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Constitutional Petition No. S‑104 and Civil Miscellaneous Applications Nos. 331 and 332 of 1985, decided on 18th February, 1986.

‑‑‑S. 5, Sched.‑‑Constitution of Pakistan (1973), Art.199‑ Maintenance‑‑Determination of amount‑‑Concurrent findings of fact‑ Constitutional jurisdiction, invocation of‑‑Concurrent findings of facts in respect of determination of amount of maintenance, by two Family Courts of competent jurisdiction after taking into consideration evidence produced by both sides, held, could not be challenged by invoking constitutional jurisdiction or‑High Court on plea that rates of amount of maintenance concurrently fixed by Courts were excessive.

Fazal Khitab v. Mst. Naheed Akhtar P L D 1979 SC 864; Syed Muhammad Mashooq v. Mst. Nafis Fatima and others 1984 S C M R 1138; Muhammad Hussain Munir v. Sikandar and others P L D 1974 SC 139 and Badrul Haq Khan v. The Election Tribunal Dacca and others PLD 1963 S C 704 ref.

Usman Ghani Rashid for Petitioner.

The brief facts of the case are that respondents Nos. 1 and 2 filed Family Suit No. 1486 of 1980 in the Court of VIIth Civil Judge/Family Judge, Karachi wherein after pleading inter alia that she was married to the petitioner at Karachi and out of the said wedlock the minor Khurram was born on 11‑10‑1978 and that thereafter while she was pregnant and had gone to stay at her parents house for short time, being in family way and feeling weak and unwell, she received deed of divorce/letter of divorce on 13th April, 1980 from the petitioner. To the said letter reply was sent on 18th May, 1980 in which the respondent No.l Mst. Khairunnisa informed the petitioner that she being in family way could not be divorced. In spite of this reply sent by the respondent No.l to the petitioner there was no favourable response from the petitioner and consequently in July 1980 she filed the abovementioned suit praying therein that a sum of Rs.3,000 per month from April 1980 for the maintenance of the plaintiffs and the minor son (Khurram) be awarded to the respondent No.l. It may be mentioned here that in the plaint it was also pleaded that the petitioner is a man of means and is bound to maintain respondent No.l and the son (Khurram) and the child who was going to born out of the wedlock in a befitting manner, under law, irrespective whether he divorces her or otherwise. The learned Family Judge after recording the evidence and hearing the advocates for the parties after finding that the petitioner is one of the owners of the business in the shop mentioned in the evidence held that he can easily pay Rs.500 per month as maintenance to each of the children. He further held that the respondent No.2 is also entitled for past maintenance of Rs.500 per month The operative part of the judgment is reproduced as follows:‑

"I, therefore, in the interest of justice direct the defendant to pay at the rate of Rs.500 p.m. to plaintiff Mst. Khairuniusa as a past maintenance from April 1980 to December 1980 and also he should pay Rs.500 p.m. for the months of January, February and March 1981 to plaintiff Mst. Khairunnisa as maintenance of her Iddat period. The defendant is further directed to pay Rs.500 p.m. to son Khurram. Defendant is also directed to pay Rs.500 p.m. as a maintenance to his second child from December 1980 upto February, 1980 as a past maintenance. The defendant is directed to deposit the past maintenance of plaintiff Mst. Khairunnisa and minors Khurram and Tabassum in Court within 2 months from the date of this order. The defendant is further directed to deposit the further maintenance of his children viz. Khurram and Tabassum in Court for the month of March 1982 and onwards before 10th of each calendar month. Suit is decreed accordingly with no order as to costs."

2. Against the above judgment Family Suit No. 74 of 1982 was filed which was heard and disposed of by the learned District Judge by judgment passed on 21‑8‑1985. The learned appellate Court disagreed with the finding that Babi Tabassum (though admittedly daughter of the petitioner) is not entitled for maintenance as she was not a party to the case and no claim on her behalf had been filed for her maintenance. He however, held that the respondent No.l/Mst. Khairunnisa and master Khurrum the respondent No.2 (minor son) are entitled to maintenance at the rate of Rs.500 per month as observed by the learned trial Court. The learned appellate Court on the evidence recorded in the case, concurred with the findings of the trial Court and held:‑

"In view of what has been discussed above, I find no force in this appeal which is accordingly dismissed but I am constrained to modify the same to the extent that only mother and master Khurram are entitled to the maintenance at the rate of Rs.500 per month. The respondent Mst. Khairunnisa is entitled to the past maintenance from April 1980 to December 1980 and for the Iddat period i.e. January, February and March 1981. Master Khurram is entitled to the maintenance from April 1980 till he is in lawful custody of his mother. With this modification appeal stands disposed of accordingly."

3. The above judgments and decrees passed by the Family Judge and the appellate Court are sought to be impugned by the petitioner invoking the constitutional jurisdiction of this Court by filing this petition under Article 9 of P.C.O. 1981 read with Article 199 of the Constitution of Pakistan, 1973 Mr. Usman Ghani Rashid, learned counsel for the petitioner submitted that the maintenance has been allowed to the respondents Nos. 1 and 2 at a much excessive rate and that the Courts below have not specified the period for which the petitioner would continue to be liable to pay the amount of maintenance awarded.

4. I have heard the learned counsel. In my opinion the question as to the rates at which maintenance was allowed by the Courts cannot be agitated in this Court. The rates at which maintenance have been allowed were fixed by the two Courts below, after taking into consideration the evidence produced by both the sides and that the concurrent findings of facts thus reached by the said Courts of competent jurisdiction cannot be challenged by invoking the constitutional jurisdiction of this Court on the plea that the rates so fixed are excessive. Reference here may be made to the principle laid down in the case reported as Fazal Khitab v. Mst. Naheed Akhtar P L D 1979 SC 864 wherein the Hon'ble Supreme Court held that the matters of controversy are concluded by findings of fact reached by Family Courts which are well‑supported by the evidence on record and such findings do not call for any interference either by the High Court in its writ jurisdiction or by filing petition for special leave to appeal. Reference may also be made here to the case of Syed Muhammad Mashooq v. Mst. Naffs Fatima and others 1984 S C M R 1138 wherein it was also held that concurrent findings of the two Courts below granting relief on the claim of the respondent based on evidence are findings of facts which could not be challenged in a constitution petition. I may also refer here to the case of Muhammad Hussain Munir v. Sikandar and others PLD 1974 SC 139 wherein it was held that it was wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court of Tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. It was further held that if such a procedure was adopted it would make the High Court's jurisdiction indistinguishable from that exerciseable in a fullfledged appeal, which plainly is not the intention of the Constitution makers.

In the case of Badrul Haq Khan v. The Election Tribunal Dacca and others P L D 1983 SC 704 the Hon'ble Supreme Court held that:‑

"The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."

For the aforesaid reasons I do not find any substance in the submissions made by the learned counsel for the petitioner challenging the rates of maintenance granted by the appellate Court which according to me are findings of facts based on proper appreciation of evidence.

5. As regards the second plea raised by the learned counsel for the petitioner, it appears to me that this plea is based upon misconception for the reason that the two learned Courts of competent jurisdiction, have expressly held that respondent Mst. Khairunnisa is entitled to past maintenance from April 1980 to December 1980 and for Iddat period i.e. July, February and March 1981 and that master Khurram is entitled to the maintenance from April 1980 till he is in lawful custody of his mother/ respondent No.l.

6. The upshort of the above discussion is that I find no merit in this petition, which accordingly is dismissed in limine.

H . B . T . Petition dismissed.

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