PLJ 2022 Lahore 815
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----Ss. 9 & 10--Suit for recovery of maintenance allowance, delivery charges and dowry articles--Suit was partially decreed--Concurrent findings--Financial status of respondent--Challenge to--In cross-examination Petitioner No. 1 had admitted that Ali Hassan minor was born in a hospital through a normal delivery, suit to extent of recovery of delivery expenses was rightly dismissed by Courts below--Petitioner No. 1 admitted in her cross-examination that there was no proof with her regarding financial income of Respondent No. 1--In circumstances, Courts below decreed suit--Courts below have concurrently fixed maintenance allowance after giving due consideration to requirements of minor and by taking into account financial status of Respondent No. 1--Concurrent findings of facts recorded by Courts below do not suffer from any illegality, infirmity or perversity, which could convince to interfere in same while exercising constitutional jurisdiction of this Court--In case petitioners think rate of maintenance at lower side, they can move application before trial Court which is empowered to increase same after having considered financial status of Respondent No. 1--If maintenance allowance is fixed without considering financial status of person, who has been burdened with such future financial liability can file application for re-fixation of maintenance allowance in view of financial status of person is also entertainable under same analogy--Petition dismissed.
[Pp. 817 & 818] A, B, C, E & F
Family Courts Act, 1964 (XXXV of 1964)--
----S. 5--Jurisdiction--Under provision of section 5 of Family Courts Act, Family Court is vested with exclusive jurisdiction to entertain and adjudicate upon matter specified in schedule. [P. 818] D
M/s. S.M. Zeeshan Mirza, Rana Muhammad Majid, Zaheer Abbas, Tahir Mahmood Mughal and Naveed Khalid Rana, Advocates for petitioners.
Nemo for Respondent No. 1.
Date of hearing: 10.1.2022.
PLJ 2022 Lahore 815
Present: Safdar Saleem Shahid, J.
SAMIA ANWAR etc.--Petitioners
versus
NASIR HUSSAIN etc.--Respondents
W.P. No. 32224 of 2015, decided on 10.1.2022.
Order
This petition is directed against concurrent judgments and decrees dated 23.01.2015 and 04.05.2015 passed by the learned Judge Family Court and learned Additional District Judge, Gujrat.
2. Brief facts necessary for decision of the instant petition are that the petitioners filed a suit for recovery of maintenance allowance, delivery charges and dowry articles, alleging that Petitioner No. 1 was married with Respondent No. 1 on 23.07.2009 but behavior of Respondent No. 1 remained cruel and ultimately he ousted Petitioner No. 1 from his house in November, 2009, whereafter a son (Petitioner No. 2) was born out of the wedlock. It was claimed that Respondent No. 1 works in Dubai and also owns landed property and can easily pay maintenance allowance of Rs. 30,000/-per head per month. According to the petitioners Respondent No. 1 has pronounced divorce, but has refused to return the dowry articles given to Petitioner No. 1 by her parents at the time of marriage and has also refused to pay maintenance allowance and the delivery charges Rs. 40,000/-incurred by Petitioner No. 1. The suit was contested by Respondent No. 1 by filing written statement, wherein he alleged that Petitioner No. 1 left his house on 30.04.2013 and refused to rehabilitate as such on her demand he pronounced divorce on 20.05.2013 and that he is ready to return the dowry articles as per list attached with the written statement, which are lying with him.
3. Out of divergent pleadings of the parties, the learned trial Court framed issues, recorded evidence of the parties and after having gone through the same partially decreed the suit holding Petitioner No. 1 entitled to recover Rs. 7000/-per month as maintenance allowance from 30.04.2013 till the period of Iddat, whereas Petitioner No. 2 was held entitled to recover Rs. 7000/-per month as maintenance allowance from 30.04.2013 till his legal entitlement with the direction that the interim maintenance allowance already given shall be adjusted in his maintenance. The suit to the extent of recovery of delivery expenses was, however, dismissed, whereas to the extent of recovery of dowry articles the same was dismissed as withdrawn. Both the parties assailed the judgment by filing their respective appeals, but both the appeals were dismissed by the learned Additional District Judge.
4. Despite repeated calls no one appeared on behalf of Respondent No. 1, hence he is proceeded against ex parte. The case has been taken up for hearing with the assistance of the learned counsel for the petitioner.
5. The petitioners have filed the instant petition with the prayer that by setting aside the judgments and decrees of both the Courts below, their suit be decreed as prayed for. Matter regarding recovery of dowry articles was settled during the pendency of the suit, whereas since in her cross-examination Petitioner No. 1 had admitted that Ali Hassan minor was born in a hospital through a normal delivery, the suit to the extent of recovery of delivery expenses was rightly dismissed by the Courts below. As regards prayer for grant of maintenance allowance, Petitioner No. 1 admitted in her cross-examination that there was no proof with her regarding financial income of Respondent No. 1. In the circumstances, learned Courts below decreed the suit holding the petitioners entitled to recover the maintenance allowance at the rate of Rs. 7000/-per month each for the periods mentioned against each of them. Courts below have concurrently fixed the maintenance allowance after giving due consideration to the needs/requirements of the minor and by taking into account the financial status of Respondent No. 1. Besides, the concurrent findings of facts recorded by the Courts below do not suffer from any illegality, infirmity or perversity, which could convince to interfere in the same while exercising constitutional jurisdiction of this Court. In this regard reliance can be placed upon the case of Syed Hussain Naqvi and others vs. Mst. Begum Zakara Chatha through L.Rs. and others (2015 SCMR 1081), wherein it has been held as under:
"15. There are concurrent findings of fact recorded by the learned Courts below against the appellants. This Court in Muhammad Shafi and others v. Sultan (2007 SCMR 1602) while relying on case-law from Indian jurisdiction as well as from the Pakistani jurisdiction has candidly held that this Court could not go behind concurrent findings of fact "unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible." No such thing could be brought on record to warrant interference by this Court."
6. Furthermore, legislature has established the Family Courts for expeditious settlement and disposal of the disputes relating to marriage, family affairs and the matters connected therewith. Under the provision of section 5 of the Family Courts Act, the Family Court is vested with the exclusive jurisdiction to entertain and adjudicate upon the matter specified in the schedule. The matter of maintenance is at serial No. 3 in the schedule. Thus, the Family Court has exclusive jurisdiction relating to maintenance allowance and the matters connected therewith. Once a decree by the Family Court in a suit for maintenance is granted thereafter, if the granted rate for per month allowance is insufficient and inadequate, in that case, according to scheme of law, institution of fresh suit is not necessary rather the Family Court may entertain any such application and if necessary make alteration in the rate of maintenance allowance.
7. In the circumstances, in case the petitioners think the rate of maintenance at lower side, they can move application before the learned trial Court which is empowered to increase the same after having considered financial status of Respondent No. 1. It is statutory provision, that for enhancement of maintenance allowance on behalf of the minors, the application can be filed by the person, having custody of the minors; similarly if the maintenance allowance is fixed without considering the financial status of the person, who has been burdened with such future financial liability can file application for re-fixation of maintenance allowance in view of financial status of the person is also entertainable under the same analogy.
8. The learned counsel for the petitioner has been unable to point out any exercise of excess of jurisdiction by the learned Courts
below or indeed that their decisions are perverse. The learned counsel for the petitioner has similarly been unable to point out any illegality or material irregularity having been committed by the learned Courts below. Under the circumstances this petition fails and is accordingly dismissed with no order as to costs.
(Y.A.) Petition dismissed
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