P L D 2005 Peshawar 77 (PLP)

SHAHZAD AKBAR KHAN, J.‑‑‑This Constitutional petition is presented by Mst. Bibi Inayat Sultan and Mst. Musarrat Bibi calling in question the judgment and decree dated 4‑3‑2004 passed by Additional District Judge‑II, Abbottabad who on the acceptance of appeal of respondent set aside the judgment and decree dated 11‑4‑2002 passed by Judge Family Court, Abbottabad.

2. The short facts relevant for the disposal of this petition are that petitioner No. 1 is the wife whereas petitioner No.2 is the daughter of respondent Sardar Habib Khan. They had filed a suit for the recovery of maintenance at the rate of Rs.5000 per month each from 1998 till decision of the case and thereafter. The suit was resisted by respondent and pursuant to relevant issues framed out of the rival pleadings the parties adduced their evidence. The learned trial Judge, however, on evaluating the evidence of parties passed a decree for maintenance at the rate of Rs.400 for the past 3 years till decision of suit to favour of petitioner No. 1 and at the same rate for the past 3 years and at the rate of Rs.1,000 per month for future till marriage in favour of petitioner No.2. Such a judgment and decree was challenged by way of appeal and the learned Additional District Judge‑II, Abbottabad after hearing the parties allowed the appeal and dismissed the suit of petitioners. 3: It is not controverted before us that petitioner No. 1 was divorced by respondent through a divorce deed Exh.D.W.1/1 in support whereof Syed Sabt‑e‑Hussain was examined as D.W.1 who admitted the correctness of his seal and signature on the divorce deed. The learned counsel appearing on behalf of petitioners when confronted with the factum of divorce merely stated that the divorce deed was not sent to the Chairman. Union Council concerned, therefore, it could not operate against the claim of petitioner No.

1. The learned counsel, however, focused his entire emphasis on the case of petitioner No.2 and urged that she being the daughter of respondent is entitled to receive maintenance from respondent for indefinite period. He also argued that even if the daughter is doing job and is an earning hand the respondent cannot be relieved of his responsibility to make payment of maintenance to his daughter.

4. We have considered the arguments of learned counsel for petitioners in the light of record and the law on the subject. As per record petitioner No. 1 was married to respondent in the year 1956. Two daughters were born to the spouses, one namely Kasuar Parveen who is married while the other is petitioner No.2 who was 35 years old at the time of recording the evidence and is serving as teacher in F.G. Girls School. Admittedly both the petitioners left the house of respondent 20 years back. The learned Appellate Court has also recorded the admission of petitioner No.2 who stated that she along with her mother left the house of respondent 20 years back and since then she never visited the house of respondent nor ever contacted him. The cause of leaving the house of respondent was that respondent wanted to marry his elder daughter Mst. Kausar against the wishes of petitioner No.1 who was subsequently married by petitioner No.1 to a person who had already three wives The learned Appellate Court also took notice of the admission of petitioner No.2 who stated that she is serving as a teacher since 1987 and receiving salary of Rs.3400 per month. She also admitted that the cause of strainity of relations between the parties was marriage of her elder sister Mst. Kausar.

5. The analysis of evidence clearly indicates that petitioner No. 1 had forsaken the house of respondent for the simple reason that respondent proposed the marriage of his elder daughter to a person who was not acceptable to petitioner No.1 and it is also a matter of record that Mst. Kausar was married by petitioner No.1 to a person who had already three wives. The wife was in the circumstances not justified in deserting the house of her husband. She was also accompanied by petitioner No.2 and ever since their desertion the petitioners never cared about respondent.

6. Undoubtedly a father is under an obligation to maintain his children and the maintenance of son would last till he attains the age of puberty while the liability to maintain a daughter would remain till she is married and the custody of minor children with the mother during their infancy would also not relieve the father from the obligation of maintaining them. However, there is a legal condition that the father is not bound to maintain a child who is capable of being maintained out of his or her own property. The relevant provision governing the instant controversy vis‑a‑vis petitioner No. 2 in section 370 of Mulla's Mahomedan law which, owing to its relevancy, is, reproduced below: "

370. Maintenance of children and grandchildren.‑‑‑(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S.352) does not relieve the father from the obligation of maintaining them (a) but the father is not bound to maintain a child who is capable of being maintained out of his or her own property. (2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be. (3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances".

7. Admittedly petitioner No.2 is doing a job and receives a reasonable amount of salary out of which she can very conveniently meet her expenses. No valid reason has been advanced as to why she is not getting married and has preferred to live with her mother who has also severed relations with respondent. In view of the above quoted law we feel that respondent, in the circumstances, cannot be saddled with the responsibility to make payment of maintenance to petitioner No.2 for the whole life when she has chosen to remain unmarried. The wife also stood divorced and the mere fact that the divorce deed was not sent to the Chairman Union Council was validly tackled by the learned Additional District Judge while placing reliance on 1994 SCMR 2098 and 1992 SCMR 1273. We have also noticed that the petitioner No. 1 had left the house of respondent without sufficient reasons.

8. Resultantly, this Constitutional petition being destitute of merits is dismissed in limine. H.B.T./315/P Petition dismissed.