12/7/23, 11:32 PM 2022 M L D 1762

2022 M L D 1762
[Lahore]
Before Raheel Kamran, J
KASHIF MAHMOOD---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
Writ Petition No.166 of 2022, decided on 15th February, 2022.
(a) Family Courts Act (XXXV of 1964)---
----S.17A(3)---Maintenance---Annual increase in maintenance---Scope---
Subsection (3) of S.17A of the Family Courts Act, 1964 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---Increase contemplated
under the said provision is mandatory one and the Court is left with no discretion in
that regard---Any increase under the said provision is co-extensive in duration with
the entitlement for maintenance---Increase in maintenance under S.17A(3) of the
Family Courts Act, 1964 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---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 under S.17A(3) of the Family Courts
Act, 1964.
(b) Family Courts Act (XXXV of 1964)---
----S.17A(3)---Maintenance---Annual increase in maintenance---Scope---Provision
of S.17A(3) creates a new statutory right of automatic increase in the maintenance
fixed by the Court in cases where annual increase has not been prescribed, it does
not operate backwards---Fact that statutory prerequisites under S.17A(3) of the
Family Courts Act, 1964 (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.
(c) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Constitution of Pakistan, Arts.9 & 14---Suit for maintenance---
Enhancement of maintenance---Grounds and scope---Entitlement to maintenance of
wife and children is not only a right recognized by law and the religion of Islam but
the same is part and parcel of rights to life and dignity, as enshrined in Arts. 9 & 14
of the Constitution---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

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demand enhanced maintenance allowance---Superior courts of the country have

ensured nourishing rights of the minors in such a manner that applications for
enforcement of maintenance allowance filed subsequently 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 not
necessary rather Family Court could entertain an application for enhancement of
the maintenance allowance---Therefore, there has not been any hindrance in the
way of a person entitled for maintenance to seek enhancement thereof in
accordance with changed circumstances.

Tanveer Aziz v. Additional District Judge and others 2017 YLR 802; Mst.
Kaneez Akhtar v. Abdul Qadoos 2005 MLD 828; Awal Ameer v. Additional District
Judge and others 2013 MLD 1342; Sharafat Ali v. Rehana Kauser and others 2010
MLD 1; Khawaja Muhammad Sadiq v. Mst. Khalida Shafqat Khanam 1969 PCr.LJ
72; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Lt. Col. Nasir Malik v.
Additional District Judge, Lahore 2016 SCMR 1821 ref.
(d) Interpretation of statutes---

----Presumption against retroactivity---Scope---In the absence of any stipulation to

the contrary, any change in law affecting substantive rights has prospective effect---
Prospective statute operates from the date of its enactment conferring new rights---
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 statutes that arose
earlier.
Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa 2015 SCMR 43;
Halsbury's Laws of England (4th Edn., Vol.44 at Para 921) and Vineeta Sharma v.
Rakesh Sharma (2020) 9 SCC 1 ref.
Muhammad Mazhar Iqbal Chatta for Petitioner.
ORDER
RAHEEL KAMRAN, J.----Through this writ petition, the petitioner has
challenged the order dated 10.06.2021 passed by the learned Judge Family Court,
Sadiqabad in execution proceedings as well as the judgment dated 30.10.2021
passed by the learned Additional District Judge, Sadiqabad in appeal whereby ten
percent annual increase in the maintenance of respondent No.4 under Section
17A(3) of the Family Courts Act, 1964 (hereinafter to be referred as the "Act") has
been allowed with effect from the date of promulgation of the Act.
2. Relevant facts in the background are that decree for the maintenance of
respondent No.4 was passed at the rate of Rs.5,000/- per month against the
petitioner on 04.06.2013. Section 17-A(3) of the Act was substituted through the

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Punjab Family Courts (Amendment) Act, 2015 (XI of 2015) to provide for annual
increase in the maintenance at the rate of ten percent each year. Through the
impugned order dated 10.06.2021, while relying upon Section 17A(3) ibid, learned
executing court fixed annual increase at the rate of ten percent to the amount of
maintenance decreed on 04.06.2013. The petitioner preferred appeal against the
aforementioned order, which was partially allowed vide impugned judgment dated
30.10.2021 to the extent that the impugned order of the learned executing court was
held to take effect from the date of promulgation of the Punjab Family Courts
(Amendment) Act, 2015 instead of the date of decree dated 04.06.2013.
3. Learned counsel for the petitioner contends that Section 17A(3) of the Act has
no retrospective effect and application to the case of the petitioner wherein the
decree dated 04.06.2013 was passed for maintenance of respondent No.4, therefore,
the impugned decisions are unsustainable in law.
4. In order to properly appreciate submission of the learned counsel for the
petitioner, it would be advantageous to reproduce the provision of subsection (3) of
Section 17A of the Act as substituted through the Punjab Family Courts
(Amendment) Act, 2015 (XI of 2015):-
(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.
5. From perusal of the above provision, it is manifest that subsection (3) of
Section 17A of the 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.
6. Entitlement to maintenance of wife and children is not only a right recognized
by law and the religion of Islam1 but the same is a part and parcel of rights to life
and dignity, as enshrined in Articles 92 and 143 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 allowance4. 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

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12/7/23, 11:32 PM 2022 M L D 1762

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 circumstances6. However, the Provincial
legislature was empathetic enough to provide an additional cushion in the form of
Section 17A(3) of the Act7 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.
7. 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 effect8. 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 passing9 or operation thereof is based upon the status that arose
earlier.10
8. 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.
9. In the impugned decision, learned Additional District Judge has held the
provision of Section 17A(3) of the Act to be applicable with effect from the date of
enactment of the Punjab Family Courts (Amendment) Act, 2015, therefore, plea of
the petitioner qua retrospective effect and application of the said provision is
unfounded and misconceived. Even in the case of Shahzad Yousaf 11, the Hon'ble
Supreme Court of Pakistan, inter alia, held the maintenance to be increased at the
rate of 10% each year while applying the provision of subsection (3) of Section
17A of the Act to the decree dated 19.01.2011 in the suit for maintenance.
10. For the foregoing reasons, no case of illegality or jurisdictional error in the
impugned judgment passed by the learned Additional District Judge has been made

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out warranting interference by this Court under Article 199 of the Constitution of
Islamic Republic of Pakistan, 1973, this writ petition is accordingly dismissed in
limine being devoid of any merit.
SA/K-29/L Petition dismissed.

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