2017 PLP 260 (YLRN)

SHEZADA MAZHAR, J.

Petitioner assails legality of impugned appellate order dated 5.6.2008 whereby the learned appellate court by accepting the appeal preferred by plaintiff wife against the judgment and decree of the Family Court dated 24.3.2008, decreed her suit holding her entitled to recover maintenance allowance for herself as well as minor.

2. In her suit plaintiff wife and the minor daughter had claimed maintenance allowance from the petitioner at the rate of Rs.1500/- per month per head from January 2002. Petitioner entered appearance before the Family Court, contested suit and strongly refuted the assertions of the plaintiffs in his written statement. He maintained that he had embraced Islam whereafter plaintiff abandoned his house of her own free will, while leaving petitioner's house had also taken an amount of Rs.120000/- from him for purchasing saving certificate for the minor. Trial court framed issues and recorded evidence of the parties thereon and eventually dismissed suit to the extent of plaintiff wife. However, it was decreed as regards minor in the manner that she was found entitled to past maintenance from February 2002 @ Rs.1000/- per month with 10% prospective annual increase. On appeal the learned appellate court set aside impugned judgment of the Family Court and decreed the suit in the manner that plaintiff wife was entitled for the recovery of maintenance allowance @ Rs.1500/- per month from February 2002 to September 2006 with 10% annual increase. Likewise suit was also decreed in favour of minor at the same rate and annual increase from February 2002 till her marriage.

3. Learned counsel for the petitioner contends that impugned appellate judgment is in conflict with the admitted facts and overwhelming evidence on record. Adds that appellate court based its findings on erroneous assumption and extraneous considerations and erred in law while holding plaintiff wife entitled to recover maintenance allowance. Also adds that learned appellate court did not apply its judicial mind to the fact that plaintiff wife had abandoned petitioner's house of her own free accord and thus she failed to perform her matrimonial obligations, hence, was wrongly adjudged entitled for maintenance allowance and that the factum of legitimate financial sources of the petitioner has not been ascertained with exactitude.

4. Learned counsel for the respondent strenuously controverts the assertions of the petitioner on the ground that impugned appellate judgment does not disclose any illegality, ambiguity, and non-appraisal of evidence on record, and that it did not suffer from any jurisdictional or legal infirmity, hence, calls for no interference by this Court.

5. Heard. Record perused. To discharge the onus of issue # 2, petitioner had relied upon decree of the Family Court in the suit for jactitation of his marriage, wherein, plaintiff wife had categorically conceded petitioner's assertion and had deposed that she did not have any objection, if petitioner's suit for jactitation of marriage was decreed. There is no doubt or dispute that plaintiff wife had herself admitted culmination of her marital relationship with effect from the date when the petitioner embraced Islam in terms of Ex.D1 which indicates that petitioner had embraced Islam on 28.2.2002. Therefore, plaintiff wife stood precluded from claiming any maintenance allowance from the petitioner on account to termination of her matrimonial bond with the petitioner from 28.2.2002. Moreover, a specific suggestion was put by the petitioner to plaintiff wife that she had left petitioner's house of her own when he changed his faith from Christianity to Islam, and the marriage inter se the petitioner and plaintiff wife automatically stood dissolved. It is her own case that from the said date plaintiffs are living apart from the petitioner with effect from 28.8.2002. And from the said date petitioner withheld maintenance allowance for both the plaintiffs, whereas, petitioner did not utter even single word in rebuttal, therefore, for all intents and purposes, the pertinent issue qua the past maintenance allowance in favour of minor stands established on record. In this view of the matter, suit for maintenance was decreed and rightly so by the trial court, and for valid reasons maintenance was correctly and justifiably declined. Therefore, I hold that findings of the Family Court on all the crucial issues are in accordance with law and evidence on record. While holding so, petitioner has made out a case for interference with impugned appellate judgment which apparently is not based on correct evaluation and fair appraisal of evidence and also runs counter to admitted facts on record as well as law on the subject. The learned appellate court did not take into consideration the fact that since plaintiff wife was living apart from the petitioner ever since the date of his conversion to Islam. How could she based her claim for period she did not perform her matrimonial obligations and the marriage between the spouses by operation of law ipso facto was dissolved with effect from 28.2.2002 in terms of Ex. Dl.

6. For what has been discussed above, writ petition is disposed of in the manner that judgment of the appellate court is set aside and modified to the extent of plaintiff wife and shall hold the field as regards maintenance awarded to the minor in consonance with the decree of the Family Court.

7. Disposed of in terms indicated ibid. ZC/M-10/L Order accordingly.