2001 PLP 2329 (YLR)

(f) West Pakistan Family Courts Act (XXXV of 1964)

S.5

Constitution of Pakistan (1973), Art. 199

Constitutional petition

Main tenance

Fixing beyond legitimate sources of petitioner

Suit for past maintenance of wife and children was filed by the respondents-- Family Court as well as the Appellate Court concurrently fixed the maintenance allowance exceeding the monthly salary of the petitioner

Validity

No doubt father was bound to maintain his children and past maintenance of wife was also permitted in Islamic Law but the dominant factors governing the adjudication of such question could not be overlooked

Where no justifiable reasons were furnished and the maintenance amount was not only disproportionate to but much beyond the legal and ostensible earnings of the petitioner, such order, could not be maintained

Both the Courts, in the present case, had fallen into error in assessing the circumstances in fixing the maintenance

Findings of the Courts on quantum/rate of maintenance, therefore, could not be sustained

Maintenance fixed by the Courts below had led to miscarriage of justice as such both the judgments of Family Court and the Appellate Court were set aside and the case was remanded to the Family Court to re-assess the quantum of maintenance of six children and their mother in the light of evidence on record-- Constitutional petition was allowed accordingly. Dost Ali Shah v. Hafiz Shaukat Ali Shah 1988 SCMR 1339; Muhammad Zakria v. Mst. Khairunnisa 1987 CLC 422;. Abdul Razak v. Ijaz Mahmood 1992 CLC 5 and Nadir Khan v. Zeenat Bibi 1990 CLC 293 distinguished. Shah Jahan v. Syed Amjad Ali Hawaldar 2000 SCMR 88 fol. Karamatullah for Petitioner. Zahir Hussain Chishti for Respondents. Date of hearing: 8th May, 2001. This Constitutional petition assails the judgments/decrees of two Courts below namely: (1) Judgment and decree dated 4-5-1999 passed by XIIth Civil and Family Court Karachi, East in Family Suit 92 of 1998 granting maintenance to Mst. Sabira Begum respondent No.1 at the rate of Rs.500 per month from November, 1997 until completion of the period of Iddat and Rs.700 per month to the children namely the respondents Nos.3, 6, 7 and 8 from November; 1997 till they joined the petitioner; and (2) the judgment dated 27-11-1999 passed by VIth- Additional District Judge, Karachi, East dismissing the petitioner's appeal impugning the aforesaid judgment and decree and additionally granting maintenance to respondents Nos.7 and 8.

2. The petitioner is a notice-server in Income-tax Department, Government of Pakistan posted at Karachi. Mst. Sabira Begum respondent No. 1 was to with petitioner and seven children namely respondents Nos.2 to 8 were born out of this wedlock. The judgment of Family Court shows that the petitioner divorced the respondent No. 1 on 5-10-1997. The respondents brought out a suit for maintenance against the petitioner which was resisted by the latter' by filing his written statement. Pre-trial was held which failed and then issues were framed and post trial was also held which, too, met the same fate. After hearing the counsel for parties learned Family Court decreed the suit in terms mentioned above and petitioner's appeal against said judgment was not only dismissed, but additionally maintenance of Rs.500 per month was allowed to unmarried daughters Afreen and Sabeen respondents Nos.7 and 8, thereby enhancing the quantum of maintenance for children to Rs.3,800 per month besides the maintenance of Rs.500 per month to widow for a limited period. The petitioner, therefore, resorted to instant petition under Article 199 of the Constitution of Pakistan, with a prayer to reduce the maintenance from Rs.700 to Rs.300 per month.

3. Learned counsel for petitioner contended that the petitioner has been squeezed down to pay much more than what he actually earned; as he was drawing a salary of Rs.2,838.90 whereas the impugned decree directs him to pay Rs.3,800 for six children and Rs.500 for respondent No.1 in all Rs.4,300 which was impossible for the petitioner to arrange. He contended that above finding is based not on the evidence on record, but on the opinion of the learned Judges themselves. According to him the maintenance is highly excessive, it may be reduced from Rs.700 to 300 per month. On the other hand, learned counsel for respondents submitted that petitioner was doing private job and he admitted in the trial Court that earlier he was paying Rs.5,000 to the respondents towards their expenses, therefore, he could afford the same now. He urged that the petitioner was bound under the law to provide maintenance to his minor children. In support of his contentions he relied on the authorities; Dost Ali Shah v. Hafiz Shaukat Ali Shah 1988 SCMR 1339; Muhammad Zakria v. Mst. Khairunnisa 1987 CLC 422; Abdul Razak v. Ijaz Mahmood 1992 CLC 5 and Nadir Khan v. Zeenat Bibi 1990 CLC 293.

4. The case of petitioner is primarily based on the plea that he draws a salary of Rs.2,838.90 as evidenced by the Salary slip. It was vehemently contended that the petitioner would not be able to pay the aforesaid amount of maintenance which comes to Rs.4,300 per month. In this context it may be observed that the terms 'salary' and 'income' connote two different aspects relating to one's earnings. Salary is the net amount of payment made for a fixed period usually a month, by the employer to the employee, whereas the term income is co -related to the entire earnings including the salary or salaries if there are other jobs also for the said period. No doubt the 'Income' and 'total earnings' cannot be confined to a particular salary, but then, in order to compel the father to pay an amount of maintenance to his children beyond his salary it should be shown that his earning or say, the income was much more than that.

5. The judgment of trial Court shows that the petitioner in his cross-examination in the trial Court denied that he was doing any part time job. He had also denied that he was receiving rent from tenants to the tune of Rs.3,000 per month. On the contrary he stated that he was beaten and driven out of the house by his children; and he left the house on 19-11-1997. Obviously, in such a situation the petitioner had to arrange a new accommodation incurring new expenditures. The trial Court has, however, taken note of the admission by the petitioner that he used to pay Rs.5,000 to respondent/plaintiff No.1 when he lived with her. This admission by itself is not enough to establish legitimate income of the petitioner. In the event of denial by the petitioner of any extra source of income the burden shifted to respondents to establish that the quantum of legal earnings of petitioner was much more than the ostensible income. It would be beyond the proportions of law and propriety to presume that the petitioner's admission that he paid Rs.5,000 to his wife, proved his lawful income.

6. Although, it has not been stated in so many words by the Courts below in their judgments but between the lines it can be read that while awarding the maintenance it has been speculated that the petitioner will pay the maintenance by surrendering his entire salary and further supplementing it with unidentified and unexplained income. It would be difficult for this Court to assume that the petitioner would be able to comply with the order of Court by hook or by crook--may be by earning something through any source otherwise than lawful means.

7. Nothing has come on record to suggest that the petitioner has other properties also, therefore, in the event of execution of decree the property in possession of the respondents would, certainly, be liable to attachment and that situation would turn to be troublesome to the respondents who are in possession of the house. Nevertheless, the salary itself cannot be attached beyond half of it. Islam does not compel a person to do an act beyond his capacity, therefore, social status of the petitioner and level of legitimate financial sources which are eminent factors for deciding the quantum of maintenance shall not be ignored. These aspects have not been dilated upon by the Courts below with realistic approach nor the evidence bas been appraised with due precision. No doubt father is bound to maintain his children and past maintenance of wife is also permitted in Islamic Law but the dominant factors governing the adjudication of such a question stated above cannot be overlooked. Both the Courts below had fallen into error in assessing the circumstances in the above perspective, their findings on quantum/rate of maintenance, therefore, cannot be sustained.

8. In view of the conclusions reached above, and the fact that the evidence has not been truly assessed by the Courts below, the contention of learned counsel for respondents based on the case law that the concurrent findings of Courts below may not be disturbed in exercise of the Constitutional jurisdiction cannot be accepted. In Muhammad Zakria's case 1987 CLC 422 the concurrent findign were found to be based on the evidence on record, but as discussed earlier, such evidence in the instant case is badly lacking to render support to the findings of learned lower. Courts as to the quantum of maintenance allowed. In Dost Ali Shah's case 1988 SCMR 1339 the facts were noticeably different. There was only one disabled child in whose favour meagre amount of maintenance was granted at the rate of Rs.100 per mensum. Obviously, the observations made in the cited case would not help the respondents. Similarly, the facts in Abdul Razak's case 1992 CLC 5 are also plainly distinguishable. Ijaz Mehmood was the only minor in whose favour maintenance was allowed at the rate of Rs.500 per month. Moreover, the petitioner therein after divorcing the mother of Ijaz Mehmood had contracted second marriage whereas the mother of minor had not. The single amount of Rs.500 was not that much burdensome, the Lahore High Court had, therefore, declined to reduce the amount of maintenance. In Nadir Khan's case 1990 CLC 293 the Peshawar High Court found That the Appellate Court had maintained the order of maintenance on cogent reasons and by invoking the finding of Arbitrator in that behalf. As discussed above, in the present case no justifiable reason has been furnished and the maintenance amount is not only disproportionate but much beyond the total legal and ostensible earnings of the petitioner, such order, therefore, cannot be maintained.

9. The decisions of both the Courts below have led to miscarriage of justice as such both the judgments of Family Court and the Appellate Court are set aside and following the principle laid down in Shah Jahan v. Syed Amjad Ali, Hawaldar 2000 SCMR 88 the case is remanded to the trial Court to re-assess the quantum of maintenance of six children and their mother in the light of evidence on record. The trial Court is permitted to allow the respondents/plaintiffs to adduce necessary evidence to prove the total legitimate earning/income and other properties of the petitioner and also to offer similar opportunity to the petitioner to rebut the claim of respondents.

10. The petition is disposed of in above terms but subject to the condition that since the petitioner has shown his willingness to pay Rs.300 per. month as maintenance and it was also gathered during the arguments that nothing has so far been paid by him, he should deposit subject to adjustment the balance of entire. past maintenance from November, 1997 and onwards in the trial Court purely on tentative basis at the rate of Rs.300 per month (for all) within 60 days hereof and shall also deposit in the trial Court current maintenance for 6 children by the 10th day of each running month tentatively at the rate of Rs.300 per month. The respondents shall be permitted to draw the above amount. Costs of this petition be borne by the petitioner. Q.M.H./M.A.K./S-133/K Order accordingly.