2013 C L C 897
 
[Lahore]
 
Before Muhammad Farrukh Irfan Khan, J
 
SAIF ULLAH----Petitioner
 
Versus
 
MAIMOONA ALMAS and others----Respondents
 
Writ Petitions Nos.1210 and 1315 of 2011, decided on
4th December, 2012.
 
(a) West Pakistan Family Courts Act (XXXV of
1964)---
 
----S. 5, Sched.---Constitution of Pakistan,
Art.199---Constitutional petition---Maintenance allowance for minor---
Admission
of father (government employee) to be drawing monthly salary as Rs.9,944/- with
periodic increase therein---
Maintenance awarded to minor by Family Court @
Rs.3000/- per month with annual increase therein @ 10% upheld by
Appellate
Court---Father's plea was that no provision existed in West Pakistan Family
Courts Act, 1964 for granting
maintenance with annual increase
therein---Validity---Father in evidence had admitted increase in his pay on
periodic basis
as well as 50% increase in his earlier basic pay and medical
allowance---Courts below on basis of evidence available on
record regarding
periodic increase in monthly salary/income of father and also considering
growing needs of minor along
with rampant inflation in currency had rightly
awarded 10% annual increase in maintenance of minor---High Court
dismissed
constitutional petition in circumstances.
 
Khadeeja
Bibi and others v. Abdul Raheem and others 2012 SCMR 671 ref.
 
Abdul
Razzak v. Shabnam Noonari and others 2012 SCMR 976 rel.
 
(b) West Pakistan Family Courts Act (XXXV of
1964)---
 
----S. 5, Sched.---Constitution of Pakistan,
Art.199---Constitutional petition---Suit for recovery of medical expenses
incurred
by wife on birth of her son---Father claimed that he had defrayed all
the expenses incurred at the birth of the minor---
Father's plea was that wife
had never allowed him to meet minor son, thus, he had to file application for
his custody---Suit
decreed by Family Court upheld by Appellate
Court---Validity---Father had not produced any evidence in form of an official
docket or advance cash deposit receipt of hospital to show that he got his wife
admitted in hospital---Father in view of his
such plea could not be believed to
have paid such expenses to wife---High Court dismissed constitutional petition
in
circumstances.
 
(c) West Pakistan Family Courts Act (XXXV of
1964)---
 
----S. 5, Sched.---Suit for recovery of dowry
articles---Husband's plea was that he had returned such articles to wife in
presence of witnesses---Proof---Evidence led by husband was contradictory to record
of suit filed by him for restitution of
conjugal rights, wherein he had
admitted that such articles were lying in his house---Wife through cogent
evidence had
proved herself to be entitled to such articles as per its
list---Suit was decreed in circumstances.
 
(d) West Pakistan Family Courts Act (XXXV of
1964)---
 
----S. 5, Sched.---Suit for recovery of gold
ornaments by wife---Wife's plea was that such ornaments were in possession of
husband, when she was expelled from his house in wearing
apparels---Proof---Generally, wife would be deemed to be in
possession of such
articles, when relationship between spouses were cordial and she on her own had
left her husband abode-
--Husband had neither cross-examined wife on such plea
recorded in her affidavit-in-evidence nor denied same in his
affidavit-in-evidence nor put any suggestion to her that such articles were in
her possession or she took away same with her
while leaving his house---Wife
was entitled to recover from husband such articles or in alternative its
present market price---
Suit was decreed in circumstances.
 
(e) West Pakistan Family Courts Act (XXXV of
1964)---
 
----S. 5, Sched.---Constitution of Pakistan,
Art.199---Constitutional petition---Suit for recovery of maintenance allowance
by
wife---Refusal of wife to live with her husband despite having received
dower amount on basis of compromise effected
between spouses in suit for
restitution of conjugal rights filed by husband---Validity---Wife for being
disobedient was not
entitled to maintenance during period of desertion---Suit was dismissed in circumstances.
 
Raja
Zaheer-ud-Din Babir for Petitioner.
 
Ms.
Ferhana Qamar for Respondents Nos.1 and 2.
 
ORDER
 
MUHAMMAD
FARRUKH IRFAN KHAN, J.--- By means of this order, I propose to decide the
aforementioned writ
petition as well as Writ Petition No.1315 of 2011 filed by
respondent No.1 Mst. Maimoona Almas as both these arise out of
the consolidated
judgment of the learned lower appellate court. (Hereinafter Saif Ullah shall be
referred to as petitioner,
whereas, Mst. Maimoona Almas shall be referred to as
respondent).
 
2. Briefly
the facts of the case are that the respondent filed a suit for recovery of
maintenance allowance, medical
expenditures, recovery of dowry articles as per
list and gold ornaments weighing 11 Tolas. The learned Judge Family Court,
vide
impugned judgment dated 6-11-2010 decreed the suit in the following terms:---
 
"In
view of my findings on above issues, it is observed that plaintiff No.1 is
entitled to receive dowry articles mentioned al
list Exh.P2 at serial No.1 to
serial No.105 and also entitled to receive maintenance allowance for the period
of 'Iddat' @
Rs.3000/- per month and medical expenses as claimed in the plaint
whereas the plaintiff No.2 is held entitled to recover
maintenance allowance
from the defendant @ Rs.3000/- per month from the date of institution of suit,
with 10% annual
increase. However, the claim of plaintiff No.1 to the extent of
recovery of gold ornaments is rejected."
 
3. Being
aggrieved both the parties filed appeals before the learned lower appellate
court who vide consolidated judgment
and decree dated 1-4-2011 dismissed both the appeals with modification to the effect "that the
articles mentioned at
Sr.Nos.83 to 85 of list Exh.P2 are excluded." Being
dissatisfied both the parties filed aforesaid constitutional petitions.
 
4. Learned
counsel for the petitioner submits that the judgments and decrees of the
learned courts below are based on
surmises and conjectures and result of
misreading and non-reading of the evidence; that the petitioner has proved
through
reliable evidence that the dowry articles were returned to respondent
in the presence of witnesses; that learned courts below
erred in law while
awarding maintenance allowance to the minor at such an exorbitant rate; that
the respondent could not
prove the financial status of the petitioner as
alleged in the plaint; that the petitioner is not in a position to pay
maintenance
allowance to the minor at such high rate; that the learned Judge
Family Court also passed order for annual enhancement of
minor's maintenance at
unjustifiable rate of 10% per year which has illegally been upheld by the
learned lower appellate
court; that there is no provision in the Family Courts
Act, 1964 for imposition of annual increase in the maintenance
allowance. He
relied on cases reported as Khadeeja Bibi and others v. Abdul Raheem and others
(2012 SCMR 671). Learned
counsel further contended that all the expenses on
birth of the minor were defrayed by the petitioner but the learned courts
below
misconstrued the evidence available on the record while awarding these expenses
to the respondent; that the evidence
in this case has not been properly
evaluated and the conclusions drawn therefrom are liable to be struck down.
 
5. Conversely,
learned counsel for respondent submits that the judgments and decrees of the
learned courts below to the
extent of non-suiting the respondent from recovery
of gold ornaments are result of misreading and non-reading of the
evidence;
that the respondent proved her stance that the gold ornaments are in possession
of the petitioner through
confidence-inspiring evidence which was overlooked by
the learned courts below while recording their findings on this
issue; that the
learned lower appellate court was not justified in modifying the decree of the
learned Judge Family Court by
excluding items mentioned at Sr.Nos.83 to 85 of
list Exh.P1 in particular when the petitioner himself admitted possession of
dowry articles; that the respondent is entitled to recover maintenance for the
period of desertion which has illegally been
declined by the learned courts
below.
 
6. I
have heard the arguments of the learned counsel for the parties and gone
through the record.
 
7. As
far as quantum of maintenance allowance to the minor is concerned, the version of the petitioner in his written
statement was that his monthly income was round about 6/7 thousand per month, however, during cross-examination
he
admitted his monthly salary as Rs.9,944/-. He further admitted 50%
enhancement in his basic pay and enhancement in
medical allowance, therefore, the learned Judge Family Court after due appreciation of the evidence available on the
record
awarded maintenance @ of Rs.3000/- per month to the minor which has
rightly been maintained by the learned lower
appellate court.
 
8. Learned
counsel for the petitioner while referring the aforementioned case-law laid
much stress that there is no provision
in the Family Courts Act, 1964 for
annual enhancement of maintenance. I have had the opportunity to go through the
aforesaid esteemed judgment of the Hon'ble apex Court and am of the considered
view that the facts and circumstances of
the said case were distinct and
distinguishable inasmuch as in that case income of the respondent/father was
not
ascertainable without recording of evidence. The relevant extract of the
above judgment is reproduced as under:---
 
"The
other question as to automatic annual increase in the maintenance for the minor
children has been dealt with by the
High Court in para 7 of the impugned
judgment. At present, there appears to be no factual basis brought on record to
justify
such annual increase. The learned counsel for the petitioner, however,
slates that he will be in a position to lead evidence in
the form of financial
statistics including the Sensitive Price Index ("SPI") to persuade
the trial Court to grant annual increase
in line with such statistical
data."
 
Here in this case the petitioner is a government
employee and admittedly his salary and other allowances are increased on a
periodic basis with sometimes by a quantum leap, as has been 50% enhancement in
his earlier pay. This fact finds support
from own statement of the petitioner
wherein he categorically admitted enhancement in his monthly salary and medical
allowance. Therefore, factual basis for enhancement was available to the courts
below which was duly considered by them
in awarding 10% annual increase in the
maintenance allowance of the minor. Furthermore, the Hon'ble Supreme Court of
Pakistan in a recent case reported as Abdul Razzak v. Shabnam Noonari and
others (2012 SCMR 976) declined to grant
leave to appeal against the order of
the High Court which had refused to intervene in the concurrent judgments of
the courts
below inter alia awarding annual increase in maintenance. The
Hon'ble apex Court observed as under:---
 
"6. We
have considered the submissions of the learned Advocate Supreme Court for the
petitioner, and perused the material
placed on record, which reveals that all
the three Courts below have given due attention to the pleadings of the
parties,
evidence adduced by them before the Family Court and after proper
appreciation of the evidence, awarded the decree for
maintenance etc. in favour
of respondent No.1. It is for this reason that the High Court, while exercising
its jurisdiction
under Article 199 of the Constitution, which is equitable and
discretionary in nature, has also declined to intervene in the
matter.
 
9. For
the foregoing reasons, we do not find any substance in this petition for leave
to appeal, which is accordingly
dismissed and leave refused."
 
For what has been discussed above, in my opinion the
learned Judge Family Court has rightly granted 10% annual
enhancement keeping
in view the periodic increase in the monthly salary/income of the petitioner
considering ever growing
needs of the minor along with the rampant inflation in
the currency and the learned counsel for the petitioner is unable to
point out
any illegality or irregularity in the findings of the learned lower courts
below warranting interference by this Court
in its Constitutional jurisdiction.
 
10. Now
coming to the question of delivery expenses. It is the claim of the petitioner
that he defrayed all the expenses
incurred at the birth of the minor but in
this connection in order to support his stance, he could not produce any
reliable
evidence. In his written statement the petitioner stated that
respondent tried her level best to restrain him from meeting with
the minor and
he had to file application for his custody. In such acrimonious circumstances
it is beyond comprehension that
he would have paid medical expenses on the
birth of the minor. Furthermore, the petitioner has also failed to produce any
documentary evidence like an official docket or advance cash deposit receipt of
the hospital from which it could be inferred
that he got the respondent
admitted in the hospital, therefore, findings of the learned courts below on
this issue are
unexceptional.
 
11. As far
as findings on the issue of recovery of dowry articles are concerned, according
to the version of the petitioner he
returned the dowry articles to the
respondent in the presence of witnesses. In order to substantiate his version
he himself
appeared as DW1 and also got recorded the statement of one Ahmad
Zarar as DW2. According to the version of DW2 he
shifted the articles to the
parent's house of respondent in April, 2008 which is contradictory to record
because in the suit for
restitution of conjugal rights the petitioner on
23-7-2008 got recorded his statement that dowry articles of respondent were
lying in his house. Learned Judge Family Court after due appreciation of the
evidence available on the record had passed the
impugned judgment and decree
which was unjustifiably modified by the learned lower appellate court. The
respondent has
proved through reliable and convincing evidence that she is
entitled to a decree for recovery of dowry articles as per list
Exh.P1. For the
reasons discussed above, findings of the learned lower appellate court on this
issue are set aside and those of
the learned Judge Family Court are restored.
 
12. As to
the claim of the respondent regarding recovery of 11 tolas gold ornaments, the
learned Judge Family Court while
declining her prayer to this extent has mainly
relied upon the earlier decision of the learned Judge Family Court dated
23-7-
2008 in a suit for restitution of conjugal rights. The relevant extract of
his judgment is reproduced as under:---
 
"It
will not be out of place to mention here that in the said statement defendant
admitted other claims regarding dowry
articles, dower and maintenance allowance
of plaintiff No.1. Statements of the parties were recorded at the time of
compromise and prior to institution of this suit. Had the defendant been in
possession of gold ornaments at that time he
would have admitted their
possession and would have promised for return of the same to plaintiff No.1 as
he did in regard to
other claims of plaintiff No.1 regarding dowry articles,
maintenance allowance and dower."
 
I have gone through the aforesaid order of the
learned Judge Family Court in the restitution suit which was compromised
and
have noticed that the learned Judge in that suit has not touched upon the claim
of respondent regarding recovery of gold
ornaments and dowry articles by
categorically observing that on these claims there are differences amongst the
parties which
should be resolved after recording the evidence. In view of this
disagreement floating on the surface of the record, the
learned Judge Family
Court while passing the impugned judgment was not justified in depriving the
petitioner from gold
ornaments on the basis of an ill-founded assumption which
is not supported by the record or evidence produced by the
petitioner.
 
13. The
respondent herself appeared as P.W.1 and tendered her affidavit Exh.P1 wherein
she categorically stated that the
gold ornaments were in possession of the
petitioner. Learned counsel for the petitioner neither cross-examined the
respondent on this point nor put any suggestion that the gold ornaments were in
her possession as such version of the
respondent stands unrebutted. No doubt
ordinarily gold ornament remain in the possession of ladies but at the same time
one
may not be oblivious of the fact that this situation prevails generally
when relationship between a couple is cordial and the
wife leaves the house of
husband of her own accord. In the present case, the respondent in her affidavit
Exh.P1 narrated that
the petitioner expelled her from his house in wearing
apparels after beating her whereas, on the other hand, the petitioner in
his
affidavit Exh.D1 neither rebutted this version of the respondent nor stated
that at the time of desertion the respondent
took gold ornaments with her,
therefore, in the absence of any rebuttal, the learned courts below were not
justified in
depriving the respondent from the gold ornaments. For the above
reasons, findings of the learned courts below on this issue
are set aside and
the respondent is held entitled to recover 11 tolas gold ornaments or in
alternate its present market price
from the petitioner.
 
14. So far
as claim of the respondent regarding past maintenance allowance is concerned,
it is evidence from the record that
in the suit of the petitioner for
restitution of conjugal rights compromise was effected between the parties
pursuant to which
dower amount was paid to respondent but despite this she
refused to perform matrimonial obligations, therefore, the learned
courts below
have rightly held that the respondent being a disobedient wife was not entitled
to recover maintenance
allowance cluing the period of desertion. Findings of
the learned courts below to this extent need no interference and the
same are
hereby maintained.
 
15. For
what has been discussed above, Writ Petition No.1210 of 2011 filed by the
petitioner is dismissed and Writ Petition
No.1315 of 2011 filed by the
respondent is partially accepted in the above terms. No order as to costs.
 
SAK/S-17/L Order
accordingly.
;