2006 PLP 40 (MLD)

IJAZ AHMAD CHAUDHRY, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have challenged the judgment and decree dated 25-9-2004 passed by the learned Family Judge, Dunyapur whereby while decreeing their suit they were only awarded maintenance at the rate of Rs.500 each per month since January, 2004 and judgment and "decree dated 11-12-2004 passed by the learned District Judge, Lodhran through which appeal filed by the petitioners for enhancement of maintenance allowance has been dismissed while appeal filed by respondent No.3 has been partly accepted with the direction that respondent No.1 is not entitled to any maintenance allowance.

2. Briefly the facts are that on 8-3-2004 the petitioners filed a suit for maintenance allowance alleging that Rehmat Bibi petitioner No.1 was married with respondent No.3 in the year 1985 and two minor sons, namely, Tasawar Mahmood and Ansar Mahmood (petitioners Nos.2 and 3) were born out of their wedlock. According to the averments of the plaint the behaviour of respondent No.3 with the petitioner was not cordial who kicked her out of the house along with the children in the year 1991 and since then they are living with her parents, but respondent No.3 has never, paid any maintenance allowance to them, whose monthly income was alleged to be 10/11 thousand. They claimed maintenance at the rate of Rs.2,000 each per month.

3. On the other hand respondent No.3 resisted the suit by filing written statement and alleged that petitioner No.1 had left his house along with the children only 3/4 months earlier of her own. According to him he will maintain them, if they opt to reside with him. Two other suits, one for recovery of dowry articles filed by petitioner No.1 and the other for restitution of conjugal rights instituted by respondent No.3 were also consolidated.

4. Out of divergent pleadings of the parties, certain issues were framed and both the parties led their respective evidence. Then after hearing the learned counsel for the parties the impugned judgments have been passed by both the Courts below.

5. The learned counsel for the petitioners contends that petitioners Nos.2 and 3 are sons of respondent No.3, who are now aged about 14/15 years and studying in school and the maintenance allowance awarded to them by both the Courts below at the rate of Rs.500 each per month is very meagre which is not sufficient to meet their needs in these days of hike price. It is further contended that marriage between petitioner No.1 and respondent No.3 still exists and respondent No.3 has not been able to prove that she was living separately for her own fault, as such she is also entitled to be maintained by respondent No.3 being husband, who is also looking after his children.

6. On the other hand learned counsel for respondent No.3 has opposed this writ petition and contended that respondent No.3 is a low paid employee of Army drawing pay at the rate of Rs.4130 per month and he cannot afford payment of maintenance allowance at high rates whereas petitioner No.1 has rightly been held disentitled to receive maintenance allowance by the learned District Judge as she is living separately of her own without any just cause and reasons in spite of that suit filed by him for restitution of conjugal rights has been decreed.

7. I have heard the learned counsel for the parties and perused the documents attached with this petition including the impugned judgments and the evidence led by both the parties. Admittedly, petitioners Nos.2 and 3 are real sons of respondent No.3, who are aged about 14/15 years and school going. Respondent No.3 being their father is duty bound to maintain them till they attain the age of majority wherever they are residing. Similarly petitioner No.1 is wife of respondent No.3 and their marriage still exists. According to respondent No.3 he is ready for reunion with her and his suit for restitution of conjugal rights has also been decreed against her. The wife is liable to be maintained by the husband unless it is proved that she is residing without any just cause and reason. In the present case the respondent is showing willingness to settle petitioner No.1 as his wife, but is not ready to give her any maintenance to show his bona fide who even otherwise is also upbringing his children. The evidence on the record does not show that the petitioner No.1 is residing separately from respondent No.3 of her own and respondent No.3 has no contribution therefor. As such the findings of the learned District Judge for not awarding maintenance to petitioner No.1 cannot be maintained.

8. Now the only question left for determination is quantum of maintenance to which the petitioners are entitled. The petitioners in their plaint claimed that monthly income of respondent No.3 was about 10/11 thousand while the latter in the written statement did not utter a single word about his exact income and only narrated that para No.6 of the plaint was not admitted. He has only brought on record his Salary Certificate dated 12-6-2004(Exh.D-1) issued by the Unit Accountant to show that he was drawing gross pay @ Rs.4130 per month, but no official was produced to testify the same. Moreover, the perusal of the certificate does not show that the said pay was inclusive of all allowances or not. Keeping in view the ages of petitioners Nos.2 and 3, who are also school going, I am of the view that amount of Rs.500 per month is not sufficient to cope with their needs in these days of hike price. As such keeping in view the income of respondent No.3 they are held entitled to receive future maintenance allowance at the rate of Rs.1,000 each per month from today and at the rate of Rs.500 each per month since from January 2004 as directed by both the learned Courts below. However, petitioner No.1 will be entitled to receive maintenance at the rate of Rs.500 as directed by the learned trial Court.

9. In the above terms, the impugned judgments and decrees passed by the learned Courts below are modified and this writ petition stands accepted. H.B.T./R-160/L?????????????????????????????????????????????????????????????????????????????????? Petition accepted.