2004 PLP 1548 (MLD)

The instant W.P. No.19437 of 2002 and W.P. No.572 of 2003, are being disposed of together, as these have been flied by the respective parties, challenging the same judgments and decrees of the forums below.

2. Briefly stated the facts of the case are that, the petitioner andMst. Ghazala Abid Rizvi (the petitioner No.2 in the connected writ petition), were married on 28-3-1996, and after briefly residing in Europe, they shifted to Kuwait, where the petitioner started working with some organization as a "Computer Analyst". The respondent No.1 Muhammad Salim (minor), was born to the spouses on 26-4-1997; when the minor alongwith his mother came to Pakistan on 23-6-2001; within seven days of their arrival, on 2-7-2001, three suits were brought i.e. (i) suit for dissolution of marriage by Mst. Ghazala Abid Rizvi against the petitioner; (ii) suit for recovery of the dower amount of Rs.10,000, (iii) the suit for the maintenance by Mst. Ghazala and the minor claiming Rs.50,000 each, per month as the requisite allowance; for the past sinceJune 1999, as allegedly the petitioner had failed to maintain the plaintiffs, from that point, as also the future maintenance at the same rate.

3. The petitioner contested the matters, issues were framed, parties were put to trial, and the learned trial Court vide consolidated judgment and decree dated 17-6-2002, decreed the suits for the dissolution of marriage and for the dower in favour of Mst. Ghazla Abid Rizvi, while in the third suit for the maintenance, the lady was granted past maintenance at the rate of Rs.10,000 per month w.e.f. June 1999, but was declined the future maintenance. For the minor respondent No.1, past maintenance was fixed at Rs.2000 per month and the arrears on the above calculation for the same period were granted to him, while for his future maintenance, the amount was Rs.5000 per month, with 10% increase every year.

4. Both the parties, feeling dissatisfied with the decision, preferred the appeals, and the learned Appellate Court, by partly accepting the appeal of the petitioner has set aside the judgment and decree of the trial Court, awarding the past maintenance to Mst. Ghazala Abid Rizvi, while the appeal of respondent No.1 (minor) seeking enhancement in the maintenance was accepted and he has been granted maintenance at the rate of Rs.34,000 per month w.e.f. June 1999. It has been further directed by the Court of appeal that, out of the aforesaid, the mother shall invest 80% in the purchase of Saving Certificates in the name of the minor.

5. Against this judgment and decree of the learned Court of appeal dated 20-9-2002, again both the parties being aggrieved, have filed the instant writ petitions. In the connected petition, (the petitioners of that case), inter alia claim the maintenance as prayed in their suit for the maintenance. On the other hand, the petitioner being aggrieved of the amount of Rs. 34,000 per month, to respondent No.1 has challenged the said judgment and decree.

6. I will first take up the W.P. No.572 of 2003, to the extent of Mst. Ghazala Abid Rizvi, and hold that, the spouses were living in Kuwait; the lady arrived in Pakistan on 23-6-2001 and on 2-7-2001, the suit was filed. The case of the lady, that the petitioner (Syed Salim Imtiaz Hussain) had abandoned her in Kuwait since June 1999 she has been living with her brother, haS not been substantiated on the record. Even the name of the brother has not been disclosed in the plaint, such brother has not been examined. There is no independent proof on the record, if Mst. Ghazala Abid Rizvi and the minor were expelled from the house by the petitioner and they were living and being maintained in Kuwait by Ghazala's, brother till 23-6-2001. Resultantly, the learned Court of appeal has rightly interfered and declined to award anymaintenance to the lady. No exception can be taken to such judgment and decree.

7. As regards the maintenance claim of the minor is concerned, suffice it to say that, the learned Court of appeal has come to the conclusion, that the salary of the petitioner is Rs.1,70,000 per month. After having held so, the learned Judge observed, that the income/earning of a person has to cover the following spheres: (1) Personal expenditures. (ii) Expenditures for close relatives, including parents, brothers and sisters. (iii) Expenditure on wife. (iv) Expenditure on children. (v) Saving for future emergencies/fulfillment of necessities, other than every day expenditures such as house buildings etc. Then, the learned Judge, simply divided the above amount. By five and has awarded Rs.34,000 as maintenance to the minor. But subject to certain conditions, which are mentioned in paragraph No.10 of the judgment, and are reads as below:

1. The period of maintenance shall start from June 1999.

2. This maintenance allowance at the rate of Rs.34,000 per month shall only continue during the period of present job/pay of the defendant and shall automatically adjust to 1/5th portion of his income/pay in future and if his job/salary changes.

3. The maintenance allowance shall continue uptil the time Mohammad Saleem minor attains the age of majority or his legal custody is granted to him by the Court of competent jurisdiction whichever occurs earlier.

4. If the defendant Saleem Imtiaz Hussain contracts other marriage and gives birth to children then the maintenance amount shall accordingly be adjusted as equal portion of 1/5th share of his income among all the children of the defendant if become more than one.

5. The guardian and/or mother of Mohammad Saleem minor shall purchase defence saving certificates in the name of the minor out of the 80% (4/5th) of total maintenance received by, her on behalf of the minor for a calendar year during the month of January of next year and she shall not get it encased until the minor attains the age of the majority as the minor has only thepersonal expenditure out of the five above mentioned categories of expenditures and the four categories shall only come into picture on his attaining the age of majority.

8. I have heard the learned counsel for the parties. Undoubtedly, the father is legally and morally bound to maintain his child. One of the criteria for determining the quantum of maintenance, obviously is the income and status of the father, but it does not mean that, by taking the total income of the father and dividing it on some subjective and unknown principles, the Court should grant allowance on unfounded mathematical rule. The Court of law cannot act whimsically and in a capricious manner, but is supposed to find out from the evidence on the record, as to what is the requirement of the minor for the purpose of his subsistence, which means the support to his life; this definitely includes the food, clothing, lodging, education, medical care and some amount for extra curricular activities of the minor etc. Unfortunately, the learned Court below has neither undertaken this exercise, nor it has been so proved by the respondent on the record, that for his subsistence, the amount of Rs.34000 per month is essential. Moreover, while passing the judgment, under condition No.5, only the amount of 20% of the maintenance allowance of Rs.34,000 has been directed to be spent upon the minor, which comes to about Rs.7000. Whereas, for the remaining amount of Rs.27;000, the mother has been directed to purchase the Defence Saving Certificates in the name of the minor, which shall only be en-cashable, when the minor attains the age of majority. This part\pf the judgment has not been challenged by the respondents. The above, therefore, clearly shows that the learned Court below in fact has granted Rs.7000 as maintenance to the minor and this cannot be reduced having been fixed by a Court of competent jurisdiction, but the balance of Rs.27,000 per month is for his future security. I am not convinced, if the maintenance, which undoubtedly is in the nature of a support allowance meant for the purposes mentioned above, can be equated with the future security of the minor, usable by him after he attains the age'of majority. Therefore, such judgment and decree cannot be sustained.

9. It may be pertinent to mention here that, this petition when came up for hearing before this Court on 4-11-2002, the following order was passed:- "Notice. The operation of the impugned judgment is suspended subject to the petitioner depositing Rs.10,000 per month as past maintenance w.e.f. 23-6-2001, with the Deputy Registrar (Judicial) of this Court and for future maintenance, shall pay the amount at the same rate through money order to the mother of the respondent No.l."

10. This order has been complied with and when questioned about the excess amount than Rs.7000 the learned counsel for the petitioner on instructions, has candidly conceded that the petitioner does not want to withdraw any of the amount deposited and further that, the petitioner shall continue making the payment of Rs.10,000 per month to the respondent/minor, because he is his son and he wants him to have the best for his needs and the education. Resultantly, in the light of above, the impugned judgment and decree of the learned Court of tapeal, though is set aside, but the petitioner shall keep on making the payment of Rs.10,000 per month to the minor as maintenance. However, when the minor shall cross his 5th class and is yet in the custody of his mother, and his needs are increased, he may apply to the Family Court for further adequate increase in the maintenance, which matter shall be decided on its on merits. In the light of above, the W.P. No.572 of 2003 is dismissed, whereas the W.P. No.19437 of 2002, subject to the observation and direction given above, is allowed. M.H./S-196/L Order accordingly.