2002 PLP 1275 (SCMR)

MUNIR A. SHEIKH, J‑‑‑Learned counsel for the petitioner does not press this petition qua respondents Nos.3 and 4, therefore, this petition qua the said respondents is dismissed as withdrawn.

2. The petitioner seeks leave to appeal against the judgment dated 9‑10‑2001 of the Lahore High Court, Bahawalpur Bench, trough which Constitutional petition filed by him has been dismissed.

3. Respondent No.2 filed suit before the Family Court at Rahimyar Khan for recovery of maintenance allowance for herself as wife of the petitioner and for respondents Nos.3 to 5 as his sons. It was contested by the petitioner qua respondents Nos.2 and

5. His case was that he had divorced Mst. Ghafooran Bibi in the year 1993 which became effective in 1995 and respondent No.5 was not his legitimate son as he was born in 1997 long after divorce had become effective.

4. The trial Court after considering the evidence documentary and oral produced by the parties came to the conclusion that Talaq allegedly given to respondent No.2 by the petitioner had been proved, therefore, respondent No.5 was not his legitimate son, therefore, these two respondents were not entitled to any maintenance allowance, as such, the suit qua them was dismissed whereas it was decreed qua respondents Nos.3 and 4 through judgment dated 31‑7‑1999. The appeal filed by respondent No.2 on her own behalf and also as guardian‑ad‑litem of respondent No.5 who was minor, was accepted by the First Appellate Court through judgment dated 6‑3‑2000. After considering the documentary and oral evidence, the said Court came to the conclusion that it was proved on record that plea of the petitioner that he had divorced respondent No.2 in 1993 was belied by the documentary evidence pertaining to year 1996‑

97. On acceptance of appeal, the suit of respondent No.2 was decreed as a whole against the petitioner and maintenance allowance was also allowed to her as wife and respondent No.5 as his son. The Constitutional petition filed by the petitioner has been dismissed by the High Court through the impugned judgment dated 9‑10‑2001 against which leave is sought.

5. The First Appellate Court took note of the fact that the respondent earlier also filed suit for maintenance allowance in the year 1996 (Exh.P‑1). In paragraph 1 of the plaint of the said suit, it was averred by her that she was wife of the petitioner and respondents Nos.3‑4 were his sons. This paragraph in the written statement was admitted as correct though in the preliminary objections, it was stated that he had divorced Mst. Ghafooran Bibi, respondent No.2, in the year 1993 which had become effective in 1995, The said suit was allowed to be withdrawn with permission to file a fresh suit which should have been objected to by the petitioner on the ground that she had no right whatsoever to file any suit for maintenance allowance as wife of the petitioner. The documentary evidence has also been examined by us and we find that only evidence produced by the petitioner about the alleged Talaq was Exhs.D‑4 and D‑5/certificates allegedly issued by the Union Council. No independent evidence was produced on record that he in fact sent divorce to respondent No.2 as required under the Family Laws Ordinance and thereafter gave intimation to the Union Council.

6. The findings of facts recorded by the First Appellate. Court and maintained by the High Court through the impugned judgment do not suffer from any legal infirmity such as misreading or non‑reading of any material piece of evidence, therefore, this petition being meritless is hereby dismissed and leave refused. Q.M.H./M.A.K./M‑399/S Petition dismissed.