2011 MLD 571 (PLP)

AQEEL AHMED ABBASI, J.

Through instant petition the petitioner has impugned the judgments dated 31-8-2006 passed in Family Suit No.516 of 2004 by the learned IInd Family Judge Karachi South and judgment dated 14-4-2008 in Family Appeal No.53 of 2006 passed by IIIrd Additional District Judge, Karachi South, whereby suit for maintenance filed by the respondents Nos. 1 and 2 was decreed in favour of the respondents, which finding was duly confirmed by the learned Appellate Court.

2. The brief facts relevant for the purposes of disposal of the instant petition are that the petitioner was married to respondent No.1 on 14-1-2000 in accordance with Sunni Muslim Law and a sum of Rs.50,000 was fixed as dower amount being consideration of the said marriage, which as per respondent was duly paid. Out of such wedlock, one mail child namely, Muhammad Uzair was born on 31-1-2001. It appears that after marriage the relations of the couple could not remain cordial and on account of such strain relations, the marriage was dissolved on pronouncement of Talaq by the petitioner through Divorce Deed dated 26-5-2004. As per contents of the plaint in suit, the respondents Nos. l and 2 were left at the gate of the parents of respondent No.1 by the petitioner on 29-3-2002. Whereafter, as per respondent No.1, the petitioner never came to take respondents Nos.1 and 2 back to his house nor maintained the respondents during such period. The respondent No.1 claimed to have been spending about Rs. 10,000 per month for her maintenance and Rs.8,500 plus 4,890 with effect from 1-1-2004 towards maintenance and educational expenses of respondent No.2. The respondent No.1 as per contents of the plaint admitted to have received 'a pay order dated 2-3-2003 for an amount of Rs. 12000 by the petitioner thereafter the petitioner filed a Guardian and Ward Application for the custody of the minor and started to send Rs.2000 after each alternative month as maintenance of the minor, which as per contents of the plaint, were discontinued after month of April, 2004. It was contested in the plaint that the petitioner is an Architect by profession and employed in Messrs Gul Tahriani and Co. Saddar, Karachi and reportedly drawing handsome salary. Besides this, it was further alleged that the petitioner owns a double store Bungalow No.62/11/11, Khyaban-e-Badar. Phase-V, Defence Housing Authority, Karachi and getting Rs.40,000 as rent and as such earning 'monthly income of more than Rs.50,000 per month. The respondent No.1 claimed past maintenance for herself and for respondent No.2 as well as maintenance for the period of Iddat in the following manner:-- (a) To direct the defendant to pay the past maintenance of plaintiff No.1 at the rate of Rs.10,000 p.m from the month of April, 2002 till 25-5-2004. (b) To direct the defendant to pay iddat maintenance 'of plaintiff No.1 at the rate of Rs.10,000 p.m. w.e.f. 26-5-2004 to 25-8-2004 (c) To direct the defendant to pay maintenance of plaintiff No.2 at the rate of Rs.8500 p.m. w.e.f April, 2002 till the disposal of this case and continue the same at the same rate with the increase of 20% per annum. (d) To direct the defendant to pay educational expenses of the plaintiff No.2 @ of Rs.4890 per month w.e.f. 1-1-2004 with the increase of 20% per annum. The defendant may further be directed to pay the admission fee/security deposit of plaintiff No.2 Rs.16,000.

3. The petitioner filed written statement denying the allegation of maltreatment and having deserted the respondents Nos.1 and

2. It was stated that the respondent No.1 had herself left the house of the petitioner voluntarily and took the respondent No.2 along with her on 29-3-2002 and left behind a written note to this effect. As per contents of the written statement, it was stated by the petitioner that in spite of best efforts and intervention of the elders of the family, the respondent No.1 and her parents did not reconcile with the situation and refused to negotiate a compromise between the parties whereas respondent No.1 decided to leave petitioner, which eventually led to pronouncement of Talaq by the petitioner to the respondent No.1 vide Divorce Deed dated 26-5-2004..

4. The learned IInd Civil and Family Judge, Karachi South, settled the following issues: (1) Whether the plaintiff No.1 is entitled for past maintenance at the rate of Rs.10,000 from April, 2002 till 25-5-2004 or not? (2) Whether the plaintiff No.1 is entitled for maintenance of Iddat period at the rate of Rs.10,000 from 26-5-2004 to 25-8-2004? (3) Whether the plaintiff No.2 is entitled for maintenance of Rs.8,500 from April, 2002 till the disposal of this case and continue the same rate with the increase of 20% per annum or not? (4) Whether the plaintiff No.2 is entitled for educational expenses or not? (5) What should the decree be?

5. The evidence was led by both the parties. Initially the respondent No.1 appeared before the learned IInd Family and Civil Judge, Karachi South and recorded her evidence as P.W.1 as Exh.P/1. In support of her claim, she also examined her father as P.W.2 as Exh.P/2. Both the witnesses were cross-examined by the learned counsel for the petitioner. Thereafter on 29-7-2006, post trial proceedings were held between the parties and another attempt for reconciliation was made which effort also failed and the matter was adjourned for final arguments. Whereafter final judgment was pronounced on 31-8-2006. The learned Family Judge after examining the record and evaluating the evidence produced by the parties decided the Issues Nos.1 and 2 by holding that the respondent No. 1 is entitled for her maintenance at the rate of Rs.3,000 front April, 2002 till her Iddat period. While deciding Issues Nos.3 and 4, the learned Family Judge has allowed the maintenance with educational allowance to the respondent. No.2 at the rate of Rs.6,000 per-month from the date of filing the suit till the age of majority with increment of 20% per annum, whereas Issue No.5 decided in consonance with the finding of Issues Nos. 1 to

4. It appears that such judgment was assailed by both the parties through Family Appeal No.53 of 2006 filed by the petitioner and Family Appeal No.56 of 2006 filed by the respondents, which appeals have been disposed of by the learned IIIrd Additional District Judge,. Karachi South by a common judgment dated 14-4-2008, whereby order passed by the learned IInd Civil and Family Judge (South) Karachi has been maintained and both the appeals filed by the parties were dismissed. The respondent did not file appeal against such dismissal, whereas the petitioner has assailed the impugned judgment through instant petition.

6. The learned counsel for the petitioner has assailed both the impugned judgments on the ground that both the courts below have seriously erred in law and fact by not appreciating the evidence produced by the parties and the impugned judgments are based on non-reading and mis-reading of evidence. It has been contended by the learned counsel for the petitioner that in fact, it was respondent No.1, who had admittedly left the house of the petitioner voluntarily along with respondent No.2 and did not allow the petitioner to even meet with the minor child during this period. Per learned counsel, the claim of maintenance by the respondent No.1 without performance of conjugal rights and discharge of her marital obligation is misconceived and cannot be claimed as a matter of right. Learned counsel further submitted that both the courts below have failed to ascertain the financial position of the petitioner who is a salaried person and has submitted a Salary Certificate from his employer which could not be rebutted by the respondent. It is further contended that both the courts below have also failed to acknowledge and adjust undisputed amount paid by the petitioner towards maintenance of respondent No.2 during the period on which the respondent No.1 chosen to remain with her parents. Per learned counsel, the respondent No.1 is only entitled for maintenance for the period of iddat i.e. with effect from pronouncement of Talaq i.e. 26-5-2004 to 26-8-2004. As regards maintenance of respondent No.2 the learned counsel argued that it was the duty of the courts below to examine the status and financial capacity of the petitioner in consonance to which the amount of maintenance could be determined by the learned Family Judge. Per learned counsel, admittedly the only documentary evidence with regard to income of the petitioner was a Salary Certificate whereby salary of Rs.11,750 per month was being received by the petitioner, whereas the alleged rental income in respect of the house did not accrue to the petitioner during the relevant period as the said house was already sold in the year 2003. Learned counsel for the petitioner further submitted that the 20% yearly increase in the amount of maintenance is also exorbitant particularly while looking at the financial position of the petitioner. In support of his arguments, learned counsel has placed reliance on the following judgments:- (1) Muhammad Ali v. Mst. Ghulam Fatima AIR 1935 Lahore 902 (2) Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 (3) Mst. Sherinzadgi v. Gul Muhammad PLD 1961 (W.P) Peshawar 66 (4) Mst. Resham Bibi v. Muhammad Shafi PLD 1967 (AJ&K) 32 (5) Zafar Hussain v. Begum Farzana Nazli, and others PLD 2004 Lah. 349 (6) Muhammad Aslam v. Muhammad Usman, and others 2004 CLC 473 (7) Muhammad Abdul Rashid v. Mst. Shazia Parveen and others 1987 SCMR 670

7. Conversely, learned counsel for the respondent has vehemently opposed the maintainability of the instant petition and submitted that since there is concurrent finding of two courts below, which are based on appraisal of the evidence adduced by both the parties the same cannot be assailed by filing constitutional petition. It is further contended that no factual or legal error in the impugned judgments has been pointed out by the learned counsel, whereas the amount of maintenance as claimed for the respondents Nos.1 and 2 has already been substantially reduced by the learned Family Judge. Learned counsel further submitted that the petitioner is the only son of his parents, who lived in Defence Housing Authority and is an Architect by profession can easily make the payment of maintenance granted by the courts below. Per learned counsel, the respondent No.1 is spending huge amount towards maintenance and education of the minor child as evident from the evidence produced in this regard, whereas the petitioner is avoiding to fulfill his legal and moral obligation. Per learned counsel, the scope of constitutional petition in family matters relating to determination of amount of maintenance is limited and unless it is found that the impugned judgments are perverse or based on mis-reading or non-reading of evidence, no interference is required under such circumstances. In support of his contention, learned counsel has placed reliance on the following judgments. (1) Sajjad Ahmad v. Mst. Naeema Shafiq and 3 orders 2003 CLC 1420 (2) Fazal Khitab v. Naheed Akhtar and another PLD 1979 SC 864 (3) Khalil Ahmed v. Allah Rakhi 1994 MLD 119.

8. I have heard both the learned counsel and perused the record. The instant petition has been filed against the concurrent finding of the learned Family Court and the learned Appellate Court having jurisdiction to try the family matters relating to maintenance allowance of the wife and the minor child. From pleadings, it appears that an amount of Rs.10,000 from the month of April, 2002 till 25-5-2004 (i.e. date of divorce) was claimed as maintenance with further amount of maintenance at the rate of Rs.10,000 per month w.e.f. 26-5-2004 to 25-8-2004 for the iddat period for the respondent No.1 (wife) whereas an amount of Rs.8500 per month w.e.f. April, 2002 till disposal of the case with increase of 20% per annum was claimed from respondent No.2 i.e. minor child along with educational expenses in the sum of Rs.4,890 per month w.e.f. 1-1-2004 with increased of 20% per annum and the admission fee amounting to Rs.16,000 was also claimed for respondent No.2. It appears that the claim of the respondent regarding monthly income of the petitioner i.e. including-rental income and the salary income aggregating to Rs.50,000 per month could not be established through positive evidence as neither any document in relation to the property or any rent receipt was produced by the respondent. On the contrary, the petitioner specifically denied receipt of any rental income during relevant period whereas it was, stated that the house was in the name of his father and was even sold out in the 2003, whereas the entire amount of sale proceeds were received by the father of the petitioner, who according to him was the actual owner. The petitioner also filed a certificate issued by Gul Tahriani dated 19-11-2004 (Exh.B/13 available at page 121 of the file), showing an amount of Rs.11,750 as monthly salary of the petitioner. It appears that the respondent could not dislodge the documentary evidence regarding financial status of the petitioner.

9. It will be appropriate to reproduce the relevant evidence of the parties to ascertain the factual position. The respondent No.1 (P.W.1) in her examination-in-chief, recorded on 13-5-2005 has stated that "before divorce the defendant sent a copy of Pay-Order-of Rs.12,000 and after that the defendant sent at the rate of Rs. 1000 per month in the shape of Pay Orders of Rs.2000 in alternate month. During her cross-examination she has further stated that it is correct to suggest that before divorce I accept the Pay Order but after divorce I refused to take the Pay Orders, which were sent by the defendant. It is correct to suggest that I did not attach any salary slip with my plaint. It is correct to suggest that I did not prove any evidence regarding the selling of Bungalow from defendant. The respondent No.1 further stated that it is incorrect to suggest that the defendant left me at my parents house on 29-3-2002 on my wish or desire. It is incorrect to suggest that I written annexure 'E' on my desire. Similarly, P.W.2 namely Abdul Rasheed Chaudhry, father of the respondent No.1, in his cross-examination has stated that it is correct to suggest that I did not produce any documentary evidence regarding pregnancy expenses. It is correct to suggest that plaintiff did not produce any documentary prove regarding the salary of the defendant with the plaint. It is correct to suggest that I did not produce any documentary proof regarding the selling of the Bungalow of the defendant."

10. The petitioner in his cross-examination has stated that "it is correct to suggest that I did not pay iddat maintenance. It is incorrect to suggest that at the time of marriage I gave one Bungalow 61/1/2, Phase-V. DHA on rent of Rs.40,000 per month. It is incorrect to suggest that above said Bungalow, my father gave me as a gift. It is correct that plot was in my father's name. It is incorrect to suggest that the above Bungalow is in my name and I sold out the above Bungalow."

11. After examining the evidence the learned Family Judge passed the impugned judgment and decree, wherein he has substantially reduced the amount of maintenance, as against the claim of respondent, however the suit has been decreed in favour of respondents. The findings of the learned Family Judge found favour with the learned Appellate Court who after having considered the evidence on record concurred with the findings of the learned Family Judge.

12. There is no cavil to the proposition that it is the duty of a husband to maintain his wife and children according to his financial status, however, if the wife chooses to leave the house of husband voluntarily and without any lawful excuse, such claim of maintenance usually vitiates unless agreed upon between the spouses otherwise. Similarly, it is the duty of Family Judge to determine the financial status of the husband while deciding the amount of maintenance of the wife and children. Social status of the father and legitimate financial sources would constitute an eminent factor while determining the maintenance payable by him. It is also relevant to determine a fact as to whether the husband has deserted the wife and defaulted in maintaining her or whether it was on account of the voluntary desertion by wife refusing to come back to the house of husband without any lawful excuse. Reference in this regard can be made to case of (i) Muhammad Abdul Rashid v. Mst. Shazia Parveen and others 1987 SCMR 670 (ii) Muhammad Aslam v. Muhammad Usman, and others 2004 CLC 473 and (iii) Zafar Hussain v. Begum Farzana Nazli, and others PLD 2004 Lah. 349.

13. In the instant case it appears that though, while determining the amount of maintenance of wife and minor child, the learned Family Judge has taken care of social and financial status of petitioner and has determined' the amount of maintenance to much lesser amount as claimed by the respondent. However, it appears that both the learned Courts below failed to determine as to whether the respondent No.1 left the house of the petitioner voluntarily, without any lawful excuse, or it was 1 on account of cruel treatment and the default on the part of petitioner, failing to maintain the respondent No.1. It is also noted that there is no finding as to whether, under the facts and circumstances of the case, where there is a handwritten note of respondent No.1 i.e. wife, acknowledging the fact of leaving the house of petitioner voluntarily without mentioning any lawful excuse, the past maintenance can be claimed as a matter of right or not.

14. In the case of Muhammad Ali v. Mst. Ghulam Fatima reported as AIR 1935 Lahore 902, it has been held that, where a Mahomedan wife deserts her husband of her own accord, stays with her parents and does not perform her marital duties, she is not entitled to maintenance, as under Mahomedan Law no wife can claim maintenance unless she is prepared to perform her marital duties and resides with him.

15. In the case of Mst. Sherinzadgi v. Gul Muhammad reported as PLD 1961 (W.P.) Peshawar 66, it has been held that, where there is no reliable evidence to establish any default of the part of the husband and it was the wife who deliberately refused to return to her husband's house, the husband was under no duty to provide for her maintenance in her parent's house and therefore it was futile to argue "that the husband had neglected or had failed to provide for her maintenance" or "that the husband has failed to perform without reasonable cause his marital obligations for a period of three years."

16. In the case of Mst.Reshman Bibi v. Muhammad Shafi reported as PLD 1967 AJ&K 32, it has been held that, under Muhammadan Law there is no obligatory duty cast upon the husband to maintain the wife when she refuses to live with him. The right of the wife to obtain maintenance from the husband is subject to her living with him and if she refuses to live with him without reasonable cause, then she is not entitled to maintenance and the failure of the husband to provide her with maintenance in these circumstances would not entitle the wife to dissolution of the marriage tie.

17. In view of hereinabove pronouncement, it appears that though in terms of section 9 of the Muslim Family Laws Ordinance, 1961, the past maintenance can be claimed by a wife who is willing to perform conjugal rights and other marital obligations and has been deserted by the husband without any lawful excuse. However, if there is no default on the part of a husband towards maintaining, his wife nor there is any allegation of cruelty and immoral treatment against him, the right to claim past maintenance diminishes. In the instant case there is a hand written note by respondent No.1, produced as Ex.B/8 available at page 109 of the file which reads as follows:-- "I am leaving my husband Kashif and his house today because I believe we cannot continue to live with so many clashes. No person anywhere has forced me to make this decision and I do not intent to change my mind. This is my independent decision to separate ways with Kashif. (Sd.) Naila Kashif Date: 29th March, 2002." The execution of this document has not as such been denied by the respondent No.1 nor there has been any material produced by the respondent which could establish that the petitioner has defaulted in maintaining the respondent No.1 without any lawful excuse. On the contrary, it has come on record that the respondent No. 1 has left the house of the petitioner voluntarily on 29th March, 2002 and chosen to reside at the house of her parents along with minor child instead of coming back to the house of the petitioner and to perform marital obligations. It is pertinent to observe that annual increase of 20%' towards maintenance is based upon no evidence whereas no reasons have been assigned by both the courts below for such determination.

18. Under the facts and circumstances of this case, it appears that the respondent No.1 voluntarily left the petitioner without any lawful excuse and did not, perform her marital obligations. It appears that no evidence or 'material has been produced by the respondent No.1 which could lead to the conclusion that the petitioner maltreated the respondent or committed default in maintaining the respondent No.1 without any lawful excuse. Accordingly, I am of the view that the claim of respondent No.1, seeking past maintenance for the period when she herself by voluntarily deserting the petitioner, chose to remain in the house of her parents without any lawful excuse, was misconceived and not justified under the facts and circumstances of this case. Both the Courts below have erred in law and facts by allowing such claim of maintenance to the respondent No.1 which is hereby set aside. Similarly, the annual increase at the rate of 20% per annum towards maintenance to both the respondents is based on no evidence nor any reasons have been assigned for determination of such yearly increase in the maintenance. However, keeping in view the inflationary trend and following the dicta laid down by the Hon'ble Supreme Court in the case of Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 Supreme Court 760 such annual increase at the rate of 20% is reduced to 5% per annum.

19. Keeping in view hereinabove facts, this petition is partly allowed and the impugned judgments and the decree passed by both the Courts below stands modified in the following manner: (i) Amount of maintenance as well as the period of such maintenance awarded by the courts below to respondent No.2 i.e. minor child is maintained whereas annul increase at the rate of 20% is reduced to 5%. (ii) Amount of maintenance awarded by the courts below to respondent No.1 is maintained, however the period of such maintenance is modified and the maintenance is allowed for the period of Iddat only. The instant petition along with listed applications, stand disposed of in the above terms with no order as to costs. A.R.K./K-39/K Order accordingl