachment from the realities of the current socio-economic situations of the country.

He notes that stereotype orders are passed arbitrarily and mechanically, that too, in deviation from 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.

The judge says a family court, to fix maintenance allowance as per the section 17-A(4) of the Act, 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.

He holds that the family courts should keep in consideration the basis of averments in plaint, other supporting documents on record, summoning all relevant documentary evidence, determining the estate and determining resources of the defendant before passing the interim and final maintenance allowance.

Justice Hassan maintains that a family court is legally obliged to assess the quantum of maintenance as per dictate and criteria mentioned in section 17-A (4) of the Act.

He notes that the 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.

He says it is neither unusual nor whimsical for the family courts to delve into the relevant documentary evidence dealing with the financial status of a defendant (husband) to determine the maintenance.

He observes that the family courts must adopt a therapeutic and holistic approach to the court structure and processes, as well as to decision making in family disputes.

He explains that 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.

Justice Hassan has directed the registrar of the LHC to make sure transmission of his judgment to all the district judges of Punjab for its circulation amongst the family courts for strictly following provisions of the Family Courts Act 1964 in true spirit whilst dealing with the issue of fixing maintenance allowance.

Published in Dawn, October 6th, 2022

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