2009 PLP 819 (CLC)

IJAZ AHMAD CHAUDHRY, J.

This order will dispose of Writ Petition No.2073 of 2009 filed by Azhar Siddique against the orders, dated 5-6-2007 passed by respondent No.2 and order, dated 31-12-2008 passed by respondent No.1 against the petitioner and in favour of respondent No.3.

2. The brief facts of the case are that the petitioner and respondent No.3 were married to each other on 2-3-2003 their relationship for few months remained cordial. Then according to the petitioner respondent No.3 left the house without the permission of the petitioner and started living with her parents. The claim of the petitioner is that he tried his level best to solve the dispute but when the same could not be resolved on 12-2-2007 he sent a notice of divorce to respondent No.3. The petitioner's claim is that respondent No.3 had filed an application for maintenance amounting to Rs.30,000 per month before respondent No.2 and he came to know about the said order when he was served upon through a notice for the execution of order, dated 5-6-2007 that respondent No.2 had granted monthly maintenance to respondent No.3 at the rate of Rs.20,000 per month for the last 40 months, The petitioner filed a revision petition before respondent No.1 in which respondent No.3 was also summoned and respondent No.1 reduced the amount from Rs.20,000 to Rs.3,000 per month for the period of 36 months. The petitioner has challenged both the orders through this writ petition.

3. Learned counsel for the petitioner contends that respondents Nos.1 and 2 had passed the orders without recording any evidence about the financial position of the petitioner; that it has been repeatedly held by this Court and the august Supreme Court of Pakistan that the maintenance could only be imposed keeping in view the financial position and after recording evidence of the parties by the Family Court or the Arbitration Council, but in the present case the forums below have acted in a mechanical manner without taking into consideration that the petitioner had already divorced respondent No.3, who herself had left the petitioner and was not entitled for any maintenance. Relies upon Muhammad Aslam v. Muhammad Usman and others 2004 CLC 473, Major (Retd) Alla-ud-Din Akhtar v. The Collector and others 1985 CLC 2939 and Tayyab Khan v. Nadia Khan 2000 CLC 558 in support of his contentions.

4. On the other hand learned counsel appearing on behalf of respondent No.3 opposes this petition on the ground that when the ex parte order was passed by respondent No.2, there was no occasion to record the evidence of the parties. It is also contended that the amount has already been reduced to Rs.3,000 without taking into consideration that the income of the petitioner was much more than he has mentioned in his application and the writ petition may be dismissed.

5. I have heard the learned counsel for the parties and also perused the impugned orders. Respondent No.1 on 5-6-2007 had passed the order on the back of the petitioner and even without recording the evidence of respondent No.3 about the financial status of the petitioner to determine the ability of the petitioner to make payment of the maintenance and the maintenance should commensurate with the income of the petitioner as well as the other responsibilities of the petitioner. In the above said case-law it has been settled that before the imposition of the maintenance on the husband it is mandatory for the Court or the Arbitration Council to record evidence about the status of the husband and his ability for making the payment to his wife as per his resources. In the present case without recording the evidence in this behalf the maintenance has been awarded to respondent No.3 through the impugned orders on presumption which being not sustainable in the eyes of law are set aside by accepting this writ petition. The application moved by respondent No.3 will be deemed to be pending before respondent No.2/Arbitration Council who is directed to decide the same afresh within two months in accordance with law after recording the evidence of the parties about the matter in issue. The parties shall appear before respondent No.2 on 27-4 2009. H.B.T./A-89/L Petition accepted.