1999 PLP 305 (CLC)

The petitioner had filed his written statement denying various allegations made against him and his family in the plaint of the suit and the quantum of his salary and his liability to pay to the respondents the amounts claimed by way of maintenance. On the pleadings of the parties the learned trial Court framed the following issues:‑‑ (a) Whether the plaintiffs are entitled for the recovery of the maintenance allowance; if so then at what rate and for what period? (b) What should the decree be? After holding the pre‑trial proceedings the learned trial Court proceeded to record evidence of the respective parties in the matter. The respondent No.1 examined herself and her brother Muhammad Hanif as P.W.1 and P.W.2, respectively and produced documents and closed her side. In rebuttal the petitioner examined himself as D.W.1 and his brother, namely Mehmood Tariq, as D.W.2 and closed his side. The learned trial Court after hearing the arguments of the Advocates of the parties decreed the suit partly in favour of respondent No.l and fully in favour of respondent No.2 with no order as to costs. According to the said judgment the respondent No.l was awarded maintenance of Rs.6,000 per month for her Iddat period only and maintenance of Rs.4,000 per month was allowed to the respondent No.2 with effect from 16‑2‑1994 till such time that the minor respondent rejoins the petitioner or attains the majority age. Being aggrieved by the judgment, dated 22‑7‑1997 passed by the learned trial Court the petitioner filed Family Appeal No.48 of 1997 which came up for hearing before the learned 2nd Additional District Judge, Central Karachi who vide impugned judgment, dated 31‑3‑1998 maintained judgment and decree of the learned trial Court to the extent of payment of maintenance amount of Rs.6,000 per month to the respondent No.l during her Iddat period. In respect of respondent No.2 (minor son of petitioner) Trial Court's judgment was not only maintained but it has been further ordered that with effect from 1‑4‑1998 there shall be annual increase of 10% in the maintenance amount of Rs.4,000 per month awarded to the respondent No.2 until he reaches the age of majority. Thus, with the said modification in the judgment of the learned trial Court the learned lower appellate Court disposed the appeal of the petitioner. The impugned judgments have been assailed by the learned Advocate of petitioner in general on all the points but in particular on the point that petitioner's application, dated 31‑3‑1998 under Order 41, Rule 27 read with section 151, C.P.C. seeking permission for placing on record two original documents pertaining to service and salary of the petitioner for the period from 28‑9‑1995 to 13‑1‑1996 and 7‑10‑1996 to 31‑3‑1997 were submitted by way of additional evidence for consideration but the learned lower appellate Court has ignored the same and has passed the impugned judgment on conjectures and surmises. It has been urged on behalf of petitioner that in the circumstances of the case the impugned judgments and decrees merit to be quashed/set aside and the case be remanded to the learned trial Court for writing fresh judgment and decree after recording additional evidence of the petitioner in the proceedings of Family Suit No.2 of 1995. During the course of his submissions the learned Advocate for petitioner frankly stated ‑that though the learned trial Court had passed the impugned judgment and decree on 22‑7‑1997 yet no attempt was made to place petitioner's documents, dated 13‑1‑1996 and 31‑3‑1997 before the learned trial Court by way of additional evidence and it was during the appeal proceedings of petitioner's Appeal No.48 of 1997 that an application, dated 31‑3‑1998 was submitted under Order 41, Rule 27, C.P.C. read with section 151, C.P.C. praying therein that the said two documents be considered as additional evidence in the matter which two documents, learned lower Appellate Court was pleased to keep on record but did not consider the same. The learned Advocate for respondents Nos. l and 2 has argued that neither the notice of petitioner's aforesaid application under Order

41. Rule 27, C.P.C. read with section 151, C.P.C. was issued nor it was served upon the respondents. He has further submitted that since the two documents referred to in the said application bear the dates of 13‑1‑1996 and 31‑3‑1997 but no attempt was made to place the same before the learned trial Court who passed the judgment in the matter on 22‑7‑1997. The other contention of the learned Advocate for respondents Nos.l and 2 is that section 17 of the West Pakistan Family Courts Act, 1964 (hereinafter referred to as the Act of 1964), provides that "Save as otherwise expressly provided by under this Act, the provisions of Evidence Act, 1872 and the Code of Civil Procedure, 1908, except sections 10 and 11 shall, not apply to the proceedings before any Family Court", therefore, petitioner's application under Order 41, Rule 27, read with section 151, C.P.C. was not maintainable. The other submission of the learned Advocate for respondents Nos.l and 2 is that as per section 9(2) of Act. 1964 the petitioner should have produced all his documents alongwith his written statement. He has further submitted that alongwith his written statement the list of witnesses and precise of evidence of such witnesses should have been filed and supplied to the respondents, as is required to be done in terms of section 9(1) of Act, 1964. The learned Advocate for respondents has also urged that during the trial of the Family Suit the petitioner failed to apply for summoning his witnesses within three days of the framing of issues as is required to be done under the provisions of section 11(2) of Act, 1964. He also submitted that no such application for summoning the person who had issued the aforesaid documents, dated 13‑1‑1996 and 31‑3‑1997 was ever filed in Court to prove the said two documents. I am of the opinion that non‑compliance of the aforesaid provisions of the Family Courts Act, 1964 is fatal to the case of the petitioner who should have taken care to submit in the matter the documents and summary of evidence of his witnesses alongwith his written statement and further that he should have applied for summoning his witnesses within the permissible time. I am also of the opinion that petitioner's application under Order 41, Rule 27 read with section 151, C.P.C. submitted before the learned lower appellate Court, was not only a belated application but was also in derogation of the provisions of section 17 of the Family Courts Act, 1964 and as such the learned lower appellate Court rightly ignored the same. The learned Advocate of respondents Nos. l and 2 has also drawn my attention to the examination‑in‑chief and cross‑examination of respondent No. l recorded by the learned trial Court where the respondent No. l categorically stated that the salary of the petitioner is one thousand two hundred U.S. Dollars (U.S.$ 1200) per month but during her cross‑examination no question was put to her to negate that salary of petitioner was not 1200 U.S. Dollars per month. During his cross‑examination the petitioner had stated that he has signed some contracts with his employee, Messrs M. International, which evidences his income. On such statement of the petitioner he was directed by the learned trial Court to produce the said contract/service record on the next date of hearing, but the petitioner failed to comply with the said Court direction. On Court question, if the petitioner, eversince the filing of the maintenance suit, has paid any maintenance amount to his minor son, the respondent No.2 or after having divorced the respondent No.2 whether he paid any amount to her for maintenance during her Iddat period the answer was in negative. . I have heard the arguments of the learned Advocates of the parties and carefully perused the record and have come to the conclusion that keeping in view the principles of Muhammadan Law a father is bound to maintain his minor children till such time that either they attain the age of majority in the case of mate children and till the time marriage of female children is solemnized and also that the maintenance during Iddat of divorced wife is to be paid by the ex‑husband. In this case admittedly after the commencement of the litigation no maintenance has ever been paid to the minor, respondent No.2, and no expenses for Iddat have been paid to the respondent No. l by the petitioner. It is also clear from the record that the claim of the respondent No. l that at the relevant time the salary of petitioner was 1200 U.S. Dollars per month which fact has not been rebutted by the petitioner by cogent evidence. Looking to the inflationary trends and the devaluation of rupee I am of the opinion that the learned lower appellate Court has passed a legal and proper judgment directing the petitioner to pay to respondent No. l maintenance amount of Rs.6,000 per month during her Iddat period and subsistence/maintenance allowance of Rs.4,000 per month to respondent No.2 from 16‑2‑1994 till he rejoins the petitioner or attains the age of majority with modification that due to inflationary trends and devaluation of rupee the petitioner with effect from 1‑4‑1998 is bound and the respondent No.2 is entitled to annual increase of 10% in the maintenance amount of Rs.4,000 per month. For the above I hereby uphold the judgment, dated 31‑3‑1998 passed by the learned IInd Additional District Judge, Central, Karachi in the proceedings of Family Appeal No.48 of 1997 Mansoor Tariq Khan v. Mst. Nafis Mansoor and another and dismiss this petition with no order as to costs. The above are the reasons for my short order, dated 3‑8‑1998 H.B.T./M‑366/K Petition dismissed