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Writ Petition No. 1270 of 1981, decided on 25th February, 1982.

---Art. 9--West Pakistan Family Courts Act (XXXV. of 1964), S. 5- Natural justice, principles of--Petitioner, alleging to have been condemned unheard for riot allowing him to produce his evidence--Petitioner himself not appearing before Court an dates fixed for recording his evidence- Petitioner, therefore, was himself responsible for non-production of his evidence--Objection about non-hearing not sustained.

---S. 5---Evidence Act (I of 1872), S. 58--Maintenance--Facts admitted need not be proved--Petitioner before taking a second wife entering into an agreement with his first wife undertaking to provide her maintenance--Record showing that petitioner admitted before appellate Court execution of agreement about main tenance--Petitioner, held, could not say that agreement was a forged document and that onus lay on wife to prove its execution or genuineness in view of cardinal principles of law that 'facts admitted need not be proved'.

---S. 5--Provisional Constitution Order (l of 1981), Art. 9- Maintenance--Respondent wife living separately from her husband turned her out of his house--No allegation of adultery levelled by husband against her--Wife, held, had been living separately for sufficient cause and was entitled to get maintenance from husband--Order of Courts below to the same effect not suffering from any jurisdictional defect Interference declined in constitutional jurisdiction.

Sikandar Hayat Khan Baluch for Petitioner.

Rai Khadim Ali for Respondents.

Date of hearing: 25th May, 1982.

Maqsood Ahmad has filed this constitutional petition calling in question the legality of the order, dated 5-12-1981 passed by the Additional District Judge, Sahiwal, confirming the order of the Judge, Family Court, Sahiwal, dated 3-2-1981 accepting the application for maintenance of respondent No. 1, directed the petitioner to pay maintenance allowance of Rs.175 per month to the respondent during her life time.

2. Brief facts of the case are that marriage of respondent No. 1 was solemnized with the petitioner on 11-11-1965. He executed an agreement on 18-5-1976 in favour of the respondent undertaking to pay her Rs.125 and 11 Maunds of wheat every month by way of maintenance. The petitioner did not have any issue from the respondent and, therefore, he .married as second wife. The things went smooth for about a month, where after the respondent complaining of cruel treatment by the petitioner went to live with her parents. On 9-2-1977, she instituted a suit for maintenance against the petitioner on the basis of the aforementioned agreement, as the petitioner failed to pay her the maintenance allowance regularly.

3. The petitioner resisted the suit and took up the defence that he had paid a. lump sum of Rs.2,050 as maintenance allowance to the respondent at the time of his second marriage and in lieu thereof, the respondent had returned the written agreement to mean that it was revoked. The learned Judge, Family Court, on the pleadings of the parties framed the following issues and recorded evidence:-

(1) Whether the plaintiff is entitled for maintenance according to the agreement executed between the parties at the rate of Rs.175 per month

(2) Relief .

The learned trial Judge decided issue No. 1 against the petitioner and directed him to pay a sum of Rs.175 every month as maintenance allowance to the respondent. Against this order, the petitioner filed an appeal in the Court of District Judge, Sahiwal, which was dismissed by him on 5-12-1981. Being aggrieved, the petitioner has filed the present constitutional petition.

4. I have heard learned counsel for the parties at some length and also perused documents appended with the petition and relied upon by him.

5. In the first place, learned counsel for the petitioner contended that he was not afforded reasonable opportunity by the learned trial Judge to produce his evidence and in this way he was condemned unheard. He had raised this objection before the learned Additional District Judge also who found that the case was fixed for recording the petitioner's evidence on 18-2-1980, 5-3-1980 and finally on 24-5-1980 but each time he failed to produce the same. In these circumstances, I think, it was the petitioner who was to be blamed for the non-production of his evidence and none else. This objection, therefore, is not correct.

6. He next contended that the learned trial Judge has misread the evidence inasmuch as he had relied on a forged agreement Exh. P. 1 purported to have been executed by the petitioner in favour of the respondent undertaking that he would pay a sum of Rs.125 and 1) maunds of wheat every month as maintenance to the respondent: It is in the judgment of the learned Additional District Judge that the petitioner when appeared as his own witness as D.W. 1, had admitted its execution. 1 asked the learned counsel as if this observation of the learned Additional District Judge was correct according to the record, to which he replied in the affirmative. In view of this admission by the petitioner, it does not lie in his mouth to call it a forged one and no onus lay on the respondent to prove, its execution 'or genuineness in view of the cardinal principle of law that "facts admitted need not be proved". This objection, too, is therefore, without force.

7. Lastly, the learned counsel contended that since the respondent was not living with him, therefore, he was not under any legal obligation to maintain her. A plain reading of section 488, Cr.P.C. shows that a wife shall not be entitled to receive maintenance allowance from her husband if she was proved to be "living in adultery" or if she refused to live with her husband without any "sufficient reason". The petitioner has not levelled any charge of adultery against the respondent and the learned two Courts below have held that the respondent has been living separately because the petitioner had turned her out of his house. It means that she was living separate from the petitioner for "sufficient reasons" and, therefore, she was not disentitled to get maintenance from the petitioner.

8. No other objection has been raised. Even otherwise, I find that the orders of the two Courts below do not suffer from any jurisdiction all defect to call for interference by this Court.

9. For the foregoing reasons the writ petition being without merit, is dismissed. However, there is no order as to costs.

M . Y . H . Petition dismissed .

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