2004 PLP 1325 (MLD)

TALAAT QAYUM QURESHI, J.‑‑‑Through writ petition in hand, the petitioner has questioned the judgments/decrees dated 24‑5‑2003 and 27‑10‑2003 passed by respondents Nos.3 and 4 respectively being illegal, unlawful, without lawful authority and without jurisdiction.

2. Mr. Fazal Karim, Advocate the learned counsel representing the petitioner argued that respondent No. 1 had filed suit for recovery of dower, dowry, maintenance for herself and for respondent No.2 which was contested by the petitioner'. A suit for grant of decree for restitution of conjugal rights against respondent No. 1 was also filed by the petitioner. The learned trial Court after framing issues, recording pro and contra evidence of the partied dissolved the marriage of the petitioner with respondent No. 1 on the basis of Khula' and, respondent No. 1 was held entitled to maintenance at the rate of Rs.2,000 per month for 'Idaat' period and respondent No.2 who is daughter of the petitioner was also granted decree for recovery of maintenance at the rate of Rs.2,000 per month with effect from August, 2000 till passage of the decree with increase of 20% per annum till she was taken in the custody of the petitioner or her marriage vide judgment and decree dated 24‑5‑2003. The appeal filed by the petitioner was also dismissed vide judgment and decree dated 27‑10‑2003. The judgments and decrees passed by the Courts below were not based on proper appreciation off evidence, hence need interference.

3. It was also argued that the learned trial Court had fixed maintenance for respondent No.2 at the rate of Rs.2,000 per month with 20% increase per annum. The amount of maintenance was not commensurating with the income of the petitioner, therefore, the same was excessive and needed reduction. It was also argued that according to the dower deed placed on record as Exh. D. W .2/ 1, 32 Tolas gold ornaments were handed over to respondent No. 1 at the time of Nikah and 18 Tolas were to be paid later on. The execution of Nikahnama/dower deed Exh.D.W.2/1 was admitted by the respondent No.1, therefore, while dissolving the marriage on the basis of 'Khula' the respondent No.1 should have been directed to return gold ornaments received by her but the same was not done, hence the Courts below have committed illegality. Reliance in this regard was placed on 2000 YLR 956.

4. We have heard the learned counsel for the parties and perused the available record.

5. The arguments of the learned counsel for the petitioner that the learned trial Court has fixed excessive amount of maintenance has no force. It is by now settled law that the Court has to determine the amount of maintenance to be paid by father to his children while having regard to the social standing of the parties and the extent of father's means. Grant of maintenance to the children is not exgratia grant, a father is bound to maintain his children. So far as the quantum of maintenance is concerned, the same pertains to the realm of facts, which can be properly appreciated by the Courts below on analaysing the evidence produced by the parties. In the case in hand it was admitted at the bar that the petitioner was a practising lawyer having more than 7 years standing. The petitioner in his statement recorded by the learned trial Court admitted that he was appearing in one or two cases daily in Courts. He further stated that he could maintain his family members properly and he has asked respondent No.1 to quit/leave her job. The father being practising lawyer enjoys good social status in the society and the mother being a lady Doctor also maintain good social standard and status, the children are, therefore, entitled to be maintained in accordance with the social set‑up and standard of living of the family. When we kept these considerations in view, we are of opinion that the amount of maintenance fixed by the Courts below was commensurating the status/standing of the petitioner and was not excessive,.

6. The argument of the learned counsel for the petitioner that on passage of decree for dissolution on the. basis of 'Khula' the petitioner was entitled to get 32 Toals gold ornaments back‑which had been given to her at the time of Nikah also has no force. In fact the handing over of the ornaments was to be proved by the petitioner through convincing evidence, which he failed to prove and when the gold ornaments were not handed over to respondent No. 1, the question of return of the same would, therefore, not arise.

7. This Court in exercise of its Constitutional jurisdiction cannot interfere with the findings of fact, even if with appraisal of evidence it was possible to reach to a different conclusion, unless it was shown that such findings by the lower Court suffered from misreading/non‑reading which had affected the findings on merit. In Export Promotion Bureau and others v. Qaiser Shafiullah (1994 SCMR 859) it was held:‑‑ "Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal. In a Constitutional petition the High Court cannot interfere with a finding of fact merely on the ground that the reasons which found favour with the authority whose order is under scrutiny were not such which would have been accepted by the High Court. The Constitutional jurisdiction can be invoked to rectify jurisdiction defects. It is to be pressed into, service against an order which is without jurisdiction or tainted with malice or is violative of a provision of the Constitution/Law and not to correct a finding of fact. However, even in Constitutional jurisdiction the High Court may interfere with a finding of fact, if it is founded on no evidence or is contrary to the evidence." Similarly in Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh (1998 SCMR 769) it was held:‑‑ "According to established law, High Court, cannot interfere in the findings of fact `which may not be even concurrent even if on the appraisal of evidence it was possible to reach to a different conclusion unless it was shown that such a finding by the lower Court suffered from misreading or non‑reading of evidence which had affected the findings on merits." The impugned judgments and decrees are, neither based on misreading/non‑reading of evidence nor the same have been passed in violation of law, we therefore, do not feel appropriate to interfere with the same. Resultantly, the writ petition in hand is dismissed in limine. H.B.T./109/P Petition dismissed.