Marriage--Essential conditions--Free will--It was directed by Islam that both parties to a marriage should be amenable to trying the marital knot--A girl could not be compelled into a marriage against her will.

 PLJ 2011 Lahore 404

Constitution of Pakistan, 1973--

----Art. 199--Suit was dismissed on technicality--Amendment of plaint--Suit for maintenance was dismissed for plaintiff, being a major, she had filed the suit through her mother as her next best friend--Validity--Technicality could have been fixed by directing him to file an amended plaint by deleting her mother's name--Thus, the suit was held to have been wrongly dismissed.            [P. 405] A

Res Judicata--

----Principle of res-judicata--Applicability on maintenance suits--In matter of maintenance the principle of res-judicata was not applicable--The only time off-spring cannot claim maintenance was, in the case of a boy, on attaining the age of majority and for a girl on getting married because after her marriage her husband becomes her guardian and is bound to provide for her--In case of divorce the father again puts on the matter of a guardian and is bound to provide for her.   [P. 405] B

Marriage--

----Essential conditions--Free will--It was directed by Islam that both parties to a marriage should be amenable to trying the marital knot--A girl could not be compelled into a marriage against her will.           [P. 406] C

Maintenance--

----Period of maintenance--Qanoon-e-Shahadat Order--Applicability--Powers of Family Court--Proceedings under the Muslim Family Court Act, 1964 were not bound by the provisions of the Qanoon-e-Shahadat--Family Court could allow all evidence, to arrive at a just conclusion.          [P. 406] D

Ch. Tanvir Ahmad Hanjra, Advocate for Petitioner.

Date of hearing: 23.7.2009.

 PLJ 2011 Lahore 404
Present: Jamila Jahanoor Aslam, J.
MUHAMMAD ALI--Petitioner
versus
JUDGE FAMILY COURT, DEPALPUR and 2 others--Respondents
W.P. No. 14799 of 2009, decided on 23.7.2009.

Order

This W.P. No. 14799/2009 has been filed impugning judgments/decrees dated 20.03.2008 and 17.06.2009. The latter of the two is a consolidated judgment which also pertain to matters between the Petitioner and his ex-spouse. However, the matter agitated before me pertains to the quantum and period of maintenance allowed in favour of Respondent No. 3 who is the Petitioner's daughter. The petitioner is aggrieved that maintenance granted in favour of Respondent No. 3 is excessive and the period, too long.

2.  The counsel for the petitioner contends that Respondent No. 3's first suit for recovery of maintenance was dismissed on merits therefore the principle of res judicata is applicable.

3.  It is further contended that maintenance cannot be granted for six years to Respondent No. 3, who is his daughter. It is also asserted that he was paying maintenance for her till she attained the age of majority and that now being a major she is not entitled to any further maintenance from him. Apart from this ground another one has been agitated and that is that Respondent No. 3 is not accepting a marriage proposal suggested by him, thus she disentitles herself to any maintenance. The last contention is that the evidence produced by Respondent No. 3 was not relied upon and produced later and that the Trial Court has erred in allowing it.

4.  Arguments heard. Record perused.

5.  The contention of the petitioner that Respondent No. 3's previous suit was dismissed on merits is incorrect because the suit was dismissed on a technicality, which was that being a major she had filed the suit through her mother as her next best friend. This technicality could have been fixed by directing Respondent No. 3 to file an amended plaint by deleting her mother's name. In my opinion it was wrongly dismissed.

6.  The other contention that the principle of res judicata is applicable  is  again  wrong as in matters of maintenance for progeny the principle of res judicata is not applicable. The only time off-spring cannot claim maintenance is, in the case of a boy, on attaining the age of majority and for a girl on getting married because after her marriage her husband becomes her guardian and is bound to provide for her. In case of divorce the father again puts on the mantle of a guardian and is bound to provide for her.

7.  As far as the contention of the petitioner, that Respondent No. 3 has attained the age of majority thus is not entitled to maintenance is concerned, I do not find it tenable. A father is bound to provide for his daughters till they get married.

8.  Where the petitioner contends that Respondent No. 3 is not entitled to maintenance because she has refused the marriage proposal suggested by him, I am not inclined to agree at all. The petitioner has neglected Respondent No. 3 all these years. She has been reared and nurtured by her mother, the petitioner cannot now waltz into her life and impose his will on her. In any case it is directed by Islam that both parties to a marriage should be amenable to tying the marital knot. A girl cannot be compelled into a marriage against her will.

9.  Where the period of maintenance is concerned, the Courts below observed, the petitioner has failed to prove that he had been paying maintenance. The mother of Respondent No. 3 has been tending to all her needs without any financial assistance. The Courts below, I feel have decided the period of maintenance after assessing all the facts in the right perspective.

10.  The last contention of the petitioner that the Trial Court erred in allowing Respondent No. 3 to produce evidence not relied upon in her list of reliance is not tenable at all. Proceedings under the Family Courts Act, 1964 are not bound by the provisions of the Qanun-e-Shahadat Family Court can allow all evidence, to arrive at a just conclusion.

11.  I find all the contentions raised by the petitioner not tenable. Moreover both the Courts below are in consonance that Respondent No. 3 is entitled to recover maintenance from her father, the Petitioner, the only difference is in the quantum of maintenance granted. I feel that in these days of double digit inflation the Appellate Court has lightly enhanced the maintenance to Rs.5000/- per month as opposed to Rs.1500/- per month granted by the Trial Court, which is a pittance. Finally, I am not inclined to interfere in the facts as ascertained by the Courts below.

The writ petition is devoid of merits. It is dismissed in limine.

(R.A.)  Petition dismissed.