1999 PLP 2975 (MLD)

Date of hearing: 8th June, 1998. This judgment will dispose of Writ Petition No 812 of 1997 and Writ Petition No. 813 of 1997 as common questions of law and fact are arising therein.

2. The facts necessary for disposal of this petition are that respondent No. 3 was married with the petitioner on 5-4-1995. Out of this wedlock, respondent No. 4 Misbah Kausar was borne on 11-I I-1995, respondents Nos .5 and 6 are claimed to be offspring of respondent No. 3 from her former husband Mushtaq Ahmad.

3. Respondent No. 3 filed a suit for recovery of maintenance for herself as well as for respondents Nos. 4 to 6 at the rate of Rs. 1,000 per month each. Petitioner also filed a suit for restitution of conjugal rights. Both the suits were contested.

4. After issues and evidence, the learned Judge Family Court decreed the suit for maintenance partially, thereby allowing maintenance at the rate of Rs. 300 per month. This is vide judgment dated 15-9-1996. The maintenance was allowed to respondent No. 4 (daughter of petitioner), however, no maintenance was allowed to the remaining respondents. Respondents Nos. 3 to 6 filed appeal which was accepted by the learned Additional District Judge vide judgment dated 18-2-1997 whereby the decree of Trial Court was modified and maintenance allowance at the rate of Rs. 1,000 per month was allowed to respondents Nos. 3 to 6 each. Writ Petition No. 812 of 1997 arises out of maintenance suit.

5. In the suit for restitution of conjugal rights, the learned Judge Family Court, accepted the plea of petitioner and decreed the suit on 15-9-1996 by rejecting the plea of maintenance raised by respondent No.

3. Respondent No. 3 filed an appeal against judgment of the learned Trial Court which was allowed by the learned Additional District Judge on 18-2-1997. Writ Petition No. 813 of 1997 arises out of suit for restitution of conjugal rights.

6. Learned counsel for the petitioner argued that his counsel was not heard and an affidavit to this effect has been filed by the said learned counsel. He submitted that the petitioner could not be made to pay maintenance for the children of respondent No. 3 from her former husband and therefore, grant of maintenance to respondents Nos. 5 and 6 was illegal and without jurisdiction. He added that the amount of maintenance was excessive and that respondent No. 3 was intentionally living away from the petitioner though the petitioner had already been ready and willing to perform his matrimonial obligations. Lastly, it was submitted that suit for restitution of conjugal rights could not be dismissed.

7. On the other hand, learned counsel for respondents argued that the petitioner had agreed in writing before the marriage to pay maintenance for the children of respondent No 3 from her ex-husband and was, thus, legally obliged to discharge his liability. Learned counsel submitted that the petitioner failed to provide a residential house in terms of agreement and, thus, was not entitled to restitution of conjugal rights. Learned counsel refuted the contention that the petitioner's counsel was not heard by the learned Additional District Judge and submitted that both the counsels were heard.

8. I have anxiously considered the points raised by the learned counsel for the parties and have scanned the copies of record of this case annexed with this petition.

9. As far as maintenance of the children of respondent No. 3 from her ex- husband is concerned, there is substance in the submissions made by the learned counsel for the petitioner that learned Judge Family Court could not allow the same as it did not form subject of family issue before him. The claim was made not on the plea that respondents Nos. 5 and 6 were children of the petitioner from the wedlock of respondent No. 3 but the claim was based on a contract allegedly executed before the marriage. To enforce her claim of maintenance qua respondents Nos. 5 and 6, respondent No. 3 was banking upon an independent contract which may be subject of civil suit but cannot be basis for granting maintenance in the suit filed by the wife against the husband under the provision of Punjab Family Court Act, 1964. In the proceedings under the Family Courts, the wife could claim maintenance for herself or for her children from the wedlock of the husband and not for the children which have been born from the wedlock of ex-husband. She filed a suit for maintenance against her ex-husband and obtained a decree against him. This is one of the considerations for which she could be refused relief in the present suit to the extent of respondents Nos. 5 and

6. Claim is based on the contract Exh. P.1 for enforcement of which respondent No. 3 may file a separate suit where rights of parties and civil liabilities would be decided on the basis of the contract. In this view of the matter, the order of the learned Additional District Judge, in allowing maintenance to respondents Nos. 5 and 6 being untenable cannot be approved.

10. As regard maintenance for respondents Nos. 3 and 4 the petitioner cannot deny his liability. Admittedly, respondent No. 3 is his wife and respondent No. 4 is his real daughter. A minor is entitled to maintenance from his/her father irrespective of the fact that he/she is living apart from father and living with mother. Father is responsible to pay maintenance to a child which liability cannot be avoided. Similarly, respondent No. 3 is also entitled to maintenance as the petitioner had failed to prove that she was living apart, without any reasonable cause. It was one of the allegations that despite having committed the petitioner had failed to provide an independent place of abode. She also made reference to the agreement in which petitioner had undertaken to provide a house for her residence. Be that as it may, the petitioner, without providing any place of abode to respondent No. 3 cannot maintain that she was living illegally away from her husband and was not entitled to maintenance. The grant of maintenance to respondents Nos. 3 and 4 by the learned Courts below cannot be objected to. In so far as quantum of maintenance is concerned, the same cannot be said to be exorbitant or higher. Keeping in view the amount of Rs. 1,000 for the minor daughter and Rs. 1,000 for the wife, cannot be said to be unreasonable, unfair or inappropriate. In these days, even a labourer is earning more than Rs. 4,000 per month, therefore, if petitioner is made to pay Rs. 2,000 to his wife and daughter, he cannot raised any objection to the same on the ground that the same i's exorbitant. The learned Court below after taking into consideration the evidence on record, concluded that respondents Nos. 3 and 4 were entitled to maintenance which findings could not be shown to be based on lot misreading or non-reading of evidence or error of law. With these reasoning, the order of the learned Additional District Judge granting maintenance to the respondents Nos. 3 and 4 at the rate of Rs. 1,000 per month, to each, is upheld, while the order to the extent of granting maintenance to respondents Nos. 5 and 6 (children of respondent No. 3 from her ex-husband Mushtaq Ahmad) is set aside.

11. As regard the suit for restitution of conjugal rights, it is observed that Judge Family Court did grant decree in favour of the petitioner, the learned Additional District Judge by placing reliance on agreement Exh. P.1 set aside decree. As noted above, the agreement will be enforced by the parties separately in the civil litigation. There are many factors which are to be kept in view while considering grant or refusal to grant any relief for restitution of conjugal rights. The parties led evidence and the learned Additional District Judge was under obligation to consider the evidence and thereafter determine the issue on its own merits. The part of the judgment in which learned Additional District Judge dealt with' the issue of restitution of conjugal rights does not indicate that he had re-appraised the evidence or recorded any independent findings by considering the entire evidence. The Judgment to the extent of accepting the appeal in the suit for restitution of conjugal rights, therefore, cannot be sustained and is accordingly set aside. With the result that appeal of respondent No. 3 in the suit for restitution of conjugal rights will be deemed to be pending which well now be decidedly the learned Additional District Judge afresh and on its own merits after considering the evidence on record.

12. In the light of observations hereinabove, the decree for recovery of maintenance, at the rate of Rs. 1,000 each, in favour of respondents Nos. 3 and 4 is upheld, W. P. No 812 of 1997 is partly allowed and the decree for maintenance to the extent of respondents Nos. 5 and 6 is set aside. Writ Petition No. 812 of 1997 is disposed of accordingly. The other Writ Petition No. 813 of 1997 is allowed and the appeal in the suit for restitution of conjugal rights is remanded for re-decision on merits by the learned Additional District Judge. No order as to costs. Q.M.H./M.A.K./A-21/L Order Accordingly