1989 PLP 3345 (MLD)

Date of hearing: 14th December, 1988. This Constitutional petition assails the judgment and decree of District Judge Khushab whereby, he accepted the appeal filed by respondent No.1 and dismissed the suit for maintenance filed by the petitioners.

2. Briefly stated, the relevant facts are that the petitioner No.1 is the wife and petitioner No.2 is daughter of respondent No.1 Sultan Muhammad. According to the case of the petitioners, the petitioner No.1 was turned out of the house by the respondent No.1 whereafter the petitioner No.1 had started living with her parents where she gave birth to petitioner No.2. Since their the parties are living separately and no maintenance was being paid by respondent No.1 to the petitioners which obliged them to file a suit before the Judge Family Court Joharabad on 9th of April, 1984, claiming future maintenance and the arrears for the last three years at a rate of Rs.300 i.e. Rs.200 and Rs:100 per month for petitioners Nos. 1 and 2 respectively. The suit was contested by respondent No.1 by filing of written statement which. led to the following issues:‑ (1) Whether the plaintiffs are entitled to have maintenance allowance from the defendant? If so, at what rate and for which period? (2) Relief.

3. The parties produced their evidence. The learned Judge Family Court on 21st of March 1985 decreed the suit for maintenance filed by the petitioners and held them to be entitled to maintenance at a rate of Rs.75 per month each, in all Rs.150 with effect from the date of filing of suit i.e. 9th of April, 1984. As already mentioned the appeal filed by the respondent succeeded before the District Judge who dismissed the suit.

4. I have heard the learned counsel for the petitioners. No body has appeared for the respondents to contest this petition. It is now 11‑20 A.M.

5. After going through the record it is quite apparent that the judgment of the District Judge is not sustainable and is based on misreading of evidence as also misconception about true legal position. As regards the petitioner No.2 there is no denying the fact that she is the daughter of respondent No.1 and as a father he is under a legal obligation, to provide maintenance to his minor daughter irrespective of the custody till such time she attains the age of puberty. The learned District Judge while deciding the appeal had at all not adverted to this aspect of the case and appears to be oblivious of the fact that in the suit maintenance was claimed not only for the wife but also for the minor child.

6. As regards petitioner No.1, also the judgment of the District Judge is not sustainable. It is admitted on the record that respondent No.1 has contracted a second marriage without the consent of the petitioner or without having obtained permission under the Muslim Family Laws Ordinance 1961 from the Arbitration Council. It is also established on the record by the statement of the plaintiff P.W.1 that she was turn out by the respondent No.1. Cruelty of conduct towards her on the part of the respondent No.1 stands established on the record by the testimony of P.Ws 2 and 3 whose statements are read alongwith the statement of petitioner No.1. The reasons for excluding their statements from consideration appears to be wholly irrelevant and without any legal or factual basis. The District Judge has not reversed the findings of the learned trial Court to the effect that respondent No.1 has remarried without the permission of his first wife. This ground alone was sufficient to entitle the wife to live apart from respondent No.1. As already mentioned, there is sufficient evidence to prove that the treatment meted out to the petitioner at the hands of respondent No.1 was cruel.

7. As regards the capacity of the respondent to pay maintenance suffice it to say he has admitted that he was employed as driver and was, according to his own case earning Rs.500/600 per month. Even if this statement is accepted as correct, I feel no justification for refusing the maintenance at petty rate of Rs.75 per month each allowed by the Judge Family Court to the petitioners. The conduct of respondent No.1, in not providing any maintenance to his minor daughter and wife is far from appreciable. This being the position this constitutional petition is accepted, the judgment and decree of District Judge Khushab is declared to be without lawful authority and that of the learned Judge Family Court Joharabad is restored. The petitioners shall also get their costs throughout. H.B.T./N‑227/L Petition accepted,