2026 PLP 1103 (YLR)

Rozi Khan Barrech, J.

Through this petition, the petitioner has invoked the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer: "It is, therefore, respectfully prayed that this Honourable Court may be pleased to accept the appeal, set aside the impugned order dated 17.03.2021, passed by Family Judge, Family/Executant Court Gwadar and Judgment dated 27.09.2021 passed by Additional District Judge, Gwadar and may kindly be ordered for payment of 40 misqal gold in installments keeping in view the financial status of petitioner/judgment debtor in the interest of justice.

2. Any other relief which this Hon'ble Court deem fit and proper be granted to the appellant."

2. Brief facts of the case are that respondents Nos.1 to 5 filed a suit against the petitioner/judgment debtor for seeking 40 miskal gold and maintenance allowance of the minors, which was decreed by learned Family Judge, Gwadar ("trial court") on 13.05.2019 in favour of the respondents Nos.1 to 5/plaintiffs. After the announcement of the judgment and decree by the trial court, both parties felt aggrieved and filed appeals about their grievances before learned Additional District Judge Gwadar, and the same was dismissed. The decree holder/respondents No.1 to 5 had filed a writ petition against the judgment debtor before this court, and the same was accepted vide order dated 17.09.2020, and the maintenance allowance of the minors was enhanced from Rs.1000/- each to that of Rs.4,000/- each w.e.f. filing of the suit dated 19.05.2018 till the age of attaining a majority of respondent No.2 (Beebagar) and till the marriage of respondents Nos. 3 to 5 (Farzana, Rehana, and Suhaila).

3. Respondents Nos. 1 to 5 filed an execution application before learned Judicial Magistrate-II, Gwadar, and during the pendency of the execution application, the petitioner/judgment debtor filed an objection petition on the ground that the petitioner/judgment debtor is very poor with a very meager income and has another wife and children; therefore, the judgment debtor cannot manage to pay the maintenance amount in a lump sum and 40 miskal gold.

4. After hearing arguments of learned counsel for the parties, the learned Judicial Magistrate-II, Gwadar, overruled the objection filed by the judgment debtor and declined the request vide order dated 17.03.2021. Being aggrieved from the order dated 17.3.2021, the petitioner/judgment debtor filed an appeal under section 14 of the Family Courts Act, 1964 before learned Additional District Judge Gwadar, and the same was dismissed vide judgment and decree dated 27.09.2021. Whereafter the instant petition was filed.

5. We have considered the arguments advanced by learned counsel for the parties and have also perused the available record with their valuable assistance.

6. The learned Family Judge, Gwadar, decreed the suit of respondents No.1 to 5/decree holders vide judgment dated 13.5.2019 and the petitioner/ judgment debtor was directed to pay maintenance allowance to the minors and 40 misqal gold to respondent No.1. However, after passing the judgment and decree, the petitioner/judgment debtor on one pretext or the other played delay tactics in order to avoid payment of maintenance allowance to respondents Nos. 4 to 5/decree holder. Both under statutory law and Islamic Law, the father was obliged to provide maintenance to his children. The judgment of the Family Court directing the father was obliged to pay maintenance to his minor children was just and according to the situation demanded. Father was given an opportunity to deposit maintenance allowance, which had become due against him as a token of goodwill, but he had refused to deposit any amount. The conduct of the father/petitioner throughout the proceedings of the matter also did not entitle him to any discretionary relief. From the above circumstances, the conduct of the petitioner/judgment debtor from the outset has been rather dubious and shady.

7. There is no cavil to the proposition that the "conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court, in the exercise of writ jurisdiction, is bound to proceed on the maxim "he who seeks equity must do equity". Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law, especially of the law under which he is claiming entitlement. It is well settled that who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debito justitiae, but will only be granted if the petitioner can show that his conduct has not been such to disentitle him of such a relief. This jurisdiction of the High Court should not be exercised if it leads ultimately to a patent injustice. Reliance in this regard is placed on Manzoor Hussain v. Zulfiqar Ali (1983 SCMR 137), Abdul Wahid Khan v. Custodian of Evacuee Property (PLD 1966 Quetta 25) and Muhammad Arif v. Uzma Afzal (2011 SCMR 374).

8. The nutshell of the above discussion is that there is no jurisdictional defect which requires invocation of Constitutional Jurisdiction of this Court in the exercise of the jurisdiction conferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. No illegality or irregularity was committed by the learned Judicial Magistrate-II, Gwadar, as well as the learned Additional District Judge, Gwadar, while passing the impugned orders; as such, petition is hereby dismissed. UN/17/Bal. Petition dismissed.