Find a Lawyer

Writ Petition No. 454 of 1983/BWP. decided on 20th November, 1984

---Art. 9--West Pakistan Family Courts Act (XXXV of 1964), Ss. 5 & 14--Constitutional jurisdiction--Appellate Court disposing of two independent appeals, one by husband and other by wife regarding maintenance of children and wife respectively through separate judgments--Husband challenging these judgments through a single writ petition and placing on record only one judgment of appellate Court passed in appeal filed by wife--Constitutional relief, held, being extra-ordinary and discretionary one, writ petition to extent of order of which no copy was placed on record, liable to be rejected on that score alone.

---Ss. 5 & 14--Provisional Constitution Order (1 of 1981), Art. 9--Maintenance--Decree of maintenance passed in favour of minor children and wife by lower Courts--Father of minor children is under an obligation to maintain them--Wife not shown to be living separately from husband, without any factual or legal justification--Both lower Courts applying their conscious mind to evidence on record and giving sound and cogent reasons in support of their decisions--No misreading of evidence by appellate Court found--Lower Court not flouting relevant provision of law and giving decision in accordance with case-law laid down by superior Courts--Held, no case for interference, in exercise of constitutional jurisdiction, was made out.

---Ss. 5 & 14--Provisional Constitution Order (1 of 1981), Art. 9--Maintenance--Decree of maintenance of children passed by lower Courts--One of children attaining puberty afterwards--Objection that father not legally bound to maintain child who has attained puberty--Held, such objection might be raised before executing Court and not in constitutional petition. Mian Allah Nawaz for Petitioner. Hakim Ali for Respondents. Date of hearing: 20th November, 1984.

Through this constitutional petition, Ghulam Sarwar wants this Court to declare the judgments and decrees, dated 10-9-1983 and 21-6-1983 passed by the District Judge, Bahawalpur respondent No. 1 and Judge Family Court, Ahmadpur East respondent No. 2 to be without lawful authority and of no legal effect. 2. The facts leading up to this petition are that Ghulam Sarwar petitioner married to Mst. Akhtar-un-Nisa respondent No. 3 in the year 1962. He was blessed with son namely Muhammad Jamsheed Pasha respondent No. 4 and Mst. Shazia Sarwar (daughter) respondent No. 5 (both minors). The relations between the spouses became strained. On 20-12-1978 Mst. Akhtar-un-Nisa respondent No. 3 the wife and the minor children namely Muhammad Jamsheed Pasha (son) and Mst. Shazia (daughter) through their mother as next friend filed suit for their maintenance against Ghulam Sarwar petitioner. The suit was contested whereon the following issues were framed:--

(1) "Whether the plaintiffs are entitled to maintenance if so for what period and what is th,e quantum of maintenance

(2) Relief." 3. The parties produced their evidence. On the conclusion of the hearing, the trial Court dismissed the suit to the extent of wife respondent No. 3 and decreed maintenance of minor children respondents Nos. 4 and.5 to the tune of Rs.100 each from the date of the institution of suit, i.e. 20-12-1978 upto the date of decision i.e. 21-6-1983. The trial Court also directed the petitioner-father to continue paying at the same rate till the minors attain majority. Feeling aggrieved the petitioner filed appeal. The wife respondent No. 3 also filed appeal which were disposed of by the learned District Judge through separate judgments and decrees. The appeal of the wife was accepted and petitioner/husband was directed to pay Rs.200 p.m. to her as maintenance allowance from 23-12-1978 upto 10-1-1981 and the appeal filed by the petitioner was dismissed; hence this petition. 4. The learned counsel for the petitioner submits that since respondent No. 4 has attained the age of puberty i.e. 15 years therefore, the petitioner is not legally bound to maintain him; that the petitioner not having easy circumstances has no obligation to maintain respondents Nos. 3 to 5; that while calculating maintenance, the learned District Judge has travelled beyond record; that the findings of the Courts below suffer from misreading of evidence and that Mst. Akhtar-un-Nisa respondent No. 3 who has not been living with the petitioner is not entitled to the maintenance allowed to her. Conversely, the learned counsel for the respondents supported the judgment of the learned District Judge. 5. I have considered the arguments advanced by the learned counsel for the parties with care. I find that although the two appeals were disposed of through separate judgments and the appeals were quite independent yet the petitioner has not cared to challenge the same through separate writ petitions. He has placed on record only one judgment of the appellate Court passed in appeal filed by Mst. Akhtar-un-Nisa respondent No.3 against the petitioner. The constitutional relief being extra ordinary and discretionary one, the writ petition to the extent of the order of the maintenance of the minor children confirmed by the learned District Judge is liable to be rejected on this score alone. As for the judgment and decree for the maintenance of the minor children I find that the petitioner being their father, he is under the legal obligation to maintain them. As for the wife respondent No. 3. I also find that there is nothing on the record to show that she was living separately without any factual or legal justification. Both the Courts have applied their conscious mind to the evidence on record and have given sound and cogent reasons in support of the conclusions arrived at by them. The respondent No. 4 (the son) was admittedly minor at the time of the institution of the suit. If he by now has attained puberty, the objection may be raised before the executing Court if so advised. The learned counsel has failed to point out any material misreading of evidence by the learned District Judge. I find that the relevant provisions of law have not been flouted and the question of the maintenance of respondents Nos. 3 to 5 has been considered and determined in accordance with the case-law laid down by the superior Courts. For what has been stated above, no case for interference in the exercise of the constitutional jurisdiction of this Court is made out. The parties shall bear their own costs. H.A.K. Writ refused.