2010 PLP 648 (MLD)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this constitutional petition petitioner Zafar Ali son of Mian Abdul Qadar seeks setting aside of judgments and decrees passed by both the Courts below firstly by Judge Family Court who passed the judgment and decree against the petitioner on 31-3-2009 secondly by the learned Additional District Judge on 9-6-2009.

2. Brief facts of the instant case are that Mst. Shazia Bibi daughter of Rab Nawaz filed a suit for recovery of dower and suit for maintenance allowance for herself and for two minors namely Muhammad Umair son of Zafar Ali and Mst. Tayyaba Bibi son of Zafar Ali in the Court of Judge Family Court Kot Addu. The petitioner appeared before the Judge Family Court, filed written statement on 25-9-2009. The learned Judge Family Court in the light of divergent pleadings framed the following issues. Issues:-- (1) Whether the plaintiff No.1 is entitled to decree for the recovery of dower five tolas gold ornaments and four kanals land situated at Peer Abdul Ghafoor Shah District Jhang? OPP (2) Whether plaintiffs are entitled for maintenance allowance, if so at what rate and for what period? OPD (3) Whether the defendant is entitled to decree for restitution of conjugal rights in this favour and against plaintiff No. 1? OPD (4) Relief. Respondent/plaintiff produced her evidence on 24-3-2009. She herself appeared as P.W.1. and filed her affidavit Exh. P-1. She also examined Rab Nawaz as P.W.2 and filed his affidavit Exh.P.2. She also produced "nikahnama" Exh. P-3.

4. Petitioner/defendant himself appeared before the Judge Family Court as D.W.1. and filed his affidavit as Exh.D-1. He also examined Muhammad Nawaz as D.W.2., produced attested copy of the decree and order, dated 29-10-2008 for restitution of conjugal rights passed by learned Judge Family Court as D.W.2. He produced photograph of plaintiff as Mark "A".

5. The learned Judge Family Court in the light of evidence on record and after hearing both the parties vide judgment and decree, dated 31-3-2009 decreed the suit of the plaintiff/respondent to the extent of recovery of dower to the extent of 1-2/2 tolas golden ornaments and 4-K of agricultural land and dismissed the suit of the plaintiff/respondent for recovery of maintenance allowance for her and decreed the suit of the plaintiff 2, 3 (minors) at the rate of Rs.1200 per plaintiff per month from 1-7-2008 till the plaintiff No.2 attained the age of 18 years and for plaintiff No.3 till her marriage from a date of this judgment and decree with 10% annual increase in the fixed maintenance allowance.

6. Petitioner/defendant filed an appeal before Additional District Judge Kot Addu on 2-5-2009 against the judgment and decree of the Judge Family Court. Learned Additional District Judge dismissed the appeal vide judgment, dated 9-6-2009.

7. The petitioner assailed judgments and decrees of both the Courts below, contending that petitioner/defendant has very limited resources of income and he is destitute person belongs to low income class of society. He furthers contends that he has another wife. He has to maintain her first wife and her children and he has to maintain his old age parents. Learned counsel for the petitioner submits that maintenance allowance fixed by both the Courts below is excessive harsh and exorbitant.

8. On the other hand learned counsel for respondent/plaintiff vehemently supported the judgment of two Courts below. Learned counsel for respondent pointed out that piece of evidence relating to statement of plaintiff about the income of the petitioner was not cross-examined by the petitioner/defendant. That piece of evidence which his not cross-examined will be considered correct. He submitted that the respondent/plaintiff in her statement through affidavit stated that the defendant/petitioner is a man of means and he is able to maintain. Learned counsel contends that minor Mst. Tayyuba and Muhammad Umair two minors are children of petitioner Zafar Ali Khan. He is bound to maintain them even in adverse circumstances. Learned counsel further submitted that writ petition against the findings of Judge Family Court which were upheld by the learned lower Court is not maintainable as there is no jurisdictional error in the two judgments and decrees of two Courts below. Learned counsel for respondent made reliance on 2009 SCMR 1243 "Waqar Haider Butt v. Judge Family Court and another" in the similar case Judge family Court had awarded maintenance allowance for two minors. The judgments of two Courts were assailed through constitutional petition which was dismissed and the' honourable Supreme Court declined to interfere in the judgment of High Court. The petitioner has to pay maintenance allowance to his own children fixed by the trial Court upheld by the lower appellate Court after correct appraisal of evidence on record. In these days of dearness maintenance allowance at the rate of Rs.1200 is not excessive or harsh in any way. It is surprising that the petitioner is maintaining his other wife but he is not ready to maintain his two minor children which were born out of wedlock of the petitioner with Mst. Shazia Bibi.

9. There is no jurisdictional error in the judgments of both the Courts below. In writ jurisdiction, concurrent, findings of two Courts below which are based on cogent reasons, on the basis of correct appraisal of evidence where no misreading or non-reading is found, cannot be disturbed in writ jurisdiction.

10. In the light of above discussion, this writ petition is dismissed with no order as to costs. H.B.T./Z-7/L Petition dismissed.