2009 PLP 1403 (MLD)

ZUBDA-TUL-HUSSAIN, J.

Mst. Riffat Nazir, respondent No.1 was married to the petitioner, Shafqat Ali, but the spouses failed to maintain cordiality and respondent No.1 along with the minor children Sehar Shehzadi and Irfa Ali started living separately from the petitioner. Then she filed a suit for maintenance allowance for herself as well as for the minor children. The suit was decreed for maintenance allowance in favour of respondents at the rate of Rs.1000'per month each. However, to the extent of respondent No.1 the decree was only for the period from the institution of the suit till the expiry of period of `iddat' after the divorce pronounced by the petitioner to respondent No.1. The order of the learned Judge Family Court was not appealable yet the appeal having been filed was dismissed on merits by the learned Additional District Judge, Pattoki, District Kasur on 25-5-2006.

2. The order, dated 26-6-2006 of this Court shows that the learned counsel for the petitioner did not press the writ petition to the extent of the two minor daughters. Thus, presently only the maintenance allowance in favour of respondent No.1 is in dispute.

3. The learned counsel for the petitioner has contended that the findings of the learned trial Court are the result of misreading and non-reading of the evidence and as such are not sustainable in the eyes of law. The learned counsel for the respondents has argued that as the appeal was not maintainable against the order of the learned Judge Family Court, this writ petition is also not tenable. This objection has no force for the reasons that in case the appeal was not maintainable, the petitioner had no other remedy to question the judgment of the learned trial Court except through the instant writ petition. Hence, the maintainability of the writ petition cannot be disputed.

4. The available record indicates that respondent No.1 in her statement before the learned trial Court deposed in very clear terms that the petitioner was living with his parents and in spite of her demand for a separate residence, he did not sever his residence from his parents. She then added that the only dispute she had with the petitioner was for a separate and independent residence. Then she stated that the petitioner was not paying any maintenance to her but thereafter stated that she was not prepared to put up with the petitioner even if he gave her reasonable maintenance. The above mentioned statement of the respondent leads to the conclusion that she is not prepared to live with the petitioner and is thus living away from him without any reasonable excuse. There is no doubt that she had linked up her demand for separate living with the residence of her husband from his parents but it is admitted fact that the petitioner is the only son of his parents who are dependent upon him. In these circumstances the demand of the respondent asking the petitioner to give up his residence from the house of his parents was not reasonable.

5. The parents of the petitioner also have a right of their living with their son and to have maintenance from him. Throwing away the old parents in solitude and in economic or social helplessness is not justifiable by any standards of morality, social ethics and even the law. The demand of the respondent was, therefore, unjustified. Her refusal to put up with the petitioner, therefore, had disentitled her from receiving maintenance allowance from him. The learned lower Courts were, therefore, not justified in law or on facts to pass a decree for maintenance allowance in favour of respondent No.1. The impugned judgments are, therefore, declared to be unlawful to the extent of granting maintenance allowance to respondent No.1. The same are accordingly set aside and the suit of the respondents to the extent of maintenance allowance to her stands dismissed. There shall be no order as to the costs. H.B.T./S/167/L Petition allowed.