2002 PLP 1748 (CLC)

3. Both the suits were contested by the writ petitioner. Besides controverting the suits on merits it was alleged by him that in his absence, respondent No. 1, had herself left his house alongwith the minor. It was alleged that his monthly income was Rs.4,500.

4. It is necessary to mention that besides the said suits for maintenance, respondent No. 1, had also instituted another suit against the writ petitioner for recovery of articles of her dowry and the writ petitioner had also filed a suit for restitution of conjugal rights against .her. All the four suits were consolidated and vide consolidated judgment, dated 31‑5‑2000, the said suits were disposed of by the Judge, Family Court.

5. Aggrieved thereby Muhammad Javed Iqbal, filed separate appeals before the learned District Judge, Khanewal, which were dismissed.

6. In this Constitutional petition, Muhammad Javed Iqbal has assailed the following judgment/order:‑‑ (i) Consolidated judgment, dated 31‑5‑2000 passed by Judge, Family Court in Suit No.22 (for maintenance) titled Mst. Tahira Naheed and Sabihi Hamza v. Muhammad Javed Iqbal whereby maintenance was granted to Sabihi Hamza at the rate of Rs.500 per month w.e.f. 17‑3‑1998. Order of learned District Judge, Khanewal passed in appeal against the said judgment is neither assailed nor produced by the writ petitioner. (ii) Consolidated judgment, dated 31‑5‑2000 passed by Family Court in Suit No.23 (for maintenance) titled Mst. Tahira Naheed and Abdul Waris v. Muhammad Javed Iqbal, whereby maintenance was granted to both the plaintiffs at the rate of Rs.500 each per month and in addition thereto plaintiff No. 1, was found entitled to recover from the defendant a sum of Rs.22,797.50 by way of expenses incurred by her on the delivery of Abdul Waris infant. (iii) Order, dated 14‑9‑2000 passed by the learned District Judge, Khanewal whereby writ petitioner's appeal against the aforesaid judgment and decree was dismissed.

7. The aforesaid judgment of the Family Court and order passed in appeal by the learned District Judge, Khanewal on 14‑9‑2000 are assailed in this Constitutional petition.

8. Mr. Muhammad Naveed Hashmi, Advocate appearing on behalf of the petitioner had urged as under:‑‑ "(i) Both the aforesaid orders of the Family Court and the learned District Judge, Khanewal were passed without lawful authority. (ii) The said orders are against law and facts. (iii) Evidence was not read and was misread by the Family Court. (iv) Receipts marked by the Family Court were not duly proved in accordance with the provisions of Qanun‑e‑Shahadat Order on account of which they should not have been considered in evidence. (v) The plaintiff Mst. Tahira Naheed did not appear in the witness -box so adverse presumption should have been drawn against her and that, (vi) The learned District Judge, Khanewal did not decide the appeal on merits; mere non‑compliance of order to deposit past maintenance and to furnish surety bond was no ground for dismissing the appeal rather, the condition imposed should have been for the purpose of suspending the operation of the impugned judgment passed by the Family Court."

9. The writ petition was strongly opposed by Mr. Islam Ali Qureshi, Advocate appearing on behalf of respondents Nos.1 to 3, who during his arguments fully supported the impugned judgment and order respectively passed by the Family Judge and the learned District Judge, Khanewal.

10. Arguments were heard, certified copies of relevant record annexed with the writ petition have also been perused.

11. Adverting to the first submission, Judge, Family Court has the jurisdiction to entertain and adjudicate upon the matters specified in Schedule of West Pakistan Family Courts Act, 1964. Maintenance is specified in the said Schedule. Under section 14 of the said Act, decision given or decree passed by Family Court is appealable to the District Judge where the Family Court is not presided over by the District Judge, or Additional District Judge. In the present case the impugned judgment/decree was passed by Senior Civil Judge and the appeal was heard by the learned District Judge. Both the Courts below, therefore, had lawful authority to pass the judgment and order respectively.

12. Reverting to the above second and 3rd submission of learned counsel for the petitioner, it may be observed that the learned counsel for the petitioner had failed to point out which portion of evidence was not read and what piece of evidence was misread by the Family Court. Assessment of evidence or to determine the amount of maintenance is the function of the Family Court which was vested with exclusive jurisdiction to decide such matters. Neither there appear to be any misreading of evidence nor any material piece of evidence appears to have been overlooked by the Family Court while determining the amount of maintenance awarded and assessing the expenses incurred by Mst. Tahira Naheed on the delivery/birth of Abdul Waris infant.

13. Referring to the fourth submission of learned counsel for the petitioner, it may be observed that under section 17 of the West Pakistan Family Courts Act, 1964, provisions of Qanun‑e-Shahadat Order and C.P.C. do not apply .to the proceedings before the Family Court.

14. Reverting to the fifth submission of learned counsel for the petitioner, it may be observed that under section 18 of the West Pakistan Family Courts Act, 1964 plaintiff Mst. Tahira Naheed could be represented by her authorized agent. In the instant case she was represented by her father who was her authorized agent and had appeared in the Family Court as her special attorney; tie was fully conversant with the relevant facts of the case. Since appearance of authorised agent was legally permissible, the Family Court was not required to draw adverse presumption/inference due to non‑appearance of plaintiff Mst. Tahira Naheed in the witness‑box.

15. Reverting to the last submission made by learned counsel for the petitioner, it may be observed that vide judgment of Family Court in Suit No.22, maintenance at the rate of Rs.500 per month was granted to minor Sabihi Hamza. Although appeal against that judgment was said to have been filed but order passed by the learned District Judge, Khanewal in that appeal is neither assailed in this Constitutional petition nor it was produced. Anyhow, under clause (c) of section 14(2) of the West Pakistan Family Courts Act, 1964 appeal against judgment/decree whereby maintenance was granted to the extent of Rs.500 per month, was not competent.

16. In Suit No.23, maintenance was claimed by Mst. Tahira Naheed for herself and for her newly‑born son Abdul Waris at the rate of Rs.2,500 each per month and in addition thereto delivery expenses to the tune of Rs.32,228 were also claimed. Family Court vide impugned judgment partly granted maintenance allowance to the said plaintiffs to the extent of Rs.500 each per month and delivery expenses were assessed as Rs.22,797.50.

17. Against the said judgment, writ petitioner filed appeal before the learned District Judge, Khanewal who vide order, dated 14‑9‑2000 dismissed the same on the short ground that the appellant had defaulted in complying with the condition of furnishing surety bond regarding the delivery expenses and had failed to deposit the arrears of maintenance levied in the impugned judgment, which was condition precedent for admission of the appeal to regular hearing.

18. Since the aforesaid condition was as a condition precedent for the admission of appeal default thereof led to the legal consequence which was dismissal of the appeal.

19. In 1995 MLD 1057, it is held that all proceedings which were not prohibited by any statute must be taken to be permissible and the Court should not proceed on the assumption that there should be a specific provision for exercise of any power. In the said case interim order of the trial Court was affirmed whereby it had ordered for grant of maintenance allowance during pendency of suit despite fact that no specific provision existed in the West Pakistan Family Courts Act, 1964, for grant of any maintenance during pendency of suit. Condition imposed by the learned District Judge, Khanewal for admitting the appeal cannot be deemed as illegal.

20. For the reasons stated above, the writ petition being devoid of any merit stands dismissed. Q. M. H. /M. A. K./M‑1265/L Petition dismissed.