2003 PLP 1450 (CLC)

IJAZ-UL-HASSAN, J.

Mst. Shahnaz Begum, respondent No. 1 herein, instituted suits against her husband Abdul Faheem, petitioner Herein, for dissolution of marriage, recovery of maintenance and return dowry articles. The learned Judge, Family Court, Kohat, vide his consolidated judgment and decree, dated 25-9-2001 partially decreed the suit regarding dissolution of marriage on the ground of Khula'. The claim for maintenance and dowry articles was declined on the ground that the wife left the house of the husband of her own accord without any fault on the husband's part and thus she was not entitled for maintenance. Feeling aggrieved, Mst. Shahnaz Begum filed an appeal which was partially accepted vide judgment, dated 23-12-2002 of the Additional District and Sessions Judge, Kohat. The impugned judgment and decree of the leaned trial Judge was modified and Mst. Shahnaz Begum was held entitled to maintenance allowance at the rate of Rs.500 per month from 7-2-1998, till the expiry of "Iddat" period i.e. 25-12-2001.

2. Abdul Faheem, petitioner, feeling dissatisfied, has filed instant writ petition tinder Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with the prayer that the impugned order dated 23-12-2002 relating to the maintenance allowance be declared as unlawful, without jurisdiction and lawful authority.

3. Arguing on behalf of the petitioner, Mr. Muhammad Amin Khattak, Advocate strenuously contended that the material available on record has not been properly assessed and evaluated by the learned Appellate Court and it has been erroneously held that Mst. Shahnaz Begum respondent No. 1 is entitled for grant of maintenance at the rate of Rs.500 per month. The learned counsel contended that in view of the adament attitude of the respondent she was not entitled for, maintenance allowance. Concluding the arguments, the learned counsel submitted that the evidence in this case has not been properly scrutinised by the learned Appellate Court and the conclusions drawn are erroneous and cannot be allowed to remain intact.

4. The object of taking away right of appeal under family matters is meaningful. If the Constitutional jurisdiction takes place of appeal, then the intent and purpose of Legislature would be frustrated. A wife is entitled to claim maintenance for herself if she is forced to live apart from the husband on account of the acts of cruelty attributed to the husband. The maintenance is neither a nature of gift or a benefit but is an undeniable legal obligation of the husband to maintain his wife when she is not staying away from him without just cause. So far as the question regarding appreciation of evidence is concerned, it needs no reiteration that appraisal of evidence is the function of the Family Court which is invested to it with exclusive jurisdiction. Finding of fact recorded by it cannot be interfered with in writ jurisdiction where it is not shown to be based on misreading or non-reading of material evidence and reasons have been given in support of the conclusion arrived at. An order passed cannot be interfered with in writ jurisdiction unless the same is mala fide, arbitrary, perverse or the Court has acted in excess of its jurisdiction. The writ petition is not maintainable. The same is hereby dismissed in limine. H.B.T./825/P Petition dismissed.