26/11/2022
فیملی مقدمات میں سالانہ اضافہ کب سے لاگو ھوگا
2022 MLD 1762
Sub-section (3) of Section 17A of the Family Court Act is a provision the application whereof is conditional upon failure or omission of the Family Court to prescribe the annual increase while fixing the maintenance. It is also manifest that the increase contemplated under the said provision is a mandatory one and the Court is left with no discretion in that regard. Needless to observe that any increase under the above provision is coextensive in duration with the entitlement for maintenance. Further, the increase in maintenance under Section 17A(3) of the Act is automatic in the sense that no decree is required to be passed and the same is recoverable by the executing court while enforcing the statutory obligation. The rate of annual increase in the maintenance has also been fixed by the legislature to be at ten percent each year and the base value (i.e. the maintenance fixed by the Court) to which such rate of increase applies remains constant throughout the period of application of Section 17A(3) of the Act.
Entitlement to maintenance of wife and children is not only a right recognized by law and the religion of Islam but the same is a part and parcel of rights to life and dignity, as enshrined in Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. Growth of children, the cost of living, change in status of the parties, change in the expenditures incurred based on needs of children are some of the factors which may provide for a fresh cause of action for the children to demand enhanced maintenance allowance. The Superior Courts of the country have ensured nourishing rights of the minors in such a manner that applications for enhancement of maintenance allowance filed subsequent to the decree have been held to be maintainable while observing that maintenance was a continuous process and a person entitled to be maintained had a right to approach the court for adequate maintenance allowance. If maintenance allowance granted by the Family Court was insufficient and inadequate, then institution of the fresh suit was held to be not necessary rather Family Court could entertain an application for enhancement of the maintenance allowance5. Therefore, there has not been any hindrance in the way of person entitled for maintenance to seek enhancement thereof in accordance with changed circumstances. However, the Provincial legislature was empathetic enough to provide an additional cushion in the form of Section 17A(3) of the Act to automatically cover the mistakes/omissions of the Court in terms of mandatory annual increase of the maintenance. The enactment of the above provision, besides making up for the judicial omission to order annual increase in the maintenance for enabling those entitled to cope up with inflation, purports to achieve the objects of reducing burden of costs, delays and toil of litigation and prevent burdening of the judicial system with adjudication in this category of cases. Section 17A(3) of the Act is, therefore, a beneficial and remedial or curative piece of legislation, which must be liberally construed.
By now, it is well settled that in the absence of any stipulation to the contrary, any change in law affecting substantive rights has prospective effect. A prospective statute operates from the date of its enactment conferring new rights. A retrospective statute, on the other hand, operates backwards and takes away or impairs vested rights acquired under existing laws. However, a statutory provision cannot be termed to have been given retrospective effect merely because it affects existing rights or because a part of the requisites for its action is drawn from a time antecedent to its passing or operation thereof is based upon the status that arose earlier.
The provision of Section 17A(3) creates a new statutory right of automatic annual increase in the maintenance fixed by the Court in cases where annual increase has not been prescribed. It does not operate backwards. The fact that statutory prerequisites under Section 17A(3) of the Act (i.e. fixation of maintenance by the Court and omission or failure of the Court to prescribe annual increase in the maintenance) may be drawn from a period prior to the enactment does not render application or operation of the said provision to be retrospective, particularly when the automatic annual increase in the maintenance takes effect from the date of enactment and not the period prior to that.
