2012 PLP 1394 (MLD)

SAGHEER AHMAD QADRI, J.

Brief facts necessary for the disposal of this writ petition are that two separate suits for recovery of maintenance allowance were filed by the respondents i.e. one by respondent No.1 Mst. Ansar-un-Nisa for herself as well as for the minor children Mst. Tabina Bashir, Mst. Shazina Bashir (daughters) and Rehan Bashir (son) on 6-3-2010 claiming Rs:15,000 each i.e. total Rs:60,000 per month and second by Mst. Bushra Bashir and Aleena Bashir (daughters) on 29-11-2010 claiming Rs:30,000 each per month. As per plaints of the above referred suits respondent No. 1 was married to petitioner Ch. Muhammad Bashir on 1-8-1988 and out of the wedlock she gave birth to five children; that at the time of filing of the first suit by respondent No.1, her two daughters namely Mst.Bushra Bashir and Alina Bashir were residing with their father i.e. petitioner-defendant at Dubai; that petitioner-defendant some time ago sent back the plaintiffs-respondents to Pakistan and performed second marriage without obtaining consent from respondent/plaintiff No.1. In both the plaints, the plaintiffs have mentioned that petitioner-defendant is a man of means and can easily pay the maintenance allowance at the claimed rate. Petitioner-defendant submitted his written statements in both the suits wherein he raised respective preliminary objections and denied the assertions taken by the plaintiffs/respondents in their respective plaints and in reply to para 5 submitted that his maximum monthly income was Rs.50,000 and nothing else. Out of the pleadings of the parties, learned trial court framed the following consolidated issues:-- (1) Whether the plaintiffs are entitled to get maintenance, if so, at what rate for which period? OPP (2) Whether the plaintiff has no cause of action? OPD (3) Whether the suit of the plaintiff is false, frivolous and fictitious, hence, liable to be dismissed with special costs? OPD (4) Relief. Parties led their respective oral as well as documentary evidence. Learned trial court after thrashing out whole of the evidence produced by both sides while deciding Issue No. 1 granted Rs.10,000 per month each to the plaintiffs children only and decreed the suits accordingly vide judgment and decree dated 20-4-2011. Feeling aggrieved parties i.e. plaintiffs in both the suits as well as petitioner-defendant separately filed their three respective appeals and the learned Additional District Judge, Rawalpindi vide consolidated impugned judgment and decree dated 26-7-2011 accepted the appeal of plaintiff/respondent No.1 by granting her maintenance allowance @ Rs.10,000 per month and dismissed the appeals of the respondents-minor plaintiffs as well as that of petitioner-defendant regarding enhancement and reduction in the quantum of maintenance allowance respectively. Feeling aggrieved the petitioner has now preferred instant writ petition.

2. Learned counsel for the petitioner argued that findings of the learned appellate court on Issue No. 1 whereby respondent No. 1 Mst. Ansar-un-Nisa has been granted maintenance allowance are illegal and without any lawful justification; that learned trial court while deciding issue No.1 rightly held that as respondent No. 1 Ansar-un-Nisa was a disobedient wife and refused to perform her matrimonial obligations towards the petitioner-defendant, hence, she was not entitled for any maintenance allowance; that while reversing these findings learned appellate court has misread the evidence available on record. As far as respondents Nos. 2 and 3 are concerned, they both are now major and even otherwise also disobedient daughters hence they are also not entitled for any maintenance allowance. Learned counsel referred the statement of respondent No. 1 Ansar-un-Nisa who appeared as P.W.1 whereby she during her cross-examination admitted that the petitioner even offered and was ready to get both the daughters married but she as well as both respondents Nos. 2 and 3 did not agree. Contends that in such circumstances when all the three respondents are not abiding by the lawful desires of the petitioner-defendant, they were not entitled for any maintenance allowance. It was further argued by the learned counsel for the petitioner while referring the statement of DW-2 Muhammad Akram father of respondent No. 1 who categorically stated about his own daughter that she was a disobedient wife; that it is an extra-ordinary statement made by a father against his own daughter which cannot be lightly ignored; that the quantum of maintenance allowance fixed for the respondents by both the learned courts below is also challenged by the learned counsel for the petitioner being not fixed in accordance with the financial status of the petitioner keeping in view the evidence available on record specially with reference to documents/pay slip of the petitioner (Exh.D3); that these aspects were totally ignored rather evidence on these aspects was even misread by the learned trial court which resulted in reaching at a conclusion which itself tantamount to non-exercise of jurisdiction vested in a court, hence, the same is liable to be set aside while exercising the writ jurisdiction. While placing reliance on judgment cited as Mst. IQBAL BIBI v. BASHIR AHMAD (2006 CLC 1754) about which it was asserted by the learned counsel that it was cited before the learned appellate court who did not even bother to refer the same in the judgment. Further relying on Mst. GHULAM FATIMA v. Sheikh MUHAMMAD BASHIR (PLD 1958 (W.P) Lahore 596), Syeda ADRISH and another v. Syed ANWAR-UL-HAQ and 2 others (PLD 2011 Lah. 569), ABDUL REHMAN v. KHALIDA BI and 2 others (1980 CLC 1098), Mst. IQBAL BIBI v. BASHIR AHMAD (2006 CLC 1754), Mst. SHERINZADGI v. GUL MUHAMMAD (PLD 1961 (W.P) Peshawar 66) and RASHID AHMED v. ADDITIONAL DISTRICT JUDGE LAHORE and 4 others (2011 YLR 1632) prayed that this writ petition be allowed.

3. On the other hand, learned counsel for the respondents while vehemently opposing the arguments advanced by learned counsel for the petitioner referred that respondent No. 7/Additional District Judge, Rawalpindi while reversing the findings of learned trial court on Issue No. 1 in respect of the maintenance allowance to the extent of respondent No. 1 rightly passed the order as there was ample evidence available on record through statement of Ansar-un-Nisa/respondent No. 1 as P.W.1 whereby she specifically brought on record that she was sent back from Dubai by the petitioner-defendant as he contracted second marriage; that later on the petitioner himself sent respondents Nos. 2 and 3 to Pakistan to live along with respondent No. 1 their mother Ansar-un-Nisa and since then they were residing herein at Rawalpindi and were getting education; that source of income as well as status of the petitioner was proved through the evidence led by respondents Nos. 1, 2 and 3 as well as his own admissions and statement of witnesses examined in court; that as both the daughters are residing with their mother respondent No. 1 and getting education and are still unmarried, therefore, under the Muhammadan Law they were entitled for the maintenance allowance; that there is no evidence available on record to prove respondents Nos. 1 to 3 as disobedient to the petitioner/defendant and both the learned courts below to the extent of respondents Nos. 2 and 3 concurred in this respect while learned appellate court rightly found respondent No. 1 entitled for the maintenance. The judgments cited by learned counsel for the petitioner are not applicable in the peculiar facts and circumstances of the present case. In these circumstances, concurrent findings of both the courts below whereby the factual as well as legal aspects decided cannot be interfered in writ jurisdiction. Prayed that this writ petition be dismissed.

4. I have considered the contentions raised by learned counsel for the parties and have gone through the record.

5. The findings of the learned trial court as well as appellate court on Issue No. 1 are the main controversy raised by the counsel for the petitioner in this writ petition. Learned counsel for the petitioner, as mentioned in his arguments, before this Court mainly agitated that as respondent No. 1 was a disobedient wife, therefore, she was rightly declined the maintenance allowance as held by the learned trial court and findings of the learned appellate court whereby she was allowed this benefit is without any lawful justification.

6. As far as respondents Nos. 2 and 3 Mst. Tabinda Bashir and Shazina Bashir respectively are concerned, learned counsel while referring their own statements as well as statement of respondent No. 1 while appearing as P.W.1 to P.W.3 submitted that they are adult ladies as well as disobedient to their father i.e. petitioner, therefore, they are also not entitled for any maintenance allowance. Under paragraph 370 of Principles of Muhammadan Law by D.F Mulla it is provided:-- "Maintenance of children and grandchildren. (1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (section 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. (2) If the father is poor, and in capable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be. (3)

If the background of the controversy between the parties as brought on record and to some extent both sides are agree as the petitioner Ch. Muhammad Bashir alongwith his wife respondent No. 1/Ansar-un-Nisa and the other respondents Nos. 2 to 6 their children had been residing at Dubai wherefrom initially the petitioner sent back respondent No. 1 along with three minors to Pakistan as he contracted second marriage. Subsequently he sent the other respondents to Pakistan. He during his cross-examination admitted:-- If the above mentioned portion of the cross-examination of the petitioner is seen, he has admitted the fact that respondent No. 1 was sent back by him from Dubai to Pakistan. Later on the remaining respondents also reached Pakistan under the same circumstances either by their own choice or keeping in view the controversial background.

7. Another aspect which learned trial court while deciding Issue No. 1 against the respondent No. 1 Ansar-un-Nisa did not consider was that petitioner Ch. Muhammad Bashir the husband is residing in Dubai along with his second wife while she in the above mentioned circumstances was forced to reside herein Pakistan along with the minors. In such circumstances when husband is residing abroad and wife is living herein Pakistan along with the minors, it cannot be said that she was in disobedience of any of the wishes of husband and was living apart from him. In these circumstances, when the matrimonial bond is still intact between the petitioner and respondent No. 1, he was bound under the law to maintain his wife thus findings of learned appellate court on Issue No. 1 to the extent of respondent No. 1 are correct and do not call for any interference.

8. As far as respondents Nos. 2 and 3 are concerned, learned counsel for the petitioner as already mentioned, tried to prove them disobedient daughters and thus argued that they too are not entitled for any maintenance allowance, is concerned, it may be observed that mere age of majority itself is not sufficient to declare unmarried daughters disentitled to maintenance allowance if otherwise it is not proved with cogent and sufficient evidence that they were living apart from the father against his wishes and were not ready to obey his lawful and reasonable demands. Learned counsel for the petitioner has referred the statement of respondent No. 1 Mst. Ansar-un-Nisa whereby she during cross-examination stated that respondents Nos. 2 and 3 although were offered by the petitioner to get them married in his own family to which they refused. If the statement of respondent No. 1 is seen, she during cross-examination stated If this statement is seen it shows the bent of mind of the petitioner that he wanted to get arranged the marriage of the respondents Nos. 2 and 3 his daughters in his own family against their wishes. Had there been any proper offer according to the wishes of respondents Nos. 2 and 3 made by the petitioner and refused by them in that eventuality one can infer otherwise but in these circumstances perhaps on one side petitioner is forcing his wife respondent No. 1 to live in Azad Kashmir in his native village while he himself is residing along with his second wife at Dubai, it seems the proposals perhaps due to unknown reasons which have not been brought on record were refused by the respondents Nos. 2 and 3 for some cogent reasons. The judgments cited by learned counsel for the petitioner are not applicable in the present facts and circumstances of the case. The judgment cited Mst. GHULAM FATIMA v. Sheikh MUHAMMAD BASHIR (PLD 1958 (W.P) Lahore 596) whereby a learned single bench of this court observed that father was not bound to pay the past maintenance of a minor who was being maintained by a third person without his consent but that circumstance does not exist in the present controversy. Here in this case minors/respondents Nos. 2 and 3 are residing with their mother in such a circumstance when they were sent by the petitioner himself to live along with her in Pakistan. As far as judgment cited as RASIIID AHMED v. ADDITIONAL DISTRICT JUDGE LAHORE and 4 others (2011 YLR 1632) is concerned, with utmost respect the rational behind the judgment is not applicable to each and every case. Firstly, in the said case the daughters/minors were living apart from the father of their own in "Dastak" a charitable institution, and they were not agreeing with the father and secondly the principle settled in that judgment that every daughter who has attained the age of majority automatically disentitles for the maintenance allowance to be paid by the father is not a principle of general application in view of Islamic law as referred in Paragraph 370 of the Muhammadan Law by D.F. Mulla. As far as, the quantum of the maintenance allowance is concerned, the petitioner although has brought on record that he vide Exh.D3/pay slip was earning 2000 Dirham per month but if his own statement as DW-1 whereby he admitted him as owner of property worth crores of rupees in Pakistan itself shows his financial status and in view of the facts and circumstances of the present case and the status enjoyed by the respondents being daughters of the present petitioner rate of maintenance allowance fixed by the learned trial court as well as appellate court in respect of respondents is not in excessive and does not call for any interference by this Court.

9. For what has been discussed above, there is no merit in this writ petition, same is hereby dismissed. M.H./M-68/L Petition dismissed.