1989 SCMR 1583 (PLP)

SAAR SAOOD JAN, J.‑‑The petitioner married Mst. Farida Altaf, respondent No.l on 11‑1‑1969. There were two issues of their marriage; one was a son who died in infancy and we are not concerned with him in these proceedings. The other is a daughter who is studying in the Kinnaird College, Lahore. Differences arose between the spouses. In 1980, respondent No.l filed 3 suits against the petitioner; one was for dissolution of marriage, the second was for maintenance and the third was for recovery of dower. On his part, the petitioner brought a suit for restitution of conjugal rights. The learned Family Judge held a joint trial of all the suits. He decreed the suit of the petitioner for restitution of conjugal rights and dismissed the suit of Mst. Farida Altaf for dissolution of marriage. He also dismissed the suit for maintenance but decreed the suit for the recovery of dower. Mst. Farida Altaf filed 3 appeals before the Additional District Judge. The petitioner too filed cross‑objections. By his judgment, dated 4‑4‑1984, the Additional District Judge accepted the appeals of Mst. Farida Altaf. He decreed the .suit for dissolution of marriage, dismissed the suit for restitution of conjugal rights and remanded the suit for maintenance to the Family Judge for determination of the amount as well as the period of the maintenance. After the remand the learned Family Judge allowed maintenance at the rate of Rs.5W per month to Mst. Farida Altaf till the expiry of the period of Iddat and at the rate of Rs.1,000 per month in respect of the daughter. On appeal by the petitioner, the Additional District Judge maintained the order with regard to maintenance of Mst. Farida Altaf but set aside the order with regard to the amount of maintenance granted in respect of the daughter. Mst. Farida Altaf filed a writ petition in the High Court to call in question the legality of the order of the learned Additional District Judge.

2. It appears that in the High Court both the petitioner as well as Mst. Farida Altaf appeared and made offers and counter offers. Ultimately, both parties agreed that the custody of the daughter should be awarded to the petitioner provided that he pay Rs.1,000 per month by way of maintenance to the daughter who would continue her studies in the Kinnaird College. The High Court disposed of the writ petition accordingly. The petitioner seeks leave to appeal from the order of the High Court.

3. In support of this petition it is contended that in the suit for maintenance Mst. Farida Altaf had asked for maintenance for herself alone. It was therefore not open to the High Court to give a direction for payment of maintenance for the daughter. It is denied that the petitioner had agreed before the High Court to the making of the impugned order. It is also stated that the circumstances of the petitioner are such that he could neither afford to pay Rs.1,000 per month to his daughter or permit her to continue her studies in the Kinnaird College, Lahore.

4. We have gone through the record placed before us. It is true that in her plaint, Mst. Farida Altaf had not asked for a separate maintenance for her daughter but in the amount that she had claimed for herself she had referred to her added responsibilities in looking after the daughter as well. It was, therefore not correct on the part of the Additional District Judge to disallow the maintenance granted by the learned Family Judge in respect of the daughter. We are not persuaded that there was no agreement between the parties before the High Court or that the order of the High Court was not based on the positions taken by the parties before it. We suggested to the learned counsel if he was prepared to allow the order of the learned Family Judge to be restored but he did not accept it, In the, circumstances, we do not think that this is a fit case where leave should be granted to the petitioner. The petition is dismissed. M.A.K/A‑505/S Petition dismissed.