1992 PLP 2270 (CLC)

This application under Article 199 of the Constitution is against an order dated 9‑4‑](Y)2 of learned Additional District Judge of Sahiwal, whereby appeal preferred from the maintenance‑decree by the appellant was rejected for failing to pay requisite court‑fee payable on the memorandum of appeal. Facts and circumstances, which gave rise to this petition, briefly stated are:‑ Petitioner and respondent No.3 arc husband and wife. They were married on 19‑5‑1988. Two children were born to them from this marriage. First is son. Second to him is their daughter. Both are of extremely tender ages. Respondent No.3 is the third wife of the petitioner. His first wife was dead. Probably, he has a son from her. He took a second wife. From her, he has a son and two daughters. Respondent No.3 accused the petitioner of acts of cruelty and ill‑treatment. She also levelled charges of acts of immorality against him, and, asserted that she was turned out of his house by him. On her own behalf, and, for two minors acting as their next‑friend, she filed a suit for the past and future maintenance against the petitioner. He contested his liability to pay separate maintenance to her and the minors. Family Court, vide its judgment dated 11‑12‑1991 decreed maintenance to the minors at the rate of Rs.230 each per mensem for past six months and future maintenance at the same rate. Respondent No.3 was found disentitled to separate maintenance. Petitioner preferred an appeal under section 14 of the Family Courts Act, 1904, to the learned District Judge, Sahiwal. Appeal was marked for hearing to learned Additional District Judge, Sahiwal. Petitioner did not pay court‑fee on the memorandum of appeal. On 27‑1‑1992, lower Appellate Court called upon him to make good the deficient court‑fee in the sum of Rs.4,500 by 17‑2‑1992. Later, petitioner claimed immunity from the payability of court‑fee, because of a judgment of Federal Shariat Court holding that charging of court‑fee on documents filed in Courts was un‑Islamic. In the alternative, petitioner urged for time for arranging to pay required amount of court‑fee. Order sheet is not appended. Therefore, it is not known on present record about the nature of the order made by the Court on the aforenoted prayer. Eventually, it was noted by the lower appellate Court that despite four opportunities, court‑fee was not paid. Therefore, appeal was rejected by the impugned order. Against this order, a writ petition has been filed in this Court. Learned counsel has been heard. It is stated that court‑fee was not payable on the memorandum of appeal, and, the Court demanding it acted in excess of jurisdiction. In the facts and 6rcurnstances,noted below, I have not been able to discover any merit in the contention. Mother of the minors held their custody. Liability of the father to provide adequate maintenance to them to cover expenses for their food and raiments is unquestionable. The liability subsists, till actual transfer of their custody to him. He cannot insist and withhold maintenance on condition of their residing with him. In the scuffle between the parents, children ought not to suffer neglect and starvation. Therefore, Family Court rightly adjudged the liability of the father. Period and quantum of maintenance in the present day soaring prices of consumer goods and necessities of life could not be termed excessive. As far non‑payment of court‑fee on. the memorandum of appeal filed in the Court below, petitioner could offer no condonable legal excuse. Family Court assessed maintenance at Rs.250 per month for each child, and, gave them maintenance for six months past and future maintenance at the same rate. As far arrears of maintenance for past six months, the case was covered by section 7(i) and future maintenance in section 7(ii) of the Court, Fees Act, 1870. Hence, petitioner was obliged to pay court‑fee on the value of the subject‑matter in dispute in appeal i.e. arrears and future maintenance, computed in terms of the aforenoted section of the Court Fees Act read with its Article 1, Schedule

1. Lower Appellate Court had rightly called upon for demanding additional court‑fee on the memorandum of appeal filed before it and the petitioner had no acceptable excuse for not paying the court‑fee in time fixed, and, later extended by the Court. Judgment of the Federal Shariat Court in Dr. Mahmood‑ur‑Rehman. Faisal v. Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and 6 others PLD 1992 Federal Shariat Court 195, did not provide legal cover to his lapse because it has, as yet, not taken effect. Principally, weighty consideration for withholding interference is the concern to avert suffering of the minor children from neglect of the father to provide sustenance to them because of his sheer stubborness and obstinacy. Repeated travel of litigation between the Courts shall add to their agony, which the Court in equitable jurisdiction must share. Judgment of this Court in Muhammad Khalil v. Mst Zahida Perveen land others PLD 1991 Lah. 51 relied upon proceeded on distinguishable facts and was not helpful to the point in hand. Conversely, decision of the Supreme Court in Mirza Daud Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1161 is on all fours. In course of hearing, it was brought out that the petitioner has already instituted a petition under section 25 of Guardians and Wards Act for the recovery of the minor children from the mother. If that be so, till final decision in the aforesaid case, maintenance to the minors cannot be suspended. Having regard to the aforesaid, writ petition is shown to have little substance in it. It is, accordingly, dismissed in limine. H.B.T./47/K‑L Petition dismissed.