2000 PLP 1449 (YLR)

S.5

Constitution of Pakistan (1973), Art. 199

Constitutional petition-- Maintenance of minor child

Quantum of maintenance allowance

Father raised objection to the amount of Rs. 1,000 per month fixed by Family Court on the ground that the same was beyond his means

High Court directed the father to deposit a sum of Rs.15, 000 within ten days and operation of decree was suspended subject to deposit of such amount

Father failed to deposit the suit amount

Effect

Failure to deposit such amount established that the father did not approach the High Court with clean hands-- He who seeks equity must come with clean hands

Where the father did not approach the Court with clean hands, High Court declined to exercise discretion in his favour. Nawabzada Ronaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462 and G.M's. case 1990 CLC 1783 ref. Abdul Hameed Butt for Petitioner. Azam Sher Khan Jatoi for Respondents. The brief facts out of which the present writ petition arises are that respondent No.1 filed a suit for maintenance for herself and for respondent No.2 before the Judge Family Court on 5-6-1998. The petitioner filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties the Trial Court framed the following issues: -- (1) Whether the plaintiffs have not come to the Court with clean hand in view of the preliminary objection No. 1 of the written statement? O.P.D. (2) Whether the plaintiffs are estopped by their words and conduct from filing the suit against the defendant? O.P.D. (3) Whether the suit is false, frivolous and mala fide and as such liable to be dismissed with costs? O.P.D: (4) Whether the plaintiffs .are entitled to recover maintenance allowance from the defendant? If so, to what extent per month and for what period? O.P.P. (5) Relief The Trial Court decreed the suit vide judgment and decree, dated 12-6-1999. The petitioner being aggrieved filed appeal before the District Judge, Faisalabad who accepted the appeal to the extent of respondent No. l and dismissed the appeal to the extent of respondent No.2.

2. The learned counsel of the petitioner stated that judgment of the First Appellant Court is result of misreading and non-reading of the record. The petitioner admitted in his evidence before the Judge Family Court that he owns 12-1/2 acres of land whereas in fact the petitioner is owner of land measuring 40 Kanals as is evident from the Fard Jamabandi for the year 1996-97 but the First Appellate Court did not advert to this aspect of the case. He further stated that sources of the income of the petitioner are very meager. Maintenance awarded to respondent No.2 minor of Rs. 1,000 by the Courts below is beyond the sources of the petitioner. He further stated that the age of respondent No.2 is three years, therefore, maintenance awarded by both the Courts below amounting to Rs. 1,000 is not proper. He further stated that maintenance of past, five months was also awarded by both the Courts below in favour of respondent No.2, which is not in accordance with law laid down by the superior. Courts in Syed Hamid Ali Shah's (1991 CLC 766).

3. The learned counsel of the respondents stated that both the Courts below have given concurrent finding of fact against the petitioner. He further stated that petitioner himself admitted in his statement that petitioner owned 12-1/2 acres of land and he obtained Rs. 7,000 income per acre from the said land. He further stated that judgment of the First Appellate Court is in accordance with law laid down by the superior Courts. He relied upon 1997 MLD 2655.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that both the Courts below have given concurrent finding of fact against the petitioner qua the maintenance awarded to respondent No.2 (minor) and this Court has no jurisdiction to disturb the finding of fact in Constitutional jurisdiction as the principle laid down by the Hon'ble Supreme Court in the following judgments:

(1) PLD 1981 SC 522, (2) PLD 1981 SC 246, (3) 1974 SCMR 530 and (4) PLD 1973 SC

24. It is also admitted fact that both the Courts below after proper appreciation of evidence have given finding of fact against the petitioner that petitioner's income is Rs. 7,000 per acre from the land owned measuring 2-1/2 acre by the petitioner, therefore. this Court has no jurisdiction to substitute its own decision in place of the decision of the tribunals below as the principle laid down by the Division Bench of this Court in Masaddaq's case PLD 1973 Lah.

600. Contention of the learned counsel of the petitioner that the petitioner owned only 40 Kanals of land as is evident from Fard Jamabandi for the year 1996-97 which is contrary to his own admission as the petitioner himself stated in his statement that he owned land measuring 12-1/2 acres. It is pertinent to mention here that the statement of the petitioner was recorded on 26-5-1999, therefore, Jamabandi in question has no relevancy as the possibility cannot be ruled out that the petitioner has purchased the land after 1996-97 otherwise he could not state in his own evidence that he owned land measuring 12-1/2 acres. Even otherwise it is settled proposition of law that nobody should be allowed to approbate and reprobate as the principle laid down by the Hon' ble Supreme Court in Ghulam Rasul's case PLD 1971 SC 376-. The petitioner is bound to honour his own statement, therefore, contention of the petitioner's counsel has no relevancy. It is pertinent to mention here that ordinary meaning of word Admission means an acknowledgement and an act of conceding according to Chambers 20th Century Dictionary I am fortified by S.A. Shah's case PLD 1988 Kar.

393. It is well-known principle of law that admission if clearly and unequivocally made, it would be the best evidence against party making same. I am fortified by Anwar Shah's case 1987 MLD 1376. It is also settled proposition of law that according to Injunctions of Islam it is the duty and obligations of the petitioner to maintain the minor. This is the basic distinguished factor between the Western Society and our Society. Western Society talks of human rights only whereas Islam insisted performance of first obligations and duties and then human rights. The petitioner cannot be avoided from his duties and obligations as mentioned above. According to the Injunctions of Islam it is the duties and obligations of the petitioner to maintain the minor after addition of Article 2A in the Constitution. Under Muhammadan Law a father ordinarily is bound to maintain the child, if it remains with his mother especially when the custody, in consideration of age under the personal law also remains with him. In such case neglect or refusal to maintain the child is to be attributed to the father and the father is required to explain away satisfactorily as to in what way he can avoid maintenance allowance to the child. It is the duty and obligation of the Courts to decide the controversy of the parties in family matters in accordance with Injunctions of Islam. Under Islamic Law, a father is obliged to maintain his son until he has attained the age of puberty. I am fortified by section 370 of the principle of Muhammadan Law by Mullah. Similarly section 352 of the aforesaid Book does not relieve father from the obligation to maintain the minor. It is admitted fact that petitioner and respondents are Muslims, therefore, it is the duty and obligation of the petitioner to maintain respondent No.2. The judgment relied by the petitioner is distinguished on facts and law as the Hon'ble Supreme Court has settled proposition of law otherwise in Ghulam Nabi's case PLD 1991 SC 543 and observed as follows:

"this Court while permitting the grant of past maintenance did not make any exception with regard to children as distinguished from the maintenance to a wife. Otherwise too it looks unfair that while the wife gets past maintenance the children should be deprived of this benefit." Since the law laid down by the Hon'ble Supreme Court is clear and unambiguous, the judgment of the Single Bench of this Court, relied upon by the learned counsel, stands overruled." Even otherwise the conduct of the petitioner is of such a nature that the operation of the decree was, suspended subject to the condition that the petitioner should deposit Rs.15,000 within ten days but the petitioner failed to deposit the amount in Court. This fact brings the conduct of the petitioner in area where the petitioner does not approach this Court with clean hands. It is settled proposition of law that he who seeks equity must come with clean hands. I am not inclined to exercise my discretion in favour of the petitioner as the law laid down by the Hon'ble Supreme Court in Nawabzada Ronaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462 and G.M's. case 1990 CLC 1783. In view of aforesaid discussion, there is no merits in this writ petition and the same is dismissed. Q.M.H./M.A.K./M-53/L Petition dismissed.