2015 MLD 11
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 20---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance for child---Obligation of father---Mother was capable of earning---Father was extremely poor and was not in a position to pay maintenance allowance to the child---Effect---To maintain his child was obligation of the father and his responsibility could not be absolved merely on the basis that the mother was an earning-hand---Neither the father was stated to be poor nor incapable of earning.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Grant of maintenance allowance for children---Intent and purport---Quantum of maintenance allowance---Determination.
Intent and purport of maintenance allowance to a minor child is to enable her/him to continue living at least, in the same state of affairs as the child was used to live prior to separation/divorce amongst the parents and it would be quite unjust and against the norms of propriety if due to separation amongst the parents the child has to relegate to a lower level of living standard or he/she is declined the level or standard of education which was achieved by him/her prior to such happening i.e. separation of parents. At the same time, there is no escape from the fact that financial status of the father is also to be taken into consideration while awarding maintenance.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance for children---Annual enhancement in maintenance allowance---Trial Court granted annual enhancement in maintenance allowance at the rate of 30%---Petitioner challenged annual enhancement being against statutory provisions---Validity---Keeping in view the increase in day to day needs of the minor vis- -vis inflationary trend in the country there existed strong factual basis for grant of annual increase in the maintenance of the child.
Khadiija Bibi and others v. Abdul Raheem and others 2012 SCMR 671 distinguished.
Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 rel.
(d) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of dowry articles---Trial Court decreed the claim in favour of wife---Appellate Court allowed the appeal and prayer of recovery of dowry articles was declined---Non-exhibition of list of dowry articles---Effect---Petitioner/husband in his written statement had not categorically denied factum of delivery of dowry articles and simply stated that no articles were shifted to his house---Stance of the petitioner was not acceptable as from the evidence of the parties it was established that after marriage the wife resided in his house---Dowry articles given to her by her parents in natural course would have been shifted to petitioner's house---Ground urged regarding non-exhibition of list of dowry articles could not be made basis for non-suiting the wife for recovery of dowry articles particularly when the factum of delivery of dowry articles was not categorically denied by the husband---Family Court, after due appreciation of the evidence available on the record found on the issue of dowry articles, which had illegally been disturbed by the lower Appellate Court---Findings of the lower Appellate Court was set aside by High Court.
(e) West Pakistan Family Courts Act (XXXV of 1964)---
----S.5, Sched.---"Maintenance"---Meaning---Expression "maintenance" had not been defined in the West Pakistan Family Courts Act, 1964---Dictionary meaning of maintenance was financial support given by one person to another, usually paid as a result of legal separation or divorce; especially alimony.
Malik Qamar Afzal for Petitioner.
Muhammad Ilyas Sh. for Respondents Nos. 1 and 2.
ORDER
MUHAMMAD FARRUKH IRFAN KHAN, J.---By means of this order, I propose to decide the aforementioned writ petition as well as Writ Petition No.5056/10 filed by respondent No.1 Mst. Shamas-un-Nisa as both these arises out of the single judgment of the learned lower appellate court. Hereinafter Khalid Bashir shall be referred to as petitioner, whereas, Mst. Shamas-un-Nisa shall be referred to as respondent.
2.Briefly the facts of the case are that the respondent filed two suits one for recovery of maintenance allowance and other for recovery of dowry articles against the petitioner. The learned Judge Family Court after appreciating the evidence available on record proceeded to decide both the suits through consolidated judgment and decree dated 22-7-2009 in the following terms:--
"In view of my findings on the above issues, the suit of the plaintiff No.1 to the extent of maintenance is dismissed, except Iddat period at the rate of Rs.8000 per month in gross Rs.24,000, whereas, plaintiff No.2 at the same rate of Rs.8000 per month since 25-7-2005 with annual increase of 30% starting from 16-1-2008 whereas her claim of dowry articles is decreed to the effect that she is entitled to collect her dowry articles, if available in original and if not available then the price of the same after deduction of 30% depreciation costs except seasonal articles as mentioned in the heading of cloths from Sr.Nos.1 to 6 and 16 to the extent of make up articles and that claim to the extent of jewellery is dismissed."
3.Being aggrieved the petitioner filed appeal which was partially accepted by the learned lower appellate court vide judgment and decree dated 3-5-2010 whereby the findings of the learned Judge Family Court was maintained to the extent of maintenance allowance, whereas, prayer of respondent for recovery of dowry articles was declined.
4.Being dissatisfied both the parties filed aforesaid constitutional petitions.
5.Learned counsel for the petitioner submits that the learned courts below erred in law while awarding maintenance allowance to the minor at such an exorbitant rate; that the petitioner is not in a position to pay maintenance allowance to the minor at such high rate; that the learned Judge Family Court also passed order for annual enhancement at unjustifiable rate of 30% which has illegally been upheld by the learned lower appellate court; that there is no provision in the Family Courts Act, 1964 for imposition of annual increase in the maintenance allowance. Relies on Khadija Bibi and others v. Abdul Raheem and others (2012 SCMR 671); that respondent is Homoeopathic doctor by profession and can maintain the minor on her own.
6.Conversely, learned counsel for respondent submits that the judgment and decree of the learned lower appellate court to the extent of non-suiting the respondent from recovery of dowry articles is result of misreading and non-reading of the evidence; that the respondent has proved the factum of delivery of dowry articles by her parents as per list Mark A through confidence inspiring evidence; that the stance of the petitioner in this respect is full of contradiction; that learned lower appellate court was not justified in declining the decree for recovery of dowry articles merely on the ground of non-exhibition of list of dowry articles.
7.I have heard the arguments of the learned counsel for the parties and gone through the record.
8.First of all I would like to dilate upon the question of maintenance allowance. The word 'Maintenance' has not been defined in the Family Courts Act, therefore, one has to look at its dictionary meaning. Various dictionaries define it as under:--
Black's Law Dictionary (8th Edition)
(v)Financial support given by one person to another, usu. Paid as a result of legal separation or divorce; esp. Alimony. Maintenance may end after specified time or upon the death, cohabitation, or remarriage of the receiving party."
Chambers Dictionary (Page 827)
"Maintenance: a money paid by one person to support another, as ordered by a court of law, e.g. money paid to an ex-wife and/or children, following a divorce."
WORDS and PHRASES Permanent Edition Vol. 26 West Publishing Co. (page 97)
"Maintenance" has been defined as a word of general welfare and comprehends food clothing and medical care."
9.In case reported as Abdul Rauf and others v. Mrs. Shereen Hassan (PLD 2001 Supreme Court 31) it is provided:--
"The word 'maintenance' has been defined in Concise Oxford Dictionary, as "1. the process of maintaining or being maintained; 2. the provisions of the means to support life." Liberally interpreting the word 'maintenance', it would be a moral obligation upon the parents to provide the means to support the life of their children."
In case reported as Muhammad Asad v. Humera Naz (2000 CLC 725) it has been defined as under:--
"The definition of maintenance in Islam is Nifka, in the language of law it signifies all those things which are necessary to the support of life, such as food, clothes and lodging."
10.At page 607 Fatawa Alamgiry Vol. 2 Qanuni Kutab Khana Lahore it has been stated that "if father is not disabled but is extremely poor to maintain his children then mother may be ordered to maintain the minor and amount so spent will be debt against father."
11.Section 370 of Muhammadan Law by D.F. Mullah provides as under:--
"370. Maintenance of Children and grandchildren.---(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S.325) does not relieve the father from the obligation or maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property."
12.In the above backdrop, it is quite evident that to maintain his child is obligatory on the father and his responsibility cannot be absolved merely on the basis that the mother is an earning hand. In this case neither the petitioner is stated to be poor nor incapable of earning by his own labour, therefore, he cannot be allowed to shed off his responsibility merely on the basis that the mother of the minor is a homoeopathic doctor and thus capable of earning livelihood.
13.Now coming to the quantum of maintenance allowance. The intent and purport of maintenance allowance to a minor child is to enable her/him to continue living at least, in the same state of affairs as the child was used to live prior to separation/divorce amongst the parents. It would be quite unjust and against the norms of propriety if due to separation amongst the parents the child has to relegate to a lower level of living standard or he/she is declined the level or standard of education which was being achieved by him/her prior to such unfortunate happening i.e. separation of parents. It is noted from the record that the minor/respondent was admitted in Beaconhouse School System in December 2006 while the divorce took place in 2007 and in spite of meagre interim maintenance allowance of Rs.1500 per month paid by the petitioner the respondent No.2 continued her study at the said school, admittedly being financed by her mother/ respondent No.1 and is still getting her education in the same school, therefore, while awarding her maintenance the above consideration should have been given paramount importance. However, at the same time, there is no escape from the fact that financial status of the father is also to be taken into consideration while awarding maintenance. Respondent in her pleadings has stated and proved through evidence that the petitioner belongs to a well off family and is a tax payer besides having substantial family property which he will ultimately inherit. Further, the petitioner also owns a life insurance policy which he is maintaining regularly. However, she has not been able to prove the exact scale of earning of the petitioner. A minute perusal of the evidence and pleadings of the parties also shows that the petitioner's stance throughout has been evasive as to his financial status and he has not disclosed before the Court his exact income. He has claimed that he is merely a salesman and doing a private job but at the same time he has failed to controvert the evidence on record that he has an income tax number and is tax payer which leads to the conclusion that the petitioner has either some other private business in addition to his job or if that is not so then his salary/ income surely exceeds such a level so as to bring him in the net of income tax payees. For the reasons discussed above, this Court is convinced that maintenance allowance of the minor @ of Rs.8,000 per month fixed by the learned Judge Family Court and affirmed by the learned lower appellate court is neither harsh nor exorbitant.
14.So far as its annual enhancement at the rate of 30% is concerned, the learned counsel for the petitioner while relying upon the case reported as Khadeeja Bibi and others v. Abdul Raheem and others (2012 SCMR 671) has laid a lot of stress that annual enhancement is against the statutory provisions of law. The relevant extract of the above esteemed judgment is reproduced as under:--
"The other question as to automatic annual increase in the maintenance for the minor children has been dealt with by the High Court in para 7 of the impugned judgment. At present, there appears to be no factual basis brought on record to justify such annual increase. The learned counsel for the petitioner, however, states that he will be in a position to lead evidence in the form of financial statistics including the Sensitive Price Index ("SPI") to persuade the trial Court to grant annual increase in line with such statistical data."
The Hon'ble Supreme Court in the aforesaid judgment in its utter wisdom set aside the orders impugned before it on the basis that there was no factual base on record before the Court to justify annual increase in the maintenance. The facts and circumstances of the case in hand are quite distinct. Here in this case admittedly minor is getting education in Beacon House School System and in the year 2007 her monthly tuition fee was Rs.3660 which in November 2012 has increased to Rs.14,450 per month. Learned counsel for the respondent has placed on record challan form reflecting current monthly tuition fee in support of his assertion. Moreover, as discussed supra, the petitioner is intentionally avoiding to disclose his actual income, whereas, after divorce respondent No.1 showed her inability to lead further evidence regarding the income of the petitioner, therefore, keeping in view the increase in day to day needs of the minor vis-a-vis inflationary trend in our country there exist strong factual basis for grant of annual increase in the maintenance of the minor. However, enhancement at the rate of 30% in my humble view is unjustified, therefore, findings of the learned courts below to this extent are modified and annual increase in the maintenance allowance of the minor is awarded at the rate of Rs.15% per year instead of 30%. While reaching to this conclusion I am fortified by the case reported as Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others (PLD 2009 Supreme Court 760).
15.As far as suit for recovery of dowry articles is concerned, the petitioner in his written statement has not categorically denied factum of delivery of dowry articles to the respondent rather in para No.6 of his written statement he denied receipt of any gift from the respondent. Even in his affidavit Ex.D1 he has not denied the factum of giving of dowry articles and simply stated that no articles were shifted to his house. This stance of the petitioner is not acceptable as from the evidence of the parties it has been established that after marriage respondent resided in petitioner's house, therefore, in natural course the dowry articles given to her by her parents would have been shifted to petitioner's house. The ground urged regarding non-exhibition of a list of dowry articles cannot be made a basis for non-suiting the wife for recovery of dowry articles in particular when the factum of delivery of dowry articles was not categorically denied by the husband. Admittedly, respondent belongs to a well to do family and it is customary in our society that parents do give dowry articles to their daughters merely as a token of love. Learned Judge Family Court after due appreciation of the evidence available on the record recorded findings on the issue of dowry articles which has illegally been disturbed by the learned lower appellate court. Resultantly, the findings of the learned lower appellate court on this issue are hereby set aside and that of the learned Judge Family Court are restored.
16.So far as claim of respondent regarding gold ornaments is concerned, her prayer to this extent was declined by the learned Judge Family Court vide judgment and decree dated 22-7-2009 against which she did not file any appeal before the learned lower appellate court as such the findings of the learned Judge Family Court to this extent have attained finality and cannot be disturbed by this Court in its Constitutional jurisdiction.
17.Resultantly, both the writ petitions are disposed of in the above terms. No order as to costs.
JJK/K-4/LOrder accordingly.
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