1996 MLD 672 (PLP)

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Both Courts below having not committed any material irregularity or illegality while passing judgments and decrees challenged in Constitutional petition, High Court declined to interfere in findings of Courts below. Makhdoom Ijaz Hussain Bokhari for Petitioner. Syed Muhammad Hussain Shah Qadri for Respondent No.2. The petitioner through this Constitutional petition has prayed for declaration that judgments and decrees, dated 3‑1‑1994 and 14‑11‑1994 passed by the Judge Family Court, and Additional District Judges, Sahiwal, are without lawful authority acid of no legal effect.

2. The relevant facts are that the petitioner and respondent No.2 married together on 12‑2‑1988, but there was no issue out of the wedlock. Some differences arose after the petitioner contracted second marriage. Respondent No.2 filed a suit for grant of maintenance. The petitioner contested the suit. The learned Judge Family Court framed the issue, recorded evidence and after hearing the arguments of both the parties decreed the suit and allowed maintenance at the rate of Rs.500 per month w.e.f. the date of institution of the suit vide judgment dated 3‑1‑1994. The petitioner challenged this order through an appeal which was also dismissed vide judgment dated 14‑11‑1994. The petitioner has now impugned both these judgments and decrees.

3. On 27‑7‑1995 pre‑admission notice was issued to respondent No.2. Respondent No.2 appeared through her counsel and contested the petition.

4. Learned counsel for the petitioner in support of his petition argued that the impugned judgments and decrees of both the Courts below are against law, facts and evidence on record. He has further argued that judgments of both the Courts below are based on surmises and conjectures as well as misreading and non‑reading of evidence on record. He urged that Exh.Pl (Nikahnama) is a forged one upon which the maintenance was granted to respondent No. L He further argued that respondent No.2 had left the house of the petitioner herself without any cogent reason and had been living separately, therefore, she is not entitled for the grant of maintenance.

5. On the other hand learned counsel for respondent No.2. has submitted that during the execution proceedings of the impugned judgments and decrees, the petitioner had agreed to pay Rs.1,000 per month as instalment in respect of past maintenance and Rs.500 per month in respect of current/future maintenance. In the same execution proceedings respondent No.2 also gave her consent for the acceptance of aforementioned settlement and also received Rs.3,

500. The arguments are summed up with the submission that it is the duty of every husband to maintain his wife in a well mannered way.

6. I have given my anxious consideration to the arguments of learned counsel for the parties and gone through the record. Admittedly the marriage between the parties still subsists. The petitioner has contracted second marriage without the permission of respondent No.2. The contention of the learned counsel for the petitioner that respondent No.2 has left her house according to A her own wishes and is living separately on her own volition, disentitles her from the claim of maintenance, is totally baseless simply on the ground that the petitioner has not instituted suit for, restitution of conjugal rights against the respondent No.2 uptill now. The second contention of learned counsel for the petitioner that Exh.PI (Nikahnama) is a forged one, it also not seems to be plausible on the ground that he has not produced any other document/Nikah nama, if the present one, in his opinion, is forged. Although the petitioner has initiated proceedings for cancellation of the Nikahnama (Exh.Pl) but the same has no force in the eyes of law because mere filing of suit for cancellation of Nikahnama (Exh.Pl) does not have any legal effect upon allowing maintenance of the legally‑wedded wife. Irrespective of the above facts, the petitioner had himself admitted in the written statement to the suit for maintenance that respondent No.2 is legally‑wedded wife. It is also evident from the record that the petitioner is landlord and owns 25 acres of agricultural land.

7. The upshot of the above discussion is that the maintenance granted by the two Courts below at the rate of Rs.500 per month is just proper and reasonable, keeping in view the source of income of the petitioner. In forming of my opinion in this case I fortified from the judgment reported as 1991 SCMR 362 Ehsan‑ul‑Haq v. Shahnaz Begum. I am of the view that both the Courts below have not committed any material irregularity or illegality while passing the impugned judgments and decrees, so I am not inclined to interfere in the findings of the Courts below in exercise of my writ jurisdiction. Resultantly the petition is dismissed in limine with no order as to costs. H.B.T./T‑117/1 Petition dismissed.