Case Against Bailiff Fee In Child Custody Litigation
This article questions the authority of Guardian Judges at Lahore to fix bailiff fees for home visitation of the minor to his or her non-custodial parent on the ground, inter alia, that the said authority exercised by the learned judges and infliction of bailiff fee is ultra vires of the quasi-parental powers vested in the province of Punjab and that the same merits to be so declared. There are more than 3,000 child custody petitions pending adjudication in several Guardian Courts at Lahore seeking physical custody of minor children who are kept by their custodial parents under ad litem custody during pendency of the litigation. In almost every guardian case, a non-custodial parent seeks for the grant of visitation rights with the minor children including at-home visitation and physical custody of them on account of different occasions may that be Eid, public holiday, vacation, birthday of the minor or non-custodial parent or other such days. While allowing visitation rights, including at-home visitation of the minor child with non-custodial parents, the honourable Guardian Courts at Lahore, as a practice, order that custody of the minor be administered by a bailiff of the court and for this administration of safe custody of the minor to the non-custodial parent, a fees of PKR 1,000 is fixed, which is to be paid by the non-custodial parent upon each home visitation. Such orders have been passed while ignoring the fact that non-custodial parents are already paying an appropriate amount towards the minor child as monthly maintenance and also bearing the travel expenses of their minor child as and when the minor is produced in court for the purposes of meeting with the non-custodial parent. In presence of the payment of monthly maintenance and travel allowance to the custodial parent for the production of minor in court for the purposes of meeting with the minor child, the fixation of bailiff fees at PKR 1,000 on account of handing over of physical custody of the minor through bailiff is against the very mandate of law and against the welfare of the minor itself. Ordinarily a non-custodial parent is allowed physical custody of the minor child on Eid ul Fitr, Eid ul Azha, school vacation, Moharram holidays and birthday of the minor and birthday of the non-custodial parent, resulting in 8 occasions for which he or she is required to pay PKR 1000 to the bailiff on every time. The paramount consideration for the court in matters with regard to custody of minors is nothing but welfare of the minor. Levying heavy fees in the name of bailiff fee is tantamount to depriving a parent in meeting his or her minor child for the reason of his or her fiscal constraints and this is against the doctrine of welfare of the minor. Further pertinent to be noted here is that a family court affixes maintenance of the minor while keeping in view the resources of the parent and after going through all the evidence. On the other hand, the guardian courts fix bailiff fee without any such consideration as to whether a parent would be in a position to pay fees to a bailiff who is appointed solely for the job and is also a salaried employee of the court. This illegal practice of fixation of bailiff fee is adding financial hardship for the non-custodial parents resulting in their inability to meet their minor children on special occasions for want of adequate financial resources as well as depriving the minor from having a home visit with the non-custodial parent, which is against the welfare of the minor. The fees of the bailiff which the learned guardian judges at Lahore are fixing on their own, without following any criteria, is without any factual basis or justifiable reasons resulting in acute financial burden for the non-custodial parents. It is pertinent to be noted here that a fee may generally be defined as a charge for a special service rendered to individuals by some court agency. The amount of fee levied is supposed to be based on the expenses incurred by the court in rendering the services but in guardian courts there exists no such procedure where fee of the bailiff is calculated and directed to be paid by the non-custodial parent (mostly father), rather the guardian judges fix it in a slipshod manner, at an arbitrary rate resulting in extra burden on the non-custodial parent already involved in child custody litigation. In the case titled United Marine Agencies (Pvt.) Ltd vs Trustees of the Port of Karachi and Others, it has been observed by the honourable Sindh High Court that no tax, levy, charge, fee or cess could be imposed or recovered without there being any statutory sanction. Imposition of tax, levy, charge, fee or cess is a sovereign function and can only be exercised under a mandate and subject to limitation provided under the law. Reliance is placed on 2007 CLD 1092 Sindh High Court. There exists no criteria in the Guardian Courts at Lahore on the basis of which this fee is calculated and recovered from the non-custodial parents, rather it is in sheer contravention of the provisions of Rule No. 10 & 11 of Part F of the Rules and Orders of the Lahore High Court, Lahore Volume V, Chapter No. 4, Special Procedures (Revised Edition) of 2005 framed under Section 491 (2) of the Code of Criminal Procedure to regulate the procedure in cases under section 491 of the Code of Criminal Procedure. This categorically lays down that,
When a bailiff is deputed by the court to produce an alleged detenu/detenus, the party requiring the production should deposit with the Treasurer in advance, an amount equal to the calculated expenses for the journeys involved keeping in view his grade of pay and the daily allowance admissible to him under the relevant rules.
Again in Rule 13 of the Rules ibid, it is mentioned that in case the bailiff does not submit his claim within the time mentioned in the last rule, the amount or balance thereof should be refunded to the party concerned. In case, however, the party fails to claim refund within six weeks, the amount due is to be credited to government under the head ‘major head’. It is stated here that as per the provisions of Rule No. 15 of the Rules ibid, it is provided that if, at any time, on sufficient ground shown to the satisfaction of the registrar, it is proved that the bailiff submitted an exaggerated or incorrect claim or claimed expenses, this should be taken to be a misconduct and necessary proceedings against him be initiated under the High Court Establishment (Appointment & Conditions of Service) Rules, which may result in major penalty provided by the relevant Rules. At Guardian Courts, there exists no documentation with regards to the claim of the bailiff as to his actual expenditure. The fixation of fee of the bailiff by the learned guardian judges at Lahore, is again in contravention of the High Court (Lahore) Rules & Orders, Vol. IV, Part A, Chap. 6, Rule 12 pertaining to the “Process-Serving Establishment, A- Remarks and Directions”, which clearly postulates, under the head of Special Messenger and Special Bailiff that, “A special bailiff may be appointed for the execution of a warrant of arrest if service cannot be effected in the ordinary course. The period of such appointment can be determined by the court concerned in the circumstances of each case but no special fee should be levied.” It is estimated that there are almost 15,000 custody cases registered in the guardian courts across Pakistan. Almost 3,000 cases are pending adjudication in the guardian courts at Lahore. Assuming that on average 3-4 children are being affected in each case involving home visitation, the total number could be as many as 9,000 minor children across Lahore to be direct affectees of this blatant illegal practice carried out by the Guardian Courts at Lahore. It is further significant to be noted here that the Punjab Finance Department has revised the rates of travel allowances for civil servants of the Punjab government, where under the rates of qualification pay, senior post allowance and daily travel allowance have been revised through the notification No. FDSR.1-9-2/2010 dated 01.01.2013, a copy of which has been dispatched to all the District and Sessions Judges. Under the said notification, the ordinary rate of daily allowance of a person with basic pay scale (BPS) 1-4 is PKR 310 and for 4-5 is revised to be PKR 390 in addition to revised rates for travel and mileage allowance for motor cycle/ scooter which is fixed at PKR 2.50 per kilometer. The non-custodial parent is required to pay an additional amount of PKR 8000 per annum to the bailiff under the head of bailiff fees, despite the very fact that the bailiff is appointed as a bailiff in pay scale No. 4 and draws a monthly salary from public exchequer. There exists no criterion as to how the fee of the bailiff is calculated, despite the fact that the office of the District and Sessions Judge, Lahore has already sanctioned 6 official motorbikes to the bailiffs attached with Guardian Courts at Lahore. On an average, these motorcycles give a mileage of 70 km per litre and petrol nowadays is available for PKR 64 per litre, hence fixation of PKR 1000 as fee of the bailiff is exorbitant in the peculiar circumstances of the matter. Justice should be done for the sake of God and its exclusive purpose should not be money, fee, compensation or reward. Devouring anything is forbidden – both in a literal and figurative sense. In the figurative sense, it may be the taking of bribe, or usury, or taking undue advantage of people’s weak position by way of levy of any fee or charge. The learned guardian judges are oblivious to the simple fact that there are more than 3,000 cases that are pending adjudication in the Guardian Court at Lahore alone, and one of the litigants in a child custody litigation is a non-custodial parent who is made to pay an additional charge of PKR 1,000 for each home visit with his or her own child, in order to strengthen bonding with his or her own offspring. Each parent is approximately paying almost PKR 8000 to 15000 against this bailiff fee, and if it is calculated at a large scale with the total number of child custody cases pending adjudication, the amount comes to an approximate figure of PKR 24,000,000 for which there exists no justification as the same is collected against the very mandate of the law enshrined in High Court Rules (Lahore) (Instructions to Civil Court) Volume IV, Chapter 6, Rule 12 and in sheer contravention of High Court Rules (Lahore) Rules and Orders, Volume V, Part F and the rules framed under Section 491 (2) of the Code of Criminal Procedure 1898 to regulate procedure in cases under section 491. It is the duty of government of an Islamic state to take effective steps for eliminating fasad-fil-arz. It needs no reiteration to say that the most important factor in discharging this duty of elimination of fasad-fil-arz is the settling of disputes through courts. Whether it is a dispute between citizens or between the state and a citizen, it must be settled in a peaceful way through the court enjoying unfettered powers and inspiring confidence. An Islamic state cannot close the portals of justice or create obstructions in the way of seekers of justice. A person with injured feelings should be smoothly and peacefully taken to the fountain of justice rather than be forced to settle scores with adversaries on the streets. Looking from this angle, the levy of bailiff-fee is totally repugnant to the concept of providing justice to the citizen and is a negation to the claim of establishing a just social order. It is an admitted fact that discretion becomes an act of discrimination when it is improper or is a capricious exercise or abuse of discretionary authority, and the person against whom this discretion is exercised faces certain disadvantages which he or she would not have otherwise faced. Where discretion is not based on any rational ground bearing upon the subject being dealt with, the law offends against the principle of equality and is void (2001 SCMR 256). Pakistan is a civilized society governed by law and not by the will of a few. The Constitution and other laws provide a very good system of checks and balances. The country, or for that matter a province, is not a fiefdom of any one person no matter how high-ranking he or she may be. Everybody remains under the law. All public power is a trust and has to be exercised fairly, honestly and in the interests of the public. It is further suggested here that the Guardian Courts are bound to look into the earning capacity of a non-custodial parent before inflicting him or her with the cost of bailiff fees. Such orders should not be perverse or based upon conjectures and surmises and Guardian Courts should exercise such power in a rational manner, which is not being done in matters of child custody pending adjudication before them and is resulting in acute fiscal constraints on the non-custodial parents. Honourable guardian judges are requested to accord fair and proper hearing to the person expected to be affected by their orders and to give sufficiently clear and explicit reasons in support of their orders regarding fixation of bailiff fees. The quantum of fee of the bailiff should be fixed while taking into consideration the sources of income of the non-custodial parent and keeping in view the genuinely expected expenses that may be incurred by a bailiff for change of physical custody of the minor and handing him or her over to the non-custodial parent. Such allowance must also be in conformity with other expenses. ———- References  Report submitted before the Division Bench of the Lahore High Court by the Senior Guardian Judge Lahore in Writ Petition bearing No 28566/11 & 28237/11