2010 PLP 2061 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this writ petition, the petitioner has assailed the judgment and decree dated 17-7-2004 passed by learned Judge Family Court Lahore.

2. Briefly stated the facts are that Mst. Musarat Bano herself and on behalf of minor daughter Noor-ul-Ain filed a suit for recovery of her and minor's maintenance. She claimed that marriage between the parties was solemnized on 23-4-1996 and dower amount was fixed Rs.4,00,

000. It was also settled that the petitioner/ defendant will pay Rs.1500 per month as pocket money to his wife. Out of the wedlock one daughter namely Noor-ul-Ain was born. Two years prior to the institution of the suit both the plaintiffs were turned out from the house by the petitioner/defendant. It is also averred that the marriage of the petitioner/defendant with the plaintiff No.1/ respondent No.2 was his 3rd marriage. She claims that the petitioner/defendant failed to provide maintenance to her since the year 1999.

3. The defendant filed written statement and the learned trial Court framed the following issues:-- "ISSUES.

1. Whether the plaintiffs are entitled for the recovery of maintenance allowance, if so for what period and at what rate? OPP

2. Relief."

4. The learned trial Court fixed the interim maintenance of minor as Rs.1500 per month and salary of the petitioner/ defendant was attached. The respondent No.2 concluded her evidence but the petitioner/defendant failed to produce any evidence in spite of numerous opportunities were given to him and finally on 5-6-2004 he was proceeded ex parte. The learned trial Court on 17-4-2004 passed ex parte judgment and decree against the petitioner holding that respondent No.2/plainitff No.1 is entitled to recover Rs.1500 per month with 10% annual increase as maintenance from the date of institution of the suit or `Iddat' period in case of divorce. Decree for payment of maintenance at the rate of Rs.1500 was passed in favour of minor with 10% annual increase from the date of institution of the suit till her marriage.

5. The decree was not assailed by the petitioner/defendant and as such the decree attained finality.

6. Through the present Writ Petition, the legality of decree has been challenged.

7. Learned counsel for the petitioner submits that while passing ex parte decree the learned trial Court has committed illegalities and irregularities which are apparent on the face of decree. He further submits that it is a principle of natural justice that no one should be condemned unheard. When the learned counsel for the petitioner was asked why he has not filed an appeal against the judgment and decree as provided under law, he submits that this Court in Constitutional jurisdiction can examine the illegality of decree passed by the Family Court, even if the appeal was not filed against decree. Learned counsel for the petitioner filed a photocopy of divorce deed. The date of execution of this document is not mentioned on it. However, the stamp paper is shown to be purchased on 5-4-2002.

8. Learned counsel for the respondents submits that the petitioner has not assailed the judgment and decree and as such the same attained finality and writ petition is not maintainable. He further submits that photocopy of divorce deed is a fraudulent document. The petitioner filed the written statement on 14-11-2001 and in preliminary objection No.2 he states that he has divorced the respondent No.2 at her own request and desire on the basis of Khula in presence of notable elderly persons etc. and as such she is not entitled to payment of maintenance. Learned counsel for the respondents further points out that the document of alleged divorce deed was allegedly prepared on 5-4-2002. The said document is nowhere produced, nor sent to the Union Council for issuance of certificate of `Talaq'. He submits that it is a fake and forged document and the petitioner has manoeuvred this document only to avoid payment of decretal amount. Learned counsel further submits that till the issuance of certificate of Talaq, the petitioner is bound to pay the maintenance of respondent No.2 in terms of decree. When this fact was confronted to the learned counsel for the petitioner that the petitioner is claiming in November, 2001 that he has divorced respondent No.2 but the divorce deed relied upon is allegedly executed on 5-4-2002. The learned counsel submits that in fact the petitioner has announced Talaq orally before the witnesses in October, 2001 and subsequently reduced it into writing. He further submits that an oral `Talaq' can be pronounced and there is no bar on the right of husband to divorce the wife and non-issuance of certificate may be irregularity but is not an illegality, the `Talaq' has been effected. However, he admits that the certificate of `Talaq' has not been issued. As this is a question of fact and will avoid to give any finding on this issue, the petitioner may agitate this issue before the executing Court if so advised.

9. The above facts show that petitioner is only gaining time to avoid the payment of decree, which has become final. In writ jurisdiction this Court cannot interfere in a decree passed by competent jurisdiction unless any jurisdictional defect is shown. The petitioner has failed to pin point any illegality in the impugned E judgment and decree. The petition fails and dismissed. S.A.K./S-100/L Petition dismissed.