2004 PLP 583 (YLR)

With the concurrence of the learned counsel for the parties it is being treated as an admitted case.

2. Facts necessary for its disposal are that a suit for maintenance was filed by Mst. Saeed Mai (respondent No. 2) alongwith her two minor children alleging that she was married to Muhammad Talib (petitioner in 1991); out of the wedlock Amna Bibi and Muhammad Arshad (minors) were born; about one year prior to the institution of the suit, while she was pregnant, the petitioner had deserted her whereupon she came to her parents and is residing there. Amna Bibi (minor) was born in the house of her parents and that the petitioner had neglected and failed to maintain them for the last one year despite the fact that his income is not less than Rs.10,000 per month. Maintenance allowance at the rate of Rs.1,000 per month was claimed by each.

3. The suit was contested by the petitioner on the grounds that with the mutual consent of the parties, marriage tie was severed through Talaq on 2-2-1999 in a Panchayiat wherein it was agreed that the daughter would remain in the custody of the mother and the boy would live with the father (petitioner); in pursuance of the said agreement the minor Muhammad Arshad is living with him hence suit to the extent of the said son as well as respondent No.2 is not maintainable. It was denied that his income was Rs.10,000 per month and was asserted that he was working as a labourer in a brick kiln.

4. Trial Court framed issues, evidence of the respondents (plaintiffs) was recorded and the case was adjourned for evidence of the petitioner (defendant) for 12-4-2000. On the said date petitioner's evidence was not present and on the request of his counsel the case 'was posted to 29-4-2000. On the said date neither the petitioner nor his counsel was present, therefore, he was proceeded against ex parte and vide judgment dated 3-5-2000, maintenance was granted to all respondents (plaintiffs) at the rate of Rs.500 per month each from the date of institution of the suit.

5. Petitioner's appeal against the aforesaid judgment/decree was dismissed by Additional District Judge, Mailsi on 24-10-2002 on the ground that it was not maintainable.

6. The aforesaid judgments/decrees of the two Courts below are called in question in this Constitutional petition.

7. It is urged by the learned counsel for the petitioner that on account of misunderstanding of the date the petitioner and his counsel did not appear before the learned trial Court on 29-4-2000 when he was proceeded against ex parte; that jointly the decree was for Rs.1,500 per month hence being more than Rs.500 per month it was appealable and the appeal was competent and maintainable; that during cross-examination respondent No.2 Mst. Saeed Mai admitted that minor son Arshad is living with the petitioner for the last three years and she did not specifically deny the suggestion that she was divorced by the petitioner but the aforesaid material piece of evidence was completely overlooked by the Family Court.

8. Writ petition is opposed by learned counsel for the respondents.

9. Arguments heard. Writ petition and the annexures appended therewith perused.

10. The suit was decreed by the Family Court on 3-5-2000 when under section 14(2)(c) of the Family Courts Act it was provided that no appeal shall lie from a decree passed by a Family Court for maintenance of Rs.500 or less per month. In this case the Family Court had separately granted maintenance allowance to each of the plaintiffs at the rate of Rs.500 per month, their claim was not jointly decreed hence the amount of maintenance granted to each of the respondents in a suit for maintenance jointly filed by them cannot be clubbed together. Appeal against decree for maintenance of Rs.500 per plaintiff per month did not lie and was, therefore, rightly dismissed by the learned Appellate Court as it was not maintainable.

11. In the written statement the writ petitioner (defendant) had specifically alleged that in pursuance of a mutual compromise he had divorced Mst. Saeed Mai and custody of minor son was given to him. During cross-examination Mst. Saeed Mai did not specifically deny that she was divorced by the petitioner and had admitted that the minor son is living with the petitioner for the last three years. The aforesaid material piece of evidence was clearly overlooked by the Family Court and maintenance allowance was granted by it to all the plaintiffs including the said minor son who was admittedly in the custody or the writ petitioner and was being maintained by him. The impugned judgment passed by the Family Court is, therefore based not only on non-reading of material evidence but also under erroneous assumption of fact that the minor son is in custody of Mst. Saeed Mai. It is, therefore declared to have been passed without lawful authority and is of no legal effect.

12. The suit for maintenance would be deemed to be pending before the learned Family Court and shall be disposed of in accordance with law within a shortest possible, time. In order to effectively resolve the controversy, the writ petitioner (defendant) shall be granted one opportunity to produce his evidence.

13. Learned counsel for the respondents has urged that since a father is bound to maintain his children and it is not disputed that minor daughter is in custody of the mother, hence, till the disposal of the family suit, the petitioner be directed to pay interim maintenance to the minor daughter. The said prayer may be made before the Family Court which is competent to grant interim maintenance during the pendency of the suit.

14. Writ petition accepted. H.B.T./M-2230/L Petition accepted.