P L D 2011 Lahore 242 (PLP)

SH. AHMAD FAROOQ, J.

Through the instant constitutional petition, the petitioner has called in question the judgment and decree dated 29-7-2006, whereby the learned Additional District Judge, Samundri, while deciding the appeal filed by respondents Nos.1 to 3, against the judgment and decree dated 15-2-2006, passed by the learned Judge Family Court, Samundri, enhanced the rate of monthly maintenance allowance of respondents Nos.2 and 3 from Rs.1000 to Rs.1500 each.

2. The necessary facts for proper adjudication of the lis in hand are that the present petitioner/Amanat Ali was married to respondent No.1, on 4-12-1987 and out of their wedlock, two children, namely, Sonia alias Naila Akhter, (daughter) and Muhammad Naveed Ali (son) were born. On account .of estranged relations, the matrimony ended into divorce. Respondents No.1 filed two separate suits; one for the recovery of maintenance allowance for herself and for the minor children; and the other, for recovery of dowry articles, before the Judge Family Court at Samundri. Both the suits were consolidated, in which issues were framed and evidence recorded from both sides. The trial culminated into a decree, declaring respondents Nos.2 and 3 entitled to maintenance allowance @ Rs.1,000 per month each, from the date of institution of the suit till their legal entitlement. Respondent No.1 was also granted a decree for the return of the dowry articles or their value, to the tune of Rs.35,

000. Being dissatisfied with the judgment and decree of the learned Judge, Family Court, Samundri, qua the rate of maintenance allowance, and value of the dowry articles, respondents Nos.1 to 3 preferred an appeal, which, as aforementioned has been decided in their favour, and rate of maintenance allowance has been enhanced, while the matter regarding dowry articles also stood settled between the parties, prior to the passing of the impugned judgment. Aggrieved by the enhancement of the rate of maintenance allowance; to respondents Nos.2 and 3, the petitioner has filed the instant petition.

3. The learned counsel for the petitioner while raising a serious objection .to the maintainability of the appeal before the Additional District Judge contended that the impugned judgment is the result of wrongful exercise of jurisdiction, as a clear bar is provided against a decree of maintenance of Rs.1000 or less than Rs.1000, in section 14(2)(c) of the West Pakistan Family_ Courts Act, 1964. As to the merits of the case, the learned counsel contended that the learned appellate Court while enhancing the rate of maintenance allowance has not taken into consideration the evidence available on the record, and merely proceeded on presumptions to determine the rate of maintenance allowance. The learned counsel next contended that the plaintiffs had failed to prove the source of income of the present petitioner but the learned ADJ decreed the enhanced rate of maintenance allowance, which does not commensurate with the income of the present petitioner. The learned counsel finally, argued that the impugned judgment and decree may be set aside.

4. The learned counsel for the respondents has resisted the instant 'petition by arguing that the appeal of the respondents was maintainable before the Additional District Judge and the bar contained in section 14(2)(c) of the West Pakistan Family Courts Act, 1964 was not applicable in the case of filing appeal by the decree-holder for enhancement of the rate of maintenance. The learned counsel contended that the bar contained in section 14(2)(c) of the West Pakistan Family Courts Act, 1964 stands in the way of a judgment-debtor as right of appeal is not available against a decree of maintenance of Rs.1000 or less. The learned counsel has relied upon the case of 'Muhammad Latif Kashif v. Judge Family Court/Civil Judge, 1st Class, Bahawalpur and 3 others (PLD 2005 Lahore 296). As to the merits of the case the learned counsel contended that the learned trial Court has rightly relied upon the admission made by D. W.1/ father of the petitioner that the petitioner gave one plot and 10 'tola' gold ornaments at the time of his' second marriage. He concluded his arguments by contending that the enhanced rate of maintenance i.e. Rs.1500 per month to each of the minor children was justified in view of high cost of living and the children being of school going age.

5. Arguments heard. Record perused.

6. The learned Judge Family Court, Samundri passed a decree of maintenance allowance @ Rs.1000 per month per child, the total of which becomes Rs.2000 per month. Though the remedy of appeal was available to the judgment debtor, but he did not opt to prefer any appeal. However, the decree-holders, who had claimed maintenance allowance @ Rs.2,000 per month each, exercised their right of appeal against the fixation of Rs.1000 per month each. The barring clause of section 14(2)(c) operates only against the filing of appeals when the decree for maintenance allowance has been passed for Rs.1000/- or less. An appeal challenging a decree of maintenance allowance @ Rs.1000 or less, with a prayer to set aside the same, completely disentitling the decree-holders, from the relief sought for in the suit, or modifying the decree by reducing the rate of maintenance allowance, is only preferred by the judgment-debtor. On the other hand an appeal, challenging the judgment and decree of maintenance allowance with a prayer to enhance the rate of maintenance allowance is filed by the decree-holder only. Barring clause of section 14(2)(c) of the Act ibid does not operate as such, in the matter of appeals praying for enhancement of rate of maintenance allowance, which, obviously, could not be filed by the judgment debtor. The proposition of law being discussed above herein has been dealt with and decided by this Court in the case of Muhammad Latif Kashif v. Judge Family Court/Civil Judge, 1st Class, Bahawalpur and 3 others (PLD 2005 Lahore 296). The argument of the learned counsel for the petitioner regarding maintainability of appeal before the Additional District Judge by the respondents is found to be misconceived and devoid of any legal force.

7. It has been the stand of the petitioner during the pendency of the suit that he is patient of hepatitis and jobless and has no source of income. However, in his written statement the petitioner admitted that he has contracted a second marriage. Strong financial position of the petitioner is proved from the fact that D.W.1/Muhammad Ismail, who is father of the petitioner, admitted in his cross-examination that at the time of second marriage, the petitioner has given one plot and 10 'tolas' of gold ornaments to his wife, which is written in the nikahnama' . Even otherwise, a father is legally bound to maintain his children, and the maintenance allowance of Rs.1500 per month for one child cannot be considered on higher side in view of escalating trend of inflation, especially when both the children are school going. The learned appellate Court has thus, rightly enhanced the rate of maintenance allowance and there being no ground for reversing the findings of the learned appellate Court, the impugned judgment and decree are upheld. Resultantly, the instant petition fails, and the same is accordingly, dismissed. A.R.K./A-45/L Petition dismissed.