PLJ 2023 Lahore 143
[Rawalpindi Bench, Rawalpindi]
Present: Jawad Hassan, J.
versus
ADDITIONAL DISTRICT JUDGE and others--Respondents
W.P. No. 2832 of 2018, heard on 25.1.2022.
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----Ss. 8 & 9--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage and recovery of maintenance allowance--Decreed--Held: Entitlement for lump sum for iddat period--Appeal of respondent was partially accepted--Modification in judgment--Financial status--Petitioner was not attached any document with written statement regarding his financial status--Petitioner had ample opportunity to prove his financial status even at documentary stage and till decision of suit but not only he, rather his witness, failed to do so--Petitioner has deliberately hidden his source of income from Court just to avoid payment of maintenance allowance to minors--Appellate Court, while considering evidence and needs of minors, enhanced maintenance allowance as no documentary proof was produced by Petitioner before it--Respondent No.3 has failed to bring on record any document to prove income of Petitioner as alleged--Both parties have failed to make out their case in any manner for interference in findings of fact of Courts below which is based on oral as well as documentary evidence produced by parties--Petition dismissed.
[Pp. 147, 148 & 149] B, C, F, G & H
Constitution of Pakistan, 1973--
----Art. 199--Exercising of lawful jurisdiction--Maintenance--Findings on fact recorded by a competent court in exercise of lawful jurisdiction cannot be agitated by invoking writ jurisdiction under Article 199 of Constitution unless same suffer from any legal infirmity, jurisdictional error or perversity causing serious miscarriage of justice. [P. 146] A
PLD 2013 SC 557 ref.
Words and Phrases--
----“Maintenance” means and includes food, clothing, and lodging which is responsibility of father to pay to his children and wife.
[P. 147] D
Words and Phrases--
----“Legal obligation”--Minors are entitled to be maintained by father in manner befitting status and financial condition of father and for this reason Family Court is under an obligation while granting maintenance allowance, to keep in mind financial condition and status of father--Courts are under legal obligation to make an inquiry in this regard. [P. 148] E
Mr. Majid Ali Butt, Advocate for Petitioner.
Ms. Shahida Tanveer, Advocate for Respondents.
Date of hearing: 25.1.2022.
Judgment
Through this single judgment, this Court intends to decide the titled petition as well as Writ Petition No.2682 of 2018 filed by the Respondents as both the petitions have been filed against the same judgments and decrees.
2. For the sake of clarity, Zia Hussain is to be referred as (the “Petitioner”, whereas, Mst. Asma Saleem and others are to be referred as (the “Respondents”).
3. The Petitioner has called in question judgments and decrees of the Family Court as well as Appellate Court, dated 25.04.2018 and 01.09.2018, respectively, whereby maintenance allowance in favour of the Respondents has been fixed on higher side. Writ Petition No.2832 of 2018 has been filed by the Petitioner for reduction of the maintenance allowance. On the contrary, the Respondents through W.P.No.2682 of 2018 have assailed the judgments and decrees of the Courts below for enhancement of their maintenance allowance.
4. The facts of the case are that the marriage of Petitioner and the Respondent No.3 was solemnized on 27.11.2003 and they were blessed with two children namely Muhammad Moazam Zia and Abdul Rafay (hereinafter to be referred as “minors”). Due to strained relations between the spouses, the Respondents filed a suit for dissolution of marriage on the basis of khulla, recovery of maintenance allowance and dowry articles. The said suit was contested by the Petitioner by filing written statement, however, the suit was decreed to the tune of Rs.10,000/- per month for each minor from January, 2016 along with 10% annual increase till their age of majority. Mst. Asma Saleem, was held entitled to recover Rs.30,000/- lumpsum only for iddat period while she was also granted dowry articles as per list Ex.P3 except articles mentioned at Sr. Nos. 9, 12 to 14, 17, 18, 23 to 28, 30, 33, 35 and 36 or alternate price Rs.2,00,000/-. Feeling aggrieved thereof, both the parties preferred their respective appeals, however, appeal of the Respondents was partially accepted with modification while that of the Petitioner was dismissed in the following manner:
“In the light of above discussion, appeal of the appellants is accepted partially whereas appeal of the Respondents dismissed and the impugned judgment and decree is modified to the effect that plaintiffs No.2 and 3 shall be entitled to maintenance allowance at the rate of Rs.15,000/- per month from February, 2015 with 10% increase per annum till their legal entitlement whereas impugned judgment and decree to the extent of maintenance allowance of plaintiff No.1 and dowry articles is upheld”.
5. Learned counsel for the Petitioner inter alia contends that impugned judgments and decrees are the result of mis-reading and non-reading of material available on record; that the learned Trial Court wrongly assumed the financial status of the parties and prices of the dowry articles, therefore, confirmation, as well as, enhancement by the learned Appellate Court has been made under a wrong impression; that the maintenance allowance fixed by the Courts below is also exaggerative and has been awarded without looking into financial status of the Petitioner; that no proof of income of the Petitioner was tendered by Respondents and in absence thereof, fixation of maintenance allowance by the learned Courts below is against the norms of justice.
6. Conversely, learned counsel for Respondents contended that though the learned Appellate Court has modified the judgment and decree passed by the learned trial Court and increased the amount of maintenance allowance yet it is not sufficient to cater with daily needs of minors; that the lower Appellate Court has failed to consider the fact that one minor is serious patient of knee joints who needs proper medication and treatment for which monthly expenses at higher rate are required while the other minor is studying in PAF College, he, too, is in dire need of his educational expenses; that the Petitioner belongs to a rich family and he can easily pay more maintenance to his children.
7. I have heard the arguments of learned counsel for the parties and perused the record.
8. It is an established principle that findings on fact recorded by a competent court in exercise of lawful jurisdiction cannot be agitated by invoking writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 unless the same suffer from any legal infirmity, jurisdictional error or perversity causing serious miscarriage of justice.
9. Plea of the Petitioner is that the Courts below have awarded maintenance allowance at exorbitant rate which he is unable to pay. While the stance of the Respondents is that the Petitioner has strong financial status, who earns handsome income and can easily pay maintenance allowance as prayed for.
10. Admittedly a suit for dissolution of marriage on the basis of khulla and maintenance allowance was filed by the Respondents on 17.12.2016. The Petitioner entered appearance and filed written statement on 27.01.2017. The Family Court keeping in view the evidence of the parties, decreed the suit vide judgment and decree dated 25.04.2018 by awarding maintenance allowance to the minors @ Rs.10,000/- per month with 10% increase till their age of majority while the claim of the Respondents with regard to dowry articles to the tune of Rs.2,00,000/- as alternate price was allowed. The said Respondent was also held entitled to recover maintenance allowance @ Rs.30,000/- lumpsum for her iddate period only. The aforesaid judgment and decree was challenged by both the parties through separate appeals which was decided through consolidated judgment and decree dated 01.09.2018 whereby quantum of maintenance allowance was enhanced from Rs.10,000/- per month to Rs.15,000/- per month while remaining findings of the Family Court were upheld.
11. So far as the ground of the Petitioner with regard to fixation of maintenance allowance at higher side is concerned, it is an admitted position that the Petitioner is a MBBS doctor by profession and during cross examination he admitted that he has not annexed any document with regard to his income with written statement. It is noted that the Petitioner had ample opportunity to prove his financial status even at documentary stage and till decision of the suit but not only he, rather his witness, failed to do so which is clear violation of Section 9 of the Act. Evidence produced by the Petitioner depicts that he had concealed his sources of income from the stage of filing written statement till decision of lower appellate Court and there existed contradictions in the statements on behalf of Petitioner and his father, who was a witness, regarding source of income. The Petitioner appeared as DW-1 and admitted in his affidavit Ex.D1 that he earns Rs.30,000/- per month, for which he has not brought any salary slip to controvert the stance of the Respondents while on the other hand the father of the Petitioner appeared as DW-2 and deposed that the Petitioner pays maintenance allowance after lending money from his brothers and sisters. These contradictions on behalf of the Petitioner and his father clearly reflect the fact that the Petitioner has deliberately hidden his source of income from the Court just to avoid the payment of maintenance allowance to the minors. The Hon’ble Supreme Court of Pakistan in the case reported as "Muhammad Asim versus Mst. Samro Begum and others" (PLD 2018 SC 819) has held that “if the husband/father fails to disclose his salary or financial earnings, adverse inference would be drawn against him”. ‘Maintenance’ means and includes food, clothing, and lodging which is the responsibility of the father to pay to his children and wife. In this regard, it is noted that Section 17(A) of the Act specifically provides in sub-section to fix maintenance. The Honorable Supreme Court of Pakistan has considered the aforesaid issue in the case of “Humayun Hassan versus Arslan Humayun and another” (PLD 2013 SC 557) and held as under:
“Again in interpreting the word “maintenance” some reasonable standard must be adopted. Whilst it is not confined merely to food, clothing, and lodging, it cannot, by any stretch of the imagination, be extended to incorporate within its education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus it may not be sufficient to say that the child of a tradesman can maintain itself by working as coolly or by thieving. What is required is that the child must be maintained until it is in a position to earn its livelihood, in an honest ad decent manner in keeping with its family status.
12. Under the law, a father is bound to maintain his children until they have attained the age of majority. The intent and purpose of the 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 proprietary 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 which admittedly has already taken place between the parties. 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. The minors are entitled to be maintained by the father in the manner befitting the status and financial condition of the father and for this reason the Family Court is under an obligation while granting the maintenance allowance, to keep in mind the financial condition and status of the father. The Courts are under legal obligation to make an inquiry in this regard. It cannot act arbitrarily or whimsically. But in this case, the Petitioner has deliberately concealed his financial status regardless of admitted fact that he is MBBS doctor by profession and runs a clinic.
13. The learned lower Appellate Court, while considering the evidence and needs of the minors, enhanced the maintenance allowance as no documentary proof was produced by the Petitioner before it, therefore, keeping in view the evidence and basic needs of minors, monthly maintenance allowance for minors was enhanced to
Rs.15,000/- per month with 10% annual increase. As far as the question of recovery of dowry articles is concerned, after taking into consideration the oral, as well as, documentary evidence of the parties, and while applying the concept of wear and tear, learned Family Court held that the Respondent No.1 is entitled to receive her dowry articles as per list provided as Ex.P3 except articles mentioned at Sr. Nos. 9, 12 to 14, 17, 18, 23 to 28, 30, 33, 35 and 36 and in the alternate, the price of the same was fixed as Rs.2,00,000/- which finding was upheld by the lower Appellate Court.
14. So far as the stance of the Respondents with regard to enhancement of maintenance allowance of minors is concerned, it evinces from the record that the Respondent No.3 has failed to bring on record any document to prove income of the Petitioner as alleged. Resultantly, the Family Court keeping in view the basic necessities of life of minors and in view of the available record, granted maintenance allowance to them @ Rs.10,000/- per month which was further enhanced by the lower Appellate Court @ Rs.15000/- per month with 10% annual increase till their age of majority.
15. In view of above reasons, both the parties have failed to make out their case in any manner for interference in the findings of fact of the Courts below which is based on oral as well as documentary evidence produced by the parties. Resultantly, both the captioned writ petitions having no merits are hereby dismissed.
(Y.A.) Petition dismissed
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