2022 PLP 1750 (MLD)

MALIK HAQ NAWAZ, CJ.

The instant Civil Revision Petition is directed by the Petitioners/ Plaintiffs against the judgment/ decree recorded by the learned District Judge Gilgit, vide judgment and decree dated 02-04-2019, whereby the learned District Judge Gilgit was pleased to set aside the judgment/ decree passed by the learned trial Court.

2. Short facts of the case giving rise to the filing of instant Revision Petition are that present petitioner/plaintiff No.1 instituted a suit against the respondent/ Defendant for specific performance of agreement deed dated 22-01-2015. She further maintained that on the basis of said agreement deed plaintiff/ petitioner is entitled to receive a sum of Rs.5,00,000/ - from the defendant/ respondent.

3. The suit was hotly contested by the respondent/ defendant by way of filing his written statement and denied the claim of the petitioners/ plaintiffs on many legal and factual objections which gave rise to the framing of as many as 9 issues including issue of relief. The learned trial Court after recoding evidence pro and contra and after hearing the parties in the light of material available on record partially decreed the suit of the Plaintiffs/ petitioners against the respondent/ defendant. Being dis-content with the impugned judgment/ decree dated 22-05-2017 passed by the learned trial Court respondent/ defendant preferred Civil first Appeal before the learned District Judge Gilgit. The learned District Judge Gilgit after hearing the parties set aside the judgment/ decree passed by the learned trial Court vide judgment/ decree dated 02-04-2019, hence the petitioners/plaintiffs filed the instant Civil Revision before this Court with a prayer that:- "It is therefore, very humbly prayed that by accepting this civil revision setting aside the impugned judgment / decree dated 02-4-2019 passed by the learned District and Sessions Judge Gilgit in CFA No. 32/2017 by maintaining the judgment dated 22-05-2015 passed by the learned Civil Court Gilgit in Civil Suit No. 152/15,24/2016 to meet the ends of justice".

4. The learned counsel for the Petitioners/ plaintiffs argued that the learned District Judge Gilgit has not followed the provisions of relevant law applicable to the matter in hand, hence, the judgment/ decree passed by the learned appellate Court is not maintainable. He further submitted that Judgment/ decree of the learned District Judge Gilgit is against the law and facts, hence, the same is not maintainable and is liable to be set aside. He further submitted that the learned District Judge has passed the impugned judgment/ decree in hasty manner, therefore, the judgment/ decree is liable to be set aside. He argued that the learned District Judge Gilgit did not apply judicious mind and has failed to appreciate the relevant law, hence, the impugned judgment/ decree is not maintainable. Lastly the learned counsel for the petitioners/ plaintiffs contended that the judgment/ decree of the learned first appellate Court is the result of misreading and non-reading of evidence, therefore, the judgment/ decree of the learned first appellate court is liable to be set aside.

5. On the other hand learned counsel for the defendant/ respondent has strongly defended the judgment/ decree of the learned first appellate Court by asserting that the judgment/ decree passed by the learned first appellate Court is the result of correct appreciation of evidence and facts on record. He further submitted that petitioner No.1 is wedded wife of respondent and remaining petitioners are children of the defendant and they have on their own freewill left the house of the defendant, therefore, they are not entitled for any maintenance, therefore, the learned first appellate Court has rightly set aside the judgment/ decree of the learned trial Court. He argued that the learned District Judge has rightly applied the relevant law and the judgment/decree of the learned appellate Court is the result of correct appreciation of material available on file. Concluding his arguments the learned counsel for the respondent/plaintiff submitted that the instant revision petition is not maintainable, therefore, liable to be dismissed to meet the ends of justice.

6. I have heard the arguments advanced by the learned counsel for the Parties and have also perused the record available on file.

7. Admittedly, respondent namely Hamid Hussain was married to Mst. Saima Batool Zehra on 06-04-2007 and out of the said wedlock two children namely Hashim Hussain (son) and Miss Iram Zehra (daughter) were born. Their relations thereafter became strained and the petitioner has left the house of respondent No.1 and remained in her parents house. During that period due to intervention of the notables of the area a compromise agreement between the parties has been executed and some conditions have been reflected in the said compromise deed between the parties. Plaintiffs / petitioners have preferred the instant suit on the basis of said compromise deed by asserting that the respondent has failed to comply the conditions of the compromise deed and the learned trial Court has passed a partial decree in favour of the plaintiffs/petitioners, which was assailed by the present respondent before the learned District Judge Gilgit. The learned District Judge Gilgit accepted the appeal of the respondent and set aside the judgment/ decree of the learned trial Court. Perusal of document/ compromise deed annexed with the instant revision petition it reveals that the document is an unattested document and has not been exhibited. Further that the compromise effected between the parties without intervention of the Court and the same has not been made rule of the Court, therefore, the document is not admissible in evidence under law.

8. It is art admitted fact that a husband is bound to maintain his wife and children but right of maintenance of the wife is subject to the following conditions:-- (i) She must be faithful to the husband and obey his reasonable order, if she refuses to him, the husband is not bound to maintain her. (ii) Wife is not entitled to maintenance when she lives apart from the husband except for non-payment of her dower in which case her right of maintenance continues even though she is living apart from him.

9. It was not the case of petitioner No.1 that she was living apart due to non-payment of her dower amount. The plaintiff has left the house of her husband due to some domestic problems and refused to come back to her husband's home. It is also admitted that there is no separation between the couple. It is evident from the record that during cross-examination the attorney of the plaintiff has admitted that plaintiff is not willing to go with the defendant. A wife cannot claim her maintenance without performing conjugal rights. Hence, petitioner No.1 is not entitled for maintenance, and the judgment/ decree passed by the learned first appellate Court to the extent of petitioner/plaintiff No.1 is liable to be maintained.

10. As far as, the case of petitioners/ plaintiffs Nos. 2 and 3 is concerned. It is admitted fact that petitioner/ plaintiff No.2 is the son of the respondent/ defendant while petitioner/ plaintiff No.3 is the daughter of the respondent, therefore, respondent being father of the petitioners/plaintiffs Nos.2 and 3 is under law bound to maintain them till attaining the age of their majority. According to injunctions of Islam a father is duty bound to maintain, his son until he attains the age of puberty and maintain his daughter till her marriage. Mere the fact that the children are in custody of their mother is not a valid ground for father to withheld the maintenance of his children. So long as the children are with the mother and unless their custody is disturbed in result of any legal proceeding, liability of father to provide them adequate maintenance is absolute and is not dependent or affected by their residents. Respondent had failed to provide maintenance to their children, therefore, the suit is liable to be decreed to the extent of petitioners/ plaintiffs Nos. 2 and 3.

11. The nutshell of the above discussion is that, the instant revision petition is partially allowed by setting aside the judgments/ decrees passed by the learned lower Courts below and passed following orders:- (i) Suit of the plaintiffs/ petitioners Nos.2 and 3 is decreed to the extent of their maintenance and fixed a sum of Rs. 8,000/- per month with effect from the date of filing of the instant suit i.e. 21-10-2015. (ii) Suit of the plaintiffs/ petitioners to the extent of remaining claim is hereby dismissed. File after due completion be consigned to record. SA/123/GB Order accordingly.