2011 PLP 1105 (MLD)

SH. AHMAD FAROOQ, J.

Through the instant constitutional petition, the petitioner has called in question the validity of order dated 26-10-2010, passed by the learned Judge, Family Court, Lahore, wherein while deciding an application under section 47-A of the West Pakistan Family Courts Act, 1964, the petitioner has been directed to pay Rs.15000 per month to respondents Nos. 1 and 2 each as interim maintenance allowance.

2. The learned counsel for the petitioner contended that the impugned order is against law and facts on the record. He maintained that both the respondents, who are daughters of the present petitioner, are major and despite the fact that the petitioner is willing to keep them with him, they are living away from him, without any reason, and this fact disentitles them from claiming maintenance allowance from their father. The learned counsel has placed reliance on the cases of Dinsab Kasimsab v. Muhammad Hussen Dinsab and another (AIR (32) 1945 Bombay 390) and Mst. Chulam Fatima v. Sheikh Muhammad Bashir (PLD 1958 (W.P.) Lahore

596. The learned counsel argued that as the petitioner has denied entitlement of the respondents to claim maintenance, fixation of interim maintenance is not warranted under the law. The' learned counsel lastly, contended that the rate of interim maintenance is exorbitant and not in consonance with the source of income of the petitioner.

3. The learned counsel for respondents Nos. 1 and 2 argued that the petitioner has contracted second marriage in December, 1996 and relinquished the right of custody of respondents Nos. 1 and 2 in exchange of valuable property 'and executed an agreement to this effect on 14-9-1998. The learned counsel further contended that the petitioner owns a huge property and besides salary he also earns a lot from other sources. The learned counsel argued that the interim maintenance of Rs.15,000 for each of the respondents is not on higher side as it would hardly meet their fees expenses.

4. Arguments heard. Record perused.

5. Admittedly, the petitioner is an officer in B.S. 19, enjoying a high status. The respondents/plaintiffs in their suit have asserted that the petitioner is the only son of his parents, and his father and second wife are benami owners of a huge property and he is the main beneficiary of the income accruing thereof. The petitioner admitted in his written statement that he received financial support from his father/defendant No.2 for the construction of a house in Islamabad. The petitioner has also admitted execution of agreement dated 14-9-1998, according to which the petitioner himself acknowledged that the custody of respondents Nos.1 and 2 should be with their mother, even in case of remarrying. In the said agreement, there is no clause absolving the present petitioner from the responsibility of providing maintenance allowance to his daughters. The question of entitlement of the respondents to claim maintenance allowance would be determined after recording of evidence of both the parties. The lis in hand, relates to the interim maintenance which can be enhanced or reduced at the time of final decision of the suit filed by the respondents and it has been fixed only after tentative assessment of the status of the petitioner. In the cases relied upon by the learned counsel for the petitioner, the question involved did not relate to the interim maintenance. The quantum of interim maintenance allowance in the present case' is not excessive or on higher side in view of the status of the parties and expenses being incurred on the education and other necessities of respondents Nos.1 and

2. Furthermore, determination of adequacy or inadequacy of the quantum of interim maintenance allowance would certainly require factual enquiry, which cannot be done by this Court in the exercise of its constitutional jurisdiction. Even otherwise, the impugned order is interlocutory in nature, and the rate of maintenance allowance is based on tentative assessment, which could not be questioned in the constitutional jurisdiction of this Court. In this regard reliance is placed on the case of Mst. Sitwat Chughtai and another v. The Judge, Family Court, Lahore and another PLD 2009 Lah. 18.

6. In view of the foregoing reasons, I do not find any infirmity or illegality in the impugned order. Resultantly, the instant petition is dismissed. A.R.K./A-79/L Petition dismissed.