---S.5, Sched---Quantum of maintenance for minor---Pervious maintenance of wife---Summoning of witness---Wife and minor (respondents) filed suit for .................

 2022 M L D 1995

Family Courts Act (XXXV of 1964)---

----S.5, Sched---Quantum of maintenance for minor---Pervious maintenance of wife---Summoning of witness---Wife and minor (respondents) filed suit for recovery of maintenance allowance, dowry articles, car and gold ornaments against husband/father/petitioner before Family Court---Petitioner appeared and contested the suit by filing written statement ---Family Court decreed the suit---Both parties preferred appeals before Appellate Court which was dismissed----Held, that to the extent of maintenance allowance of the minor, petitioner/father was religiously, legally and morally bound to maintain his child, so far as, quantum of maintenance allowance for minor was concerned, wife (respondent) had claimed that petitioner was serving as Major in the Army and received Rs,150,000/- salary ,therefore could easily pay Rs. 35,000/- per month maintenance to the minor where as petitioner took the stance that he had to pay mess bill and other expenses worth Rs.50,000/- and also had other dependents----Minor was school going girl and her expenses would definitely increase in future---Keeping in views the facts and circumstances of the case, status of the parties and evidence produced during the trial, Family Court rightly fixed the quantum of maintenance allowance with 10% annual increase---Wife/respondent had claimed her pervious maintenance allowance since October 2016 but was unable to establish the fact when, where, in whose presence and for what reason, she was forcibly expelled by petitioner from his house---Wife had also not specifically alleged that she had been tortured by the petitioner---When the lady was not residing with the petitioner and not performing her matrimonial obligations, petitioner was not under obligation to maintain respondent (wife) for the said period---Wife had claimed that the car and 12 tolas gold ornaments given as dowry articles were not returned by the petitioner and were still in petitioner's possession where as petitioner had denied said fact---During pendency of suit, wife (respondent) filed an application for recording evidence of real mother of the petitioner which was allowed and mother of petitioner was summoned---Petitioner's mother deposed against the petitioner and there was no reason to disbelieve the real mother who had deposed against her own son/petitioner---Special power of attorney of petitioner did not opt to cross-examine the petitioner's mother meaning thereby her statement was admitted by the special attorney---Neither any independent evidence was brought on record to prove that petitioner's mother had deposed against petitioner due to some enmity nor any evidence was produced that her statement was not the correct picture---Even petitioner himself had not appeared in the witness box whereas petitioner's special attorney appeared who was neither having full information about the event of marriage and nor about proceedings of the Court----Petitioner's mother was put questions by the Court, she replied to them, which showed that she was making independent statement and her statement could not be said to be under the influence of any body or within the meaning of tutored statement ---Even otherwise, the response/behaviour of petitioner to the application for summoning the petitioner's mother revealed that statement of the petitioner's mother was a correct picture---Petition was dismissed, in circumstances.

Family Courts Act (XXXV of 1964)---

----S.5, Sched----Power of Family Court to summon any witness---Family Court was empowered to adopt any way/procedure for the ends of justice which was not against the principles of natural justice to decide the matter and the ample provisions were with the Family Court to call any witness at any stage necessary for the decision of the case---Petition was dismissed, in circumstances.

Constitution of Pakistan---

----Art.199---Concurrent findings of fact of two Courts below could not be disturbed in writ petition unless there was some jurisdictional error or defect pointed out by petitioner.

Family Courts Act (XXXV of 1964) ---

----Preamble---Qanun-e-Shahadat, (10 of 1984), Art.129----Although the provisions of the Qanun-e-Shahadat, 1984 were not as such applicable to the proceedings of family cases, yet the Family Courts Act, 1964 empowered the courts to make its own assessment---Art. 129 of Qanun-e-Shahadat, 1984, also given powers to the Court to form an opinion about the evidence produced.

JUDGMENT

SAFDAR SALEEM SHAHID, J.----Through instant petition, petitioner has called in question the validity of judgment and decree dated 03.09.2021 passed by learned Judge Family Court, Hafizabad and judgment and decree dated 31.01.2022 passed by learned Additional District Judge, Hafizabad.

2. Brief facts necessary for decision of instant writ petition are that marriage of Mst. Saima Faazil respondents No.3 was solemnized with the petitioner on 2-8.06.2013. At the time of marriage, costly dowry articles including car and gold ornaments were given to respondent No.3. Out of this wedlock, Mahnum respondent No.4 was born. Thereafter the relations between the parties became strained which ended on separation. Respondent Nos.3 and 4 filed a suit for recovery of maintenance allowance, dowry articles i.e. car and gold ornaments against the petitioner before Judge Family Court concerned. The petitioner appeared and contested the suit by filing written statement and raising many legal as well as factual objections. Out of divergent pleadings of the parties issues were framed by learned trial court. After recording evidence and hearing both the parties, learned trial court decreed the suit vide judgment and decree dated 03.09.2021 in the terms as under:-

The plaintiff is entitled to have the maintenance allowance from the defendant for the period of her Iddat @ Rs.10,000/- per month.

The claim of plaintiff No.2 for maintenance allowance is hereby decreed against the defendant @ Rs. 15,000/- per month w.e.f April, 2018 till her legal entitlement along with 10% annual increment.

The plaintiff is also held entitled to the return of her dowry articles comprising Motorcar and gold ornaments weighing 12 tolas and in alternate Rs.15,00,000/- in lieu of price of motorcar and at the rate of market value of 12 tolas gold ornaments applicable on the date of return thereof.

Against the said judgment and decree, both the parties preferred appeals before learned Additional District Judge and the said court dismissed both the appeals vide judgment and decree dated 31.01.2022. Hence, this writ petition.

3. Learned counsel for the petitioner contended that impugned judgments and decrees have been passed by both the courts below while ignoring the relevant law and facts of the case, therefore, same are not sustainable in the eyes of law; respondents Nos.3 and 4 could not prove their claim through cogent and reliable evidence but the courts below remained unable to appreciate the same; statement of CW.1 cannot be relied upon and termed as evidence; maintenance allowance of the minor has been fixed at a higher rate without taking into consideration the financial status of the petitioner; respondent No.3 could not prove handing over the car to the petitioner and neither any invoice or other document has been produced in order to establish the fact that the car in question was purchased by brother of respondent No.3; impugned judgments and decrees are the result of mis-reading and non-reading of evidence produced by the parties.

4. Learned counsel for respondents Nos.3 and 4 on the other hand

has opposed this petition on the ground that impugned judgments and decrees have been passed by the courts below quite in accordance with law; no illegality or irregularity has been pointed out by learned counsel for petitioner in the impugned judgments and a decrees, therefore, instant petition is liable to be dismissed.

5. Arguments heard. Record perused.

6. It has been noticed that a suit was filed by respondents Nos.3 and 4 for the recovery of maintenance allowance and dowry article i.e. car and gold ornaments against the petitioner before Judge Family Court which was decreed. Feeling aggrieved, both the parties preferred their appeals before Addl: District Judge which were dismissed by the said court. In order to prove her claim, respondent No.3 herself appeared as PW.1 and produced Ghulam Habib her brother and Nasrullah Khan as PWs.2 and 3 respectively. On the other hand, Zahid Saleem special attorney of the petitioner appeared as DW.1 as sole witness. To the extent of maintenance allowance of the minor, there is no cavil to the proposition that petitioner is religiously, legally and morally bound to maintain his child. So-far-as, quantum of maintenance allowance is concerned, respondent No.3 has claimed that petitioner is serving as Major in Pakistan Army and drawing Rs.150,000/- as salary, therefore, can easily pay Rs.35,000/- per month maintenance allowance to the minor whereas the petitioner took the stance that he has to pay mess bill and other expenses worth Rs.50,000/- and also has other dependents. The minor is school going girl and getting education in City School Hafizabad, therefore, her expenses would definitely increase in future. Keeping in view the facts and circumstances of the case, status of the parties and evidence produced during the trial, learned Judge Family Court rightly fixed the quantum of maintenance allowance with 10% annual increase after critically examining, discussing and evaluating the evidence produced by the parties which was upheld by learned appellate court with justified reasons. Regarding previous maintenance of the minor, learned trial court and learned 1st appellate court rightly fixed the maintenance from April, 2018 while mentioning reasonable justification.

7. As far as the claim of respondent No.3 for previous maintenance allowance is concerned, the lady has claimed her previous maintenance since October 2016 but remained unable to establish the fact that when, where, in whose presence and for what reason, she was forcibly expelled by the petitioner from his house. Respondent No.3 has also not specifically alleged that she was tortured by the petitioner. When the lady was not residing with the petitioner and performing her matrimonial obligations, therefore, petitioner is not under obligation to maintain her for the said period. Therefore, both the courts below rightly held that respondent No.3 is entitled to recover maintenance only for Iddat period @ Rs.10,000/- per month.

8. As far as, the claim of respondent No.3 for recovery of dowry i.e. car and 12-tolas gold ornaments is concerned, the lady has claimed the said car and 12-tolas gold ornaments were given as dowry by her parents which were not returned by the petitioner and are still in his possession whereas the petitioner has denied this fact. Respondent No.3 herself appeared as PW.1 and supported her claim. PW.2 brother of respondent No.3 and Nasrullah Khan family driver PW.3 also deposed on the same lines. On the other hand, DW.1 special attorney of the petitioner did not specifically denied giving of car and gold ornaments rather evasively denied regarding the same. During pendency of the suit, respondent No.3 filed an application for recording evidence of real mother of the petitioner, which was allowed and Mst. Balqees Bibi mother of the petitioner was summoned as CW.1 and her statement was recorded. She deposed in the manners as under:

There is no reason to disbelieve the real mother who has deposed against her own son. DW.1 did not opt to cross-examine the CW meaning thereby her statement was admitted by the special attorney of the petitioner. DW. 1 did not state any word that why CW.1 deposed against the petitioner. Neither any independent evidence was brought on record to prove that CW.1 had deposed against the petitioner due to some enmity nor any evidence was produced that the statement of CW was not a correct picture. Even petitioner himself has not appeared in the witness box whereas DW.1 his special attorney appeared in the court and deposed as under:

meaning thereby that special attorney was neither having full information about the events of marriage and about proceedings of the court. DW did not state anything about the fact that the statement of CW was the result of some mis-understanding or it was deposed due to some reason. Anything which is produced in the evidence of PWs and was not negated by the petitioner's side, amounts to admission. The petitioner filed application before learned Addl: District Judge to re-summon the CW.1 for cross-examination; such like application was filed before Family Court which was allowed but due to certain reason the lady could not appear in the court. Learned Addl: District Judge, however, dismissed the application filed by the petitioner. CW.1 got recorded her statement on 29.04.2019 whereas the application for cross-examination was filed after a considerable period. Respondent No.3 produced her evidence; statement of DW.1 was recorded on 05.05.2021 after two years of the statement of CW.1. Learned counsel for the petitioner focused on the point that Family Court cannot summon a witness as CW and claim of respondent No.3 cannot be decreed while relying, the statement of CW. The CW was summoned by the Court on the application of the petitioner who is real mother of the petitioner. There is nothing on the record to consider that CW made statement due to any dispute with the petitioner. She was put questions by the Court, she replied those, which shows she was making independent statement. Her statement cannot be said under the influence of anybody or within the meaning of tutored statement. Otherwise, the response/behavior of the petitioner to the application for summoning the CW reveals that statement of the CW was a correct picture.

The question whether CW can be called by the Family Court, can be assessed in the light of the spirit of the Family Courts Act, 1964. The Family Court is empowered to adopt any way/procedure for the ends of justice which is not against the principles of natural justice to decide the matter. The ample provisions are with the Family court to call any witness at any stage necessary for decision of the case. When DW.1 appeared in the court he did not raise any objection on the statement of CW, therefore, statement of CW is material evidence which not only can be read but also can be relied upon. Reliance in this regard is placed on the case of Ghulam Muhammad v. Zohran Bibi and others (2021 SCMR 19) and Dr. Shahabdullah Khan and 2 others v. Mst. Sobia Mehrin and 2 others (2009 CLC 1188). Both the courts have rightly read and relied upon the evidence of CW.

9. Even otherwise, there were concurrent findings of fact of two Courts below which cannot be disturbed in writ petition by this Court unless there is some jurisdictional error or defect pointed out by the petitioner. However, decision made by the learned Courts below regarding is based on logic. Reappraisal of evidence is not permissible in writ jurisdiction. Reliance is placed on the cases reported as Muhammad Habib v. Mst. Saila Bibi and others (2008 SCMR 1584), Ashfaq Ahmad v. Judge, Family Court, Okara and another (2007 YLR 1550), Muhammad Anwar v. Shamim Akhtar and others (2007 CLC 195) and Rahman Gul v. Nizakat Bibi and another (2007 MLD 551).

10. In addition thereto, although the provisions of Qanun-e-Shahadat Order are not as such applicable to the proceedings of family cases, yet the Family Courts Act, 1964 empowers the court to make its own assessment. In this regard reference can be made to the cases of Shafique Sultan v. Mst. Asma Firdous and others (2017 SCMR 393), Muhammad Farhan v. Mst. Samina Saddique and others (2019 MLD 1145) and Muhammad Ahmad v. Additional District Judge and others (2019 CLC 89). Article 129 of Qanun-e-Shahadat Order also gives powers to the Court to form an opinion about the evidence produced. Record shows that both the Courts below have critically examined the evidence on record and have rightly decided the matter in hand.

11. In view of what has been discussed above, instant writ petition having no merits stands dismissed. No order as to costs.