2014 PLP 583 (MLD)

AFTAB AHMED GORAR, J.

Through this constitutional petition the petitioners have impugned the judgment dated 25-3-2011 passed by learned IVth Additional District Judge, Karachi Central in Family Appeal No.81 of 2010 whereby he maintained the judgment dated 10-3-2010 passed by IInd Civil and Family Judge, Karachi Central with certain modification. Brief facts of the case are that petitioner No.1 filed a suit for recovery of maintenance and gold jewellery stating therein that she was married with respondent No.1 on 28-2-2002 and from the said wedlock two children namely Maryam and Mustafa were born. She asserted that at the time of marriage her parents had given precious dowry articles including gold ornaments worth Rs.800,000 which are still lying with respondent No.1. She further stated that respondent No.1's attitude was cruel and besides physical beatings she was also being subjected to mental torture. He also did not properly maintain her and her children. Respondent No.1 was working in Habib Metropolitan Bank as Manager and his salary is Rs.40,000 per month. In the month of September, 2006 respondent purchased a flat and for this purpose he asked the petitioner to arrange Rs.6,00,000 from her parents accordingly, her parents paid Rs.5,50,000 to him but the respondent has not returned the said amount. She further stated that on 20-9-2008 petitioner No.3 was born when the respondent and her in-laws failed to give proper attention and medical facilities to her rather they extended threats of pronouncement of divorce and on 3-3-2008 the respondent pronounced divorce in writing, and also paid dower amount thereafter the respondent seized the jewellery of petitioners Nos.1 and 2 which are lying in the locker. Thereafter the respondent left the said flat while the petitioners are still residing in the flat. She claimed maintenance for herself at the rate of Rs.10,000 per month for Iddat period so also maintenance of the children at the rate of Rs.10,000 per month for each minor from 3-3-2008 till the age of their majority with 10% per annum. The respondent contested the matter and filed written statement in which he denied the allegations levelled by the petitioner and stated that she has no cause of action to file the suit. He denied that petitioner No.1 was given dowry articles worth Rs.8,00,000 however some dowry articles including, gold ornaments were given to petitioner No.1 by her parents at the time of marriage, whereas the jewellery of petitioner No.1 and the respondent are lying in the locker while most of the dowry articles are lying in the flat wherein petitioners are still residing. He further stated that he was compelled to leave the flat and his various costly items including wrist watches, clothing shoes car registration book original driving license and other documents worth Rs.2,50,000 are still lying at the flat which is still in possession of petitioner No.1. He denied that he ever demanded any amount from the parents of petitioner No.1 or that they paid Rs.5,50,000 to him for purchase of the flat. In fact he had purchased the said flat from his own funds. He asserted that petitioner herself had put her jewellery as well as that of the respondent in the locker and the key of the locker is always with her. He specifically denied that he is working as a Branch Manager and stated that since he suffered constant mental torture at the hands of petitioner No. 1 as such she is not entitled to any maintenance, however, he is ready and willing to pay reasonable monthly maintenance to both the children. On pleadings of the parties Family Court framed the issues and after hearing the parties partly decreed the suit vide Judgment dated 17-3-2010. The petitioners being not satisfied with the said judgment assailed the same in appeal and the appellate court maintained the judgment of the Family Court with certain modifications vide judgment 25-3-2011. The petitioners have challenged the judgment of the appellate court through instant petition. I have heard learned counsel for the parties and perused the material available on record. Learned counsel for the petitioners contended that both the courts below have not properly appreciated the evidence brought on record and the judgment and decree is outcome of misreading and non-reading of the evidence. He contended that the judgment of the appellate court is based on sentimental and extraneous considerations. According to him the courts below have not properly fixed the rate of maintenance of the children vis-a-vis the monthly earning of the respondent worth Rs.55,

000. According to him the educational expenses of the children are more than the maintenance awarded by the trial court. He prayed for modification in the judgment of the appellate court thereby enhancing the rate of maintenance and for return of gold ornaments to petitioner No.1. Conversely, learned counsel for respondent No. 1 contended that although the abovesaid flat was purchased by the respondent from his own funds despite that since the date of divorce the petitioners are residing in the said flat. He further contended that the respondent has deposited Rs.9,000 allowed by the trial court as maintenance of petitioner No.1 during her Iddat period which was withdrawn by her. He in compliance of the impugned judgment has also deposited Rs.43,000 being maintenance of petitioners Nos.2 and 3 which amount has also been withdrawn by petitioner No.1 therefore, the petition merits dismissal. According to him even otherwise the petition is not maintainable against the concurrent findings. He relied upon the case-law reported in PLD 2011 Islamabad 14, 2011 MLD Lahore 799, 2011 SCMR 1073, 2009 CLC Lahore 563 and 1999 CLC Karachi

305. Admittedly, after pronouncement of divorce petitioner No.1 is residing in the flat where she was living with respondent No.1 before divorce, therefore, her allegation that she was droved out stands unproved. In this view of the matter trial court rightly allowed Rs.9000 as maintenance during Iddat period which too were withdrawn by her. So far as the maintenance of the children is concerned, the respondent in his evidence deposed that his gross salary is Rs.55,000 out of which Rs.24,000 are deducted. In support he produced certificate. Petitioner could not succeed in rebutting such assertion. It is also to be noted that respondent No.1 himself agreed that he is ready and willing to pay reasonable monthly maintenance to the children. Although the trial court had allowed the monthly maintenance of the children at the rate of Rs.5,000 each, but the appellate court has enhanced the same to Rs.7,

000. After deducting Rs.24,000 from the salary of Rs.55,000 alleged received by respondent No.1 the balance of Rs.31,000 will remain with him and out of this amount if he will pay Rs.14,000 being maintenance of both the children, he will have only a balance of Rs.17,000 per month for all his needs. In this view of the matter, I am of the opinion that the rate of maintenance as fixed by the appellate court does not require an interference. So far as the joint jewellery of petitioner No. 1 and respondent No.1 lying in the locker is concerned the order passed by the appellate court is just and proper. Accordingly, the Nazir of the appellate court is directed to open the locker in presence of both the parties as well as the Manager of the concerned branch and hand over the jewellery to petitioner No.1 which belong to the petitioners and hand over the jewellery, to respondent No.1 which belong to him on showing proper receipts under intimation of the trial court. However, if any dispute arises regarding the ownership of any jewellery, the Nazir will refer the matter to the trial court which shall pass proper order and settle the dispute. Even otherwise there is weight in the argument of the learned counsel for the respondent that concurrent findings of two courts below cannot be interfered in exercise of the constitutional jurisdiction of this court. In the case of Mst. Farhat Jabeen reported in 2011 SCMR 1073 honourable Supreme Court held:-- " ..because interference in the findings of facts concurrently arrived at by the courts should not be lightly made merely for the reasons that another conclusion shall be possible drawn

On the reappraisal of the evidence rather interference is restricted to the case of misreading and non-reading of material evidence which has bearing on the fate of the case." Similar view was taken in other cases relied upon by the learned counsel for the respondent. In the foregoing circumstances, the petition stands dismissed with above observations. AG/23/Sindh Petition dismissed.