2009 PLP 736 (MLD)

ALI AKBAR QURESHI, J.

This order shall dispose of this petition as well' as the connected Writ Petitions bearing No.11848 and 11849 of 2008, as common question of law and facts are involved in all these three writ petitions.

2. This constitutional petition is directed against a consolidated judgment dated 29-7-2008 passed by the learned appellate Court by which the following relief was given:-- (a) Mst. Shazia Kausar wife is held entitled for recovery of maintenance allowance from her husband at the rate of Rs.5000 per month w.e.f. December. 2005 uptil completion of iddat period, it' divorced. (b) The minors Sohaib Bashir and Shoaib Bashir are held entitled to recover maintenance allowance from their father at the rate Of Rs.5000 per month per head w.e.f. December, 2005 till the attaining the age of majority with 10% increase annually. (c) The petition for custody (Hazanat) of the minors filed by Bashir Ahmad is dismissed by accepting the appeal of Shazia Kausar mother. Obviously appeal filed by Bashir Ahmad is dismissed.

3. The synopsis of the fact of the instant constitutional petition is, that the respondent was married with the petitioner in the year, 1996 and out of their wedlock, two minors were born. The respondent after the marriage joined the petitioner in Kuwait who was serving over there and minors were also born in Kuwait. The petitioner as alleged by the respondent, without her consent, contracted second marriage and because of this, their relations became strained and the respondent was deported and sent to Pakistan by the petitioner. While living in Pakistan, as alleged by the respondent, the petitioner did not maintain the respondent rather sent notice of divorce to the respondent. The respondent for the recovery of maintenance allowance filed a suit wherein it was claimed that the petitioner is in a position to pay the maintenance allowance to the respondents @ Rs.5000 per month. The suit was vehemently contested by the petitioner by taking the plea that the respondent came to Pakistan with her own consent but did not come back; the respondent has misappropriated a huge amount of the petitioner; the respondent also purchased a house with the amount of the petitioner and disposed it out, although her status was that of "Bai'Nami" and the respondent/wife is not entitle for any maintenance and the quantum of maintenance allowance of the minor is not only excessive but exorbitant and the petitioner is unable to pay the same. The petitioner also filed a petition for custody of the minor sons on the ground that respondent No.1 is a woman of ill-repute and the welfare of the minors lies with the petitioner. The said petition was contested by respondent No.1 by controverting the stance taken by the petitioner. The learned Judge Family Court framed as many as 12 consolidated issues and put the case for evidence of the parties.

4. The learned trial Court after recording the evidence and provided an opportunity of hearing, finally disposed of the suit in the following terms:-- (a) The application filed by the husband Bashir Ahmad for custody of minors was accepted and the wife was ordered to hand over minors Sohaib Bashir and Shoaib Bashir immediately to him. (b) Wife Shazia Kausar was held entitled to get maintenance allowance from husband w.e.f. May, 2006 till expiry of the Iddat period at the rate of Rs.2000 per month (Talaq became effected on 24-6-2006). (c) Mniors Sohaib Bashir and Shoaib Bashir were held entitled to recover maintenance allowance at the rate of Rs.1500 per month from May, 2006 till the date of pronouncing of judgment. (d) Remaining all the claims of the plaintiffs were declined.

5. Respondent No.1 being dissatisfied with the judgment and decree, preferred two appeals whereas the petitioner also filed appeal being aggrieved of the maintenance awarded to the respondents. The learned appellate Court consolidated the appeals, heard the arguments of the parties and finally passed a decree in the following manner:

(e) Mst. Shazia Kausar wife is held entitled for recovery of maintenance allowance from her husband at the rate of Rs.5000 per month w.e.f. December, 2005 uptil completion of Iddat period, if divorced. (f) The minors Sohaib Bashir and Shoaib Bashir are held entitled to recover maintenance allowance from their father at the rate of Rs.5000 per month per head w.e.f. December, 2005 till the attaining the age of majority with 10% increase annually. (g) The petition for custody (Hazanat) of the minors filed by Bashir Ahmad is dismissed by accepting the appeal of Shazia Kausar mother. (h) Obviously appeal filed by Bashir Ahmad is dismissed.

6. Learned counsel for the petitioner at the very outset contended that the judgment and decree passed by the learned appellate Court is not sustainable on the ground that the learned appellate Court without requisitioning/ summoning the record has decided the appeal which is against the provisions of Code of Civil Procedure and also the law laid down for the said purpose. Next contended, that the learned appellate Court being the first Court of appeal was legally obliged to summon the record and decide the appeal because of the reason that while deciding the appeal, the appellate Court should have again examined and perused the whole 'material available on the file. Also argued, that the maintenance allowance fixed by the appellate Court is not in conformity with the earning being earned by the petitioner and further the respondent No.1 was not entitled as held by the learned trial Court for the maintenance claimed by her.

7. Conversely, the learned counsel for the respondent while replying the objection raised by the learned counsel for the petitioner regarding the summoning of the record by the appellate Court, submitted that as the complete record was annexed with the appeal, therefore, the learned appellate Court did not summon the record. Learned counsel vehemently supported the findings recorded by the learned appellate Court and submitted that the petitioner who is earning a lot while serving in abroad is in a position to pay the maintenance allowance as awarded by the learned appellate Court. It was also contended by the, learned counsel that the learned appellate Court has rightly ruled that the respondent No.1/wife in the special circumstances of the case is entitled to provide the maintenance from the day, she came to Pakistan.

8. I have heard the learned counsel for the parties and perused the record.

9. It is appropriate firstly to dispose of the objection raised by the learned counsel for the petitioner regarding non-summoning of the record by the learned appellate Court at the time of deciding the appeal and resultantly, the same is violative of the provisions of Code of Civil Procedure. The learned counsel when asked, that as to whether any objection in writing was raised before the learned appellate Court at the time of arguing the appeal, the learned counsel frankly conceded that no such objection in written form was raised. As regard, the record of the learned trial Court with the appeal; the learned counsel could not deny this fact but reiterated his argument; that even if the record was annexed with the appeal, the learned appellate Court was under legal obligation to summon the record to decide the appeal. The contention raised by the learned counsel for the petitioner is devoid of any force because of the reason that it has consistently been ruled that the provisions of Code of Civil Procedure are not applicable in the proceedings of family cases. The Hon'ble Supreme Court of Pakistan in a recent judgment Hameed Ahmad v. Ghulab Khan (2006 SCMR 895) has observed, that the provisions of Civil Procedure Code are not applicable to the family cases. Even otherwise, the petitioner could not raise this objection first time in the constitutional petition particularly when no such objection was raised at the relevant time, therefore, the petitioner is precluded and debarred by law and also by his conduct to raise this objection at this stage.

10. As regard, the merits of the case, the learned appellate Court while deciding the appeal again reappraised, re-appreciated and re-examined whole the material including the evidence adduced by the parties and reached to the conclusion that respondent No.1/wife is entitled for the maintenance allowance @ Rs.5000 per month w.e.f. December, 2005 till the completion of Iddat period, if divorced. As regard, the awarding of past maintenance, I am guided and fortified by the principle laid down by this Court in the judgment reported as Muhammad Aslam v. Mst. Zainab Bibi and others 1990 CLC 934 wherein it was held that the Family Court is empowered to grant past maintenance even for the period upto six years to the wife. In this case, as observed by the learned appellate Court, the respondent No.1 was forced to leave Kuwait and thereafter the petitioner did not make any effort to rehabilitate the respondent along with the minors, therefore, it, can safely be held that the respondent No.1/wife did not refuse to perform her matrimonial part with the petitioner so it was rightly held by the learned appellate Court that the respondent is entitled to receive the past maintenance.

11. As regard, the maintenance of the minors, the petitioner being father/natural guardian of the minor is bound by all canon of law to maintain the minors irrespective of the fact where they are living and the appellate Court after careful scanning of the record finally reached to the conclusion that the petitioner who is a man of means, can easily pay the maintenance allowance to the minors @ Rs.5000 per month, therefore, the findings recorded by the learned appellate Court to this effect are maintained.

12. As regard, the custody. of the minor, the petitioner who has admittedly contracted the second marriage living in abroad whereas the respondent/wife has still not contracted the marriage and the minors, as observed by the learned appellate Court, are getting education in good institution and are also being- looked after carefully, therefore, for the time being, it was rightly concluded by the appellate Court, that the welfare of the minors lies in the custody of the respondent.

13. Even otherwise, the petitioner could not brought anything on the record to rebut the claims and contentions of the respondent, therefore, the judgment, impugned herein does not suffers from any misreading of evidence or non-consideration of any material.

14. Resultantly, this petition has no force and is dismissed while maintaining the judgment and decree passed by the learned appellate Court. No order as costs. M.H./B-6/L Petition dismissed.