2007 PLP 201 (MLD)

MUHAMMAD MUZAMMAL KHAN, J.

Instant Constitutional petition prayed that judgments/orders, dated 7-4-2005 and 24-5-2005 passed by the learned Judge Family Court and learned Additional District Judge (respondents Nos. 1 and 2) may be declared A illegal, void and of no legal consequence, whereby petitioner was burdened with maintenance allowance of his son (respondent No.3) at the rate of Ks.10,000 per month and his appeal was dismissed respectively.

2. Succinctly, relevant facts are that petitioner entered into a tic of marriage with one Mst. Naz Paracha on 20-3-1999 according to Muslim rites through a registered Nikahnama. This wedlock gave birth to a child, who was named as Khizar Abbas on 8-7-2000. Relations between the spouses did not remain cordial and after separation, ended in divorce on 8-2-2002. Minor son of the petitioner namely, Khizar Abbas through his mother on 2-10-2004 filed a suit for recovery of maintenance allowance from July, 2002 at the rate of Rs.15,000 per month asserting that petitioner is a man of means as he is employed in Canada and owns one square of agricultural land and thus is in a position to pay the maintenance allowance prayed. Petitioner being defendant in the suit contested the same, by evasively denying the allegations of his son (respondent No.3) but admitting his employment in Canada in para?graph 6 of the written statement. Respondent No.2 initially directed the petitioner to pay interim maintenance allowance at the rate of Rs.5,000 per month and ultimately decreed the suit with the finding that petitioner has means to pay maintenance allowance at the rate of Rs.10,000 per month. Respondent No.3 was granted ex parte maintenance at the rate of Rs.10,000 per month since July, 2002 till attaining of his majority with an annual increase of 10% vide judgment/decree, dated 7-4-2005.

3. Petitioner aggrieved of the decision of the learned Judge Family Court filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed on 24-5-2005. Petitioner then filed instant constitutional petition with the prayer, noted above. Respondent No.3 in response to notice by this Court has appeared and is represented through counsel.

4. Learned counsel for the petitioner relying on para. 278 of the Mohammedan Law by D.F. Mullah, contended that both respondents Nos. 1 and 2 have no jurisdiction to grant the past maintenance but in spite of it maintenance was granted since July, 2002, whereas the suit was filed by respondent No. 3 on 2-10-2004. It was further submitted that petitioner has gone to Canada for advance studies of law and he is not working there, thus the maintenance allowance awarded being beyond his means is not sustainable. A reference to certificate of Mr. Zahid Hussain Bokhari, Advocate, was made to contend that petitioner is not employed in Canada. It was further submitted :''at petitioner out of his part-time job in Canada is maintaining his second wife, whereafter he is not left with sufficient funds to pay the decretal amount.

5. Learned counsel for respondent No.3 refuted the arguments of the petitioner and relying on concurrent judgments of respondents Nos. 1 and 2, urged that petitioner is working in. Canada besides which he has sufficient landed property to pay the maintenance allowance awarded by the two Courts below. It was further submitted that petitioner is in the habit of disobeying the orders of the Court as he initially did not make any payment of interim maintenance awarded by the learned Judge Family Court and thereafter alike order by the Appellate Court remained uncomplied. According to learned counsel, petitioner has not paid a single penny towards maintenance allowance to respondent No.3 and is deliberately delaying discharge of his legal/social obligations on the basis of fake pretexts.

6. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Petitioner is undeniably stationed in Canada where he is working for money as this fact was admitted by him in paragraph 6 of his written statement. He did not deny claim of respondent No.3 regarding his ownership of one square of land. Stance of the petitioner before this Court that he is doing part-time job in Canada though is contrary to his stand in the written statement and is also not proved on the file, yet he has not placed on file any proof of his income there. Claim of the petitioner that he has to maintain his second wife is proof of the fact that he has sufficient means to pay the maintenance allowance concurrently awarded by respondents Nos. 1 and

2. Leaving aside his -earnings in Canada, his one square of land in Pakistan is enough to feed his son (respondent No.3). Above all, the maintenance awarded in this age of dearness/inflation is not excessive/exorbitant because respondent No.3 is a school going child and his mother is meeting his expenses as detailed in the plaint, however, this is a legal social and Islamic liability of the petitioner. Para. 278 of the Mohammedan Law of D.F. Mullah deals with past maintenance of a wife and does not restrict power of respondents Nos. 1 and 2 to grant maintenance only from the date of institution of the suit. None of the provisions of statutory law could be referred in support of the assertion that past maintenance from July, 2002 could not have been awarded by the learned Judge Family Court while exercising powers under section 488, Cr. P. C.

7. For all the reasons noted above, no case for interference in constitutional jurisdiction of this Court was made out. Even otherwise, a lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, hence the same having no merit in it is dismissed, with no order as to costs. H.B.T./A-213/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.