2015 PLP 543 (CLC)

SHOAIB SAEED, J.

This writ petition is directed against the impugned judgment and decree dated 26-11-2013 passed by the Additional District Judge, Talagang whereunder maintenance was fixed at the rate of Rs.4000 per child per month with 10% annual increase.

2. Brief facts of the case are that respondents filed a suit for recovery of maintenance allowance which was decreed @ Rs.1500 per month child by Judge Family Court vide judgment and decree dated 5-4-2010. The said judgment and decree was assailed in appeal which was dismissed by the Additional District Judge, Talagang vide judgment and decree dated 15-6-2010. Later respondents filed a fresh petition for enhancement of maintenance allowance from Rs.1500 to Rs.5000 per month per child with 10% annual increase, before the Judge Family Court Talagang on 25-9-2012 which was duly replied by the petitioner. Issues were framed and evidence led by both the parties. The trial court feeling dissatisfied with the evidence led by respondent and the petition having been filed within two years of the decision of the earlier maintenance petition and petitioner having contracted second marriage maintaining his second wife as well as children did not find sufficient reasons for granting relief, dismissed the suit vide impugned judgment and decree dated 10-4-2003. Feeling aggrieved against the said judgment and decree respondents filed an appeal which was accepted partially by enhancing monthly maintenance of each of the respondents to Rs.4000 together with 10% annual increase from the date of filing of the said petition.

3. Learned counsel for the petitioner argued that there was no justification in enhancing maintenance to Rs.4000 per child per month as nothing new was brought in evidence wherefrom it could be inferred that respondents' (minors) expenses had undergone an upsurge, the amount being paid as maintenance is deficient and income of the petitioner had shown any significant increase. Petitioner went on U.N. mission to Ivory Coast for a very short period and had rejoined his parent Army Unit in Pakistan. Being a Lance Nike in the Army his income was Rs.10,920 according to his salary certificate dated 20-10-2012. Petitioner has contracted second marriage; has a daughter besides his parents and sister are also dependent on his income. Moreover under the enactment there is no provision of annual increase in maintenance allowance, 10% awarded was illegal and beyond jurisdiction of the appellate Court.

4. Conversely, it was argued by learned counsel for respondents that the petitioner was sent to Ivory Coast on U.N. mission and was drawing his salary there in dollars according to U.N. standards. Petitioner stayed there for almost two years and saved huge money. Though he has come back but his salary in the army has doubled. The enhancement is sought as the respondents are presently studying in senior school during the last three years their expenses have increased manifold. Keeping in view the present spiraling conditions and school fees, the enhancement in monthly maintenance by appellate court was commensurate with overall price hike, therefore, justifiable under the circumstances. Courts have the jurisdiction to allow annual increase.

5. Arguments heard and record perused.

6. Admittedly, petitioner proceeded to Ivory Coast where he was drawing salary according to the U.N. standard. During cross-examination it was admitted by the petitioner that his monthly salary was Rs.15000 in March, 2010, besides his basic salary petitioner was also getting allowances admissible to his rank over all the salary structure has almost doubled in the last few years. There is no denying the fact that earlier order fixing maintenance @ Rs.1500 per child per month was passed in April, 2010 and after a lapse of almost four years, prices of basic essentials of life as well as school fees for senior classes have undergone change. The requirements/expenses of the respondents are to be met solely by the petitioner being their father. The trial court under the prevailing circumstances and testimony of witnesses in this regard has rightly enhanced maintenance to Rs.4000 per month keeping in view the financial condition and status of the petitioner. However, imposition of annual increase in maintenance allowance can be looked into provided evidence is led to the effect in the form of financial statistics/statistical data. The 10% annual increase in the maintenance allowance has been awarded without any factual basis, criteria or justifiable reasons, the order to this extent is arbitrary, illegal and whimsical. The judgment and decree dated 26-11-2013 passed by the appellate court to the extent of 10% increase is set aside, decree is accordingly modified. However, the enhancement of monthly maintenance allowance to Rs.4000 per child per month is just and proper under the circumstances which is upheld. Resultantly writ petition is partially accepted. AG/K-31/L Order accordingly.