2012 MLD 961 (PLP)

ABDUL WAHEED KHAN, J.

Briefly, the facts of the case are that on 11-3-2008 Mst. Ayesha Arshad and the minor Bism Imran filed a suit for maintenance allowance for both of them and recovery of dower amount and the dowry articles. Imran Ashraf petitioner had already filed a suit for restitution of conjugal rights against the respondent No.1 on 5-3-2008. After the settlement of issues and recording the evidence of the parties, the Judge Family Court vide judgment and decree dated 31-10-2008 decreed the suit. The operative part is as under:-- "As per my findings in issue No.4 the suit of the plaintiff for restitution of conjugal rights is decreed subject to payment of past maintenance allowance at the rate of Rs.3,000 per month from December, 2008 till decree of the instant suit and suit of the lady defendant is decreed to the effect that she is entitled to recover the dowry articles mentioned in page No.1 and Article No.10 of page No.2 of the list annexed with the plaint and she is entitled to get maintenance allowance at the rate of Rs.3, 000 per month from December, 2007 till the instant decree she may alsoget future maintenance subject to performing her marital obligation and minor defendant No.2 is entitled to recover maintenance allowance at the rate of Rs.2,000 per month from December,. 2007 till the operation of law. The maintenance allowance shall also enhance at the rate of 5% per annum and suit of the defendant for recover of dower amount is dismissed."

2. Both the respondents assailed the judgment and decree passed by the Judge Family Court through an appeal. The Appellate Court decided the appeal vide judgment and decree dated 12-3-2009. The operative part is as under: "The maintenance allowance is enhanced from Rs.2,000 to 5,000 per month, while regarding duration of maintenance allowance, findings of the learned trial Court are correct on law and fact. According to findings of learned trial court, Ayaisha Arshad was allowed past maintenance of Rs.3,000 per month from December, 2007 till the decree of the suit dated 31-10-2008." "the findings of the learned trial court on issue No.3 are hereby upheld to the extent of Ayaisha Arshad, while as discussed in the findings of this appeal, the rate of maintenance allowance of Bism Imran is increased and she shall be entitled to receive Rs.5,000 per month instead of Rs.2,000 per month, while findings of the learned trial court will remain intact in relation to other condition attached." "the appeal of the appellant is dismissed to the extent of suit of the respondent for restitution of conjugal rights and to the extent of recovery of dower amount while partially accepted to the extent of dowry articles and maintenance."

3. The petitioner-defendant has assailed the judgment and decree dated 12-3-2009 passed by the Appellate Court through this constitutional petition.

4. The counsel for the petitioner submits that he has the monthly income of the Rs.8,000/Rs.10,000 and that he can easily afford Rs.2,000/Rs.3,000 per month for the maintenance allowance of the minor. He submits that the respondent No.1 filed the exaggerated list of dowry articles and the suit has been decreed even to the extent of perishable items. He further submits that the Appellate Court erroneously enhanced the amount of the value of the dowry articles. With this submission, it is prayed that the impugned judgment and decree be set aside.

5. Conversely, the counsel for the respondents Nos. 1 and 2 submits that the petitioner is a rich man as his father and brothers are running factory and that an amount of Rs.5,000 as a maintenance allowance for the minor is not an excessive amount. It is submitted that this Court dc not possess the jurisdiction to substitute its own finding for that of Family Court. It is prayed that this writ petition be dismissed.

6. Arguments of the counsel for the parties have been heard. The Judge Family Court while decreeing the suit filed by respondent No.1 granted maintenance allowance at the rate of Rs.2,000 but the Appellate Court enhanced the same at the rate of Rs.5,

000. It is for the Family Court and Appellate Court to determine the rate of maintenance allowance keeping in view the financial status of the father. It has been held in Shah Jahan and others v. Syed Amjad Ali, Hawaldar and others (2000 SCMR 88), that to assess evidence or to determine the amount of maintenance was the function of the Family Court which has been vested with exclusive jurisdiction to decide such matters. When the High Court exercises Constitutional Jurisdiction, its powers are not analogous to those of an Appellate Court. Although it can strike down an order passed by a subordinate Court or a Tribunal as without lawful authority and of no legal effect but it cannot substitute its own judgment of that of the subordinate Court or Tribunal. An amount of Rs.5,000 as maintenance allowance of the minor does not appear to be excessive.

7. In view of foregoing discussion, there is no. merit in the writ petition and it is, accordingly, dismissed. M.W.A./I-13/L??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.