THE CONSTRUCTION, IMPLICATION, AND APPLICAPABILITY OF SECTION 17-A OF THE FAMILY COURTS ACT OF 1964

By:
FAIZ RASUL KHAN JALBANI,
Advocate

The function of a lawyer is not to know what the law of the land was yesterday, still less what it was centuries ago, or what it ought to be tomorrow, but to know and be able to state what are the principles of law which actually and at the present day exist in the country.

A provision of law, howsoever plain and simple on the face of it, may lead to a sort of maze in which the wanderer is confronted with enigmatic situations. The Section 17-A of the Family Court Act, 1964 is plainly plain and unambiguous. The only question arises as to the scope of exercise of discretion by the Family Court and the law wherefrom the very discretionary power vested in the Family Court originates.

It is evident from a bare perusal of the preamble to the Family Courts Act, 1964 that this act is procedural in nature. Therefore, when a Family Court sits to try a lis falling in any of the item of Part-I of the Schedule given in the said Act, it proceeds in accordance with the substantive law applicable to the respective parties in the lis i.e. either the parties are Muslims or otherwise. Section 5 (1) of the Family Court Act also reads as under:--

"Subjcct to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961 the Family Courts shall have exclusive jurisdiction to entertain hear and adjudicate upon matters specified in the Part-I of the Schedule. "

My concern, in this essay, is to the extent of construction, implication and applicability of Section 17-A of the Family Courts Act, 1964 in the case the parties to the lis are Muslims. The fact as reflected from the Section 5 ibid is that the Family Court shall exercise its powers under the Family Court Act, 1964 subject to the provisions of the Muslim Family Laws Ordinance, 1961.

It also necessitates here to refer Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, which reads as under:--

"Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or dastardly, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provision of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims. "

Now it becomes obvious that when the parties to a lis are Muslims and the lis relates to the matters such as marriage, divorce and family relations etc. the Family Court shall be guided and led by the provisions of the Muslim Personal Law.

Before subjecting the Section 17-A of the Family Court Act, 1964 to a critical analysis, the reproduction of the same, at this juncture, seems to be extremely important. The same reads as follows:--

"At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the 14^th of each month, failing which the Court may strike off the defence of the defendant and decree the suit. "

Admittedly the non-compliance of the order passed by the Family Court renders to face penal consequences. But simultaneously, the mind comes to an irresistible conclusion that the word "may pass" employed in the said section is of much significance and the legislature has well worded the said section in its own wisdom.

The Family Court, indeed, has discretion, at any stage of the proceedings in a suit for maintenance, to pass an interim order for maintenance. Now the question is whether it is unqualified will of the Family Court to pass or not to pass such an order or the Family Court is bound to exercise its discretion within the limits prescribed by the Muslim Personal Law while passing or not passing such order???

The solution to the abovesaid question is not hard to answer, but it needs to take pains to study the relevant provisions of the different laws regulating the matters such as of marriage, divorce, dower, family relations etc. I hereby gallop over to Section 9 of the Muslim Family Laws Ordinance, 1961. It is provided in this section that if any husband fails to maintain his wife adequately or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available, apply to the Chairman, who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.

In view of the above, another question arises as to whether the right of the wife to maintenance is qualified or unqualified?; whether the husband is bound, irrespective of the facts and circumstances suggesting otherwise, to maintain his wife?

For sake of resolving the issue it is relevant to refer some provisions laid down in the Muhammadon Law. It is provided in section 3 of the Muhammadon Law that the rules of Islamic Law that have been expressly directed to be applied to Muslims are to be applied except in so far as they have been altered or abolished by the legislative enactment. Section 276 of the Muhammadon Law is reproduced hereinbelow for convenience, which reads as under:--

"The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse) so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses to him, or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower, or she leaves the husband's house on account of his cruelty. "

Now, under the spot-light of what has been narrated hereinbefore, it gets clarified that the Family Court while exercising its powers under Section 17-A of Family Court Act, 1964 is bound to take into consideration the provisions and rules of Islamic Law. Therefore, when a suit for maintenance is filed the Family Court is not supposed to straightaway pass an interim order for maintenance without considering the objective facts of the case and the rules and provisions of Islamic Law. It further has become crystal clear that the right of the wife to maintenance is qualified and there are situations when the law does not bind the husband to maintain his wife. In other words it may be said that the right of the wife to maintenance is not original in nature, but is dependent and consequent upon the fact whether she is faithful to the husband and obeys his reasonable orders.

In "Juridical Principles in Islam" authored by M.H. Qureshi it is narrated at page 115 that, as a wife, her responsibilities are different. She has to take care and attend to husband's requirements. She has to be an obedient wife. Prophet Muhammad (P.B.U.H.) said, "a virtuous wife is a man's best treasure".

It is not out of place to refer a Text Book i.e. Sex & Sexuality in Islam. The author namely Muhammad Aftab Khan, under the heading "legal implications of marriage" has narrated that the legal significance of the act of marriage reflects the importance that the society has placed on the union. The newly weds not only undergo a change in community status but also, in their new relationship, a radical change in legal status. With the conclusion of the marriage ceremony a binding agreement has in fact been arrived at between the two parties and the state. Husband and wife have assumed obligations and are entitled to certain rights. Wife traditionally is obliged to live with her husband in any place of his choosing. Additionally, she is expected to provide domestic services, including housekeeping, childcare, and food preparation. She is entitled to the exclusive right of sexual intercourse with her husband. Property and estate rights from her husband also accrue to her. In return, the husband's contractual obligations are to provide shelter, food, and other support for his wife and children, who may result from the marriage.

It is proven that the husband is to perform his obligations in return to what has been done/performed by the wife to which the husband is entitled. Even otherwise the mandate of law laid down in NLR 1992 CLJ 285, PLD 1963 Dhaka 583, PLD 1981 Lahore 761, advocates the view that the wife would not be entitled to maintenance if she refuses without lawful justification to live with her husband.

Before parting with, I humbly conclude that the powers conferred upon the Family Court under Section 17-A, of the Family Court Act, 1964 are qualified and are subject to consideration of the law, rules and facts as stated hereinbefore. The right of the wife to maintenance is not original in nature, but is dependent and consequent upon the fact whether she is faithful to the husband and obeys his reasonable orders or not. These facts should be taken into consideration by the Family Court while passing the interim order for maintenance because it is a settled principle of law that the interim relief cannot be granted when the final relief cannot be allowed. I also humbly request and invite the concerned corners to advert to what has been attempted to be conveyed to by this essay.

I thank you very much.