2004 PLP 1028 (YLR)

Sardar Tariq Sher Khan for Petitioner. In this Constitutional petition judgment/decree of respondent No.1 is in question whereby a suit for maintenance of respondent No.2 was decreed at the rate of Rs.1,000 per month.

2. Sehrish, respondent No.2, aged about 12 years is an unfortunate child of broken home. She is daughter of the petitioner and Mst. Mumtaz Bano who was divorced by the petitioner on 23-9-1999. Relations of her parents were strained and the petitioner had allegedly deserted mother of respondent No.2, about two years prior to the institution of the suit and had neglected and failed to provide for the maintenance of his daughter since then. In the suit maintenance allowance at the rate of Rs.2,000 per month was claimed by respondent No.2 since November, 1997.

3. The suit was contested by the petitioner on the grounds that he had been and is still providing maintenance allowance to his said daughter in spite of the fact that she is disobedient and as such is not entitled to any maintenance. The petitioner had prayed for dismissal of the suit.

4. After framing issues and recording evidence it was decreed by respondent No. 1 (Judge Family Court Multan) on 14-7-2003. Maintenance allowance was granted to respondent No.2 at the rate of Rs.1,000 per month w.e.f. September, 1999 till her marriage.

5. Learned counsel for the petitioner has urged that the said decree is void, without jurisdiction and is liable to be set aside for the reasons that quantum of maintenance allowance fixed by the Family Court is excessive and exorbitant; that the Family Court had erred in awarding maintenance since September, 1999 inasmuch as from evidence on record it was proved that petitioner had been paying maintenance to the respondent till 1-1-2001 hence the impugned judgment is the result of non-reading and. misreading of evidence and that it is contrary to law because a disobedient child is not entitled to maintenance. Reliance was placed on "Mukhtar-ul-Hassan Siddiqui v. Judge Family Court Rawalpindi and 4 others" 1994 CLC, 1216(LHR).

6. Petitioner's counsel has been heard. Writ petition and its annexures perused

7. Powers of High Court in Constitutional jurisdiction are not analogous to those of an Appellate Court. Constitutional jurisdiction can only be exercised if the) lower Court has exceeded its jurisdiction or acted without jurisdiction. When a Court possesses jurisdiction, finding of fact recorded by it cannot be disturbed merely on the ground that another view is possible on the same evidence unless that finding is based on no evidence, is fanciful or arbitrary.

8. Assessment of evidence or to determine the amount of maintenance was the function of the Family Court which is vested with exclusive jurisdiction to decide such matters. High Court in its extra ordinary jurisdiction can neither substitute finding of fact recorded by Family Court nor give its opinion about adequacy or quality of evidence.

9. Appraisal of evidence, assessment of its evidentiary value and drawing of inference therefrom was within the competency of the Family Court. A perusal of impugned judgment shows that findings are based on evidence and are also supported by plausible reasoning. No material piece of evidence appears to have been overlooked or misread. Keeping in view the prevailing cost of living; allowance of Rs.1,000 per month can hardly be deemed as exorbitant or excessive; it is not denied that respondent No.2 is getting education. Virtually no evidence was produced by the respondent to prove that he had been paying maintenance allowance to respondent No.2. While appearing as D.W.1, he had himself admitted during cross-examination that he -cannot produce any evidence to show that he had been paying maintenance allowance to respondent No.2 after September, 1999.

10. So far as the ground or disobedience is concerned, suffice it to say that neither the petitioner nor any of his witnesses had deposed anything about the said allegation. During cross-examination the petitioner had said that he does not want to give maintenance allowance to his daughter (respondent No.2) because she is disobedient to him. From the aforesaid bald and general one line statement, dis obedience of respondent No.2 was, not proved: No specific instance of dis obedience was mentioned.

11. The authority referred by the petitioner's counsel viz 1994 CLC 1216 (LHR) is not applicable to the facts and circumstances of this case as disobedience of respondent No.2 was not proved. In the aforesaid deported case maintenance allowance was refused to disobedient wife and a male child who had attained puberty. 11-A. The impugned judgment does not suffer from any jurisdictional infirmity hence this writ petition, being devoid of any merit is hereby dismissed in limine. M.A.W./K-5/L Petition dismissed.