2024 M L D 1349
[Balolchistan]
Before Muhammad Kamran Khan Mulakhail and Shoukat Ali Rakhshani, JJ
RUKHSANA--- Petitioner
Versus
MUHAMMAD KHAN and 2 others ---Respondents
C.P. No. 1211 of 2020, decided on 17th August, 2022.
Family Courts Act (XXXV of 1964) ---
----S.5, Sched.--- Constitution of Pakistan, Art.199--- Constitutional petition ---Maintenance
allowance--- Wife leaving husband's house ---Petitioner/wife filed suit for recovery of
maintenance for herself and her daughters ---Family Court and Lower Appellate Court fixed
maintenance allowance to the extetof daughters only ---Validity ---Petitioner/wife failed to
discharge her part of obligation ---Factum of leaving house of respondent/husband by
petitioner/wife at her own was established on record ---Petitioner/wife was not entitled to
past and future maintenance ---High Court declined to interfere in concurrent findings of
fact by two Courts below ---Constitutional petition was dismissed, in circumstances.
Mujahid Kamran v. Mst. Sahira Aziz and 2 others 2022 CLC 24 ref.
Waqar Ahmed Butt v. Judge Family Court and others 2009 SCMR 1243 rel.
Najamuddin Mengal for Petitioner.
Muhammad Khan, Respondent No. 1 in person.
Date of hearing: 4th August, 2022.
ORDER
SHAUKAT ALI RAKHSHANI, J. ---Calls in question the judgment and decree
authored by Family Judge -II, Quetta ("Family Court") on 31st December 2019 ("impugned
judgment in original") and judgment and decree ("impugned judgment in appeal") delivered
on 2nd October 2020 by Additional District Judge -IX, Quetta ("Appellate Court") in a suit
for maintenance allowance for herself and two daughters along with recovery of their documents filed by the petitioner -plaintiff.
2. Petitioner -plaintiff and respondent No. 1 -defendant got married on 1st September
1989, whereafter the spouse started living with the family of respondent No. 1- defendant;
initially their relationship remained cordial but a couple of months later, their relation became strained and there came a split, whereby the petitioner -plaintiff started residing
with her parents; due to mediation of the elders, sometimes the petitioner -plaintiff joined
the respondent No.1- defendant and then again a split, so, daughter Kanza was born at her
brother's house; petitioner -plaintiff remained away at her brother's house for ten years.
Petitioner -plaintiff claims that the respondent No.1 -defendant is a millionaire, having
properties in Quetta city, earning 4 to 5 lakhs per month, but inspite of being so wealthy, the respondent No. 1 -defendant has failed to maintain her and daughters, therefore, by
means of family suit sought maintenance Rs.25,000- per month since April 2016 and future
maintenance with 50% annual increment for herself and for both the daughters as well as asked for handing over the academic credentials of daughters Kishwar and Kanza.
On the other hand, the respondent No.1 -defendant vehemently denied the averments
made in the plaint and came up with the plea that the reason of their separation is no one but the petitioner -plaintiff; added further that he has been paying maintenance to his
daughters regularly with no default.
3. Divergent pleadings of the parties, culminating in casting of issues, followed in
recording of evidence; petitioner -plaintiff produced two witnesses and got recorded her
statement, whereas, conversely, the respondent No.1- defendant also produced two
witnesses and got recorded his own statement. Trial Court partially decreed the suit of the
petitioner -plaintiff -plaintiff, whereof extract is reproduced hereunder;
"1. Defendant is directed to pay maintenance allowance to the daughters Viz Kishwar and Kanza from May 2017 till marriage at the rate of Rs. 10000/ - per
month (each daughter). The maintenance of the daughters shall increase @ 10% per annum. First enhancement shall commence from January 2020.
2. Suit of the plaintiff to the extent of claim of her own maintenance of return of educational documents and CNIC's is dismissed."
4. Dissatisfied from the impugned judgment in original, the petitioner -plaintiff
preferred an appeal under Section 14 of the West Pakistan Family Courts Act, 1964. Learned Judge of the Appellate Court dismissed the appeal for being devoid of merits and thereby upheld the impugned judgment in original handed down by the Family Court,
hence this petition.
5. Learned counsel for the petitioner -plaintiff inter alia contended that the respondent
No.1 -defendant is a millionaire, having various properties, whereof he earns lakhs of
rupees, thus, the petitioner -plaintiff and both the daughters, bearing a huge amount of
expenses are entitled to receive maintenance allowance Rs.25,000/ - each. He maintained
that learned Judge of the Family Court has misread the evidence on record and has thus
passed the judgment and decree contrary to the evidence on record, which merits to be set aside. Added further that the Appellate Court has also failed to take into account the
requirements and needs of the petitioner -plaintiff and her daughters, ignoring the evidence
brought by them, making the impugned judgment in appeal perverse and illegal, having no
sanctity in the eyes of law.
Conversely, learned counsel for the respondent No.1- defendant vehemently opposed
the contention so put forth by the counsel for the petitioner -plaintiff, urging that the cause
of split is none but the petitioner -plaintiff herself as she has proved to be a disobedient
wife, thus, is not entitled for any maintenance. So far the daughters are concerned, they are
being maintained and paid Rs.10,000/ - per month inclusive of @ 10% increase per annum.
He submitted that at present both the daughters are on jobs and are earning sufficient amount of income as salary, thus, the decretal amount is more than sufficient for them and, as such, requested for dismissal of the petition.
6. Heard. Record perused thoroughly cover to cover.
7. Evidently, after scanning the evidence on record, perusal of the judgments rendered
by both the fora and the demeanor observed by us during the course of hearing transpire that the petitioner -plaintiff and the respondent No.1 - defendant in no way seems
compatible with each other, which may be a bitter truth but it is obviously a reality. The spouse from the early days of their marriage till the date of separation, no day have they served in prosperity. The moot question in the lis in hand is whether the petitioner -plaintiff
is entitled for past and future maintenance. It may be observed that before entering into the controversy and claim of the adversaries, it is necessary to examine the law governing the entitlement of wife for maintenance. Para -277 of D.F Mulla's book "PRINCIPLES OF
ISLAMIC LAW" ("Muhammadan Law") 7th Edition reads that husband is bound to maintain his wife unless she is too young for matrimonial intercourse, so long, as she is faithful and obeys his reasonable orders, but the husband is not bound to maintain her wife who is disobedient provided that the disobedience is justified by non -payment of prompt
dower or she leaves the of the husband due to cruelty. For ease of reference, relevant portion of para ibid is reproduced herein below;
"277. Husband's duty to maintain his wife. The husband is bound to maintain his
wife (unless she is too young for matrimonial intercourse,) so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless the refusal of disobedience is justified by non- payment of prompt (S. 290) dower, or she leaves
the husband's house on account of his cruelty."
8. Para- 278 of the Muhammadan Law ibid is also relevant, facsimile whereof
hereunder is ready reference;
"278. Order of Maintenance. If the husband neglects or refuses to maintain his wife
without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, 1898, section 488, in which case the Court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees."
9. Bare reading of para- 278 of Muhammadan Law, clearly manifests that for claim of
past maintenance an agreement must be executed in between the spouse so mentioned in a Nikah -Nama Form or incorporated in a separate deed at least while suing for maintenance
in a court of law. In this regard we are ersuaded with the precedent recorded in the case of "Mujahid Kamran v. Mst. Sahira Aziz and 2 others" (2022 CLC 24).
10. In the instant case, admittedly, neither such terms as per claim have been
incorporated in the Nikah- Nama nor a separate deed has been executed between the
spouses. So it be, analysis of the evidence on record even otherwise suggests that the petitioner -plaintiff has also failed to have proved her claim, particularly, when she has been
blamed by the respondent No.1- defendant (husband) to have left his house at her own will
and she being a cause of all the mess in their marital life. Petitioner -plaintiff has produced
her two brothers Muhammad Rehan (PW -1) and Sher Azam (PW -2). Muhammad Rehan
(PW -1) during cross -examination admitted that the petitioner -plaintiff left the house other
husband and started residing with her parents in a house situated at Abbotabad after three
months of marriage. He denied that from the date of marriage i.e. 1989 up till 2016, the
petitioner -plaintiff lived with the respondent No.1 -defendant at his house, however,
admitted that the respondent No.1- defendant had kept the petitioner -plaintiff -plaintiff and
her daughters in a separate house situated in front of his house. Sher Azam (PW -2)
admitted that the petitioner -plaintiff from 1989 till date is residing in Quetta but denied
providing separate accommodation to her, thus statements of both the witnesses have been
found by us to be contradictory. Undeniably, the burden of proving the fact that the
petitioner -plaintiff was dealt with cruelty and was turned out of the house by the
respondent No.1- defendant was upon the petitioner -plaintiff, but analysis of the statements
of PWs -1 and 2 as well as the deposition of the petitioner -plaintiff, we believe that she has
failed to prove the cruelty advanced by the respondent No.1- defendant as well as that she
was expelled by the respondent No.1- defendant from his house.
11. In view of the provisions referred hereinabove and appraisal of the evidence
demonstrates that the petitioner -plaintiff has not only failed to discharge her part of
obligation rather on the contrary, factum of leaving the house of the respondent No.1-
defendant by the petitioner -plaintiff at her own has been established on record, thus, she is
not entitled for the relief of past and future maintenance.
12. Record reflects that the daughters of the spouse regarding missing of their academic
credentials had made a publication in the newspaper, which shows that the respondent No.1 -defendant had not taken away the said documents rather the same were lost.
However, pursuant to order of this Court 16th December 2021, the domicile certificates of the daughters were separated from the domicile certificate of respondent No.1- defendant by
the office of Deputy Commissioner concerned, whereafter the daughters did not press the relief to such an extent. Daughters present in the court during a hearing admitted to have been regularly receiving maintenance allowance @ Rs.12,000/ - with an increment of 10%
as per decree.
The Family Court has decreed maintenance @ Rs.10,000/ - per month to both the
daughters with per annum increase @ 10%. Admittedly, both the daughters of the parties are grown enough and are doing jobs supporting themselves, thus, Rs.10,000/ - with 10%
increase per annum shall be enough to meet their expenditures as also concluded by both the courts below. Henceforth, it would be just and proper not to disturb the concurrent
findings of both the fora, particularly, in constitutional jurisdiction. In this regard the dicta
expounded in the case of "Waqar Ahmed Butt v. Judge Family Court and others" (2009 SCMR 1243). The excerption of relevant para -8 is reproduced hereunder;
"8. It is also a settled principle of law that this Court would not normally go behind a concurrent finding of fact recorded by the courts below, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible."
Corollary, the petition being bereft of the merits, is dismissed with no order as to
cost.
MH/144/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.