' Riaz Ahmad, the petitioner has challenged the judgment and decree dated 19-11-2001 recorded by Mr. Sana Khan Attique, the then learned Judge Family Court, Rojhan and the judgment and decree dated 16-3-2002 passed by Mr. Abdul Rashid, learned Additional District Judge, Rajanpur and other dated 17-4-2003 rendered by Mr. Hamid Pervez Khan, learned Juuge Family Court, Rojhan as being illegal and against the norms of justice, equity and good conscience and setting aside of the same on that score and issuing of appropriate writ/direction in the facts and circumstances of the case.
2. Briefly the facts relevant for the disposal of the instant petition are that the petitioner was married to Mst. Shakila Bibi and two daughters (respondents Nos.3 and 4) were born out of their wedlock. The relations between them became strained. She brought the-- suit for dissolution of marriage against him and also the suit for maintenance for her ownself and respondents Nos.3 and 4. In the latter they claimed past maintenance at the rate of Rs,1,000 per month each for respondents Nos.3 and 4 with effect from September, 1998 and for her ownself (Mst. Shakila Bibi)
Rs,2,000 per month since then and future at the same rate. He (petitioner) brought a suit for restitution of conjugal rights against her (Mst. Shakila Bibi). All the three suits were consolidated.
The consolidated issues were framed in the same. The parties led evidence in support of their respective assertions on 19-11-2001, the learned trial Court has dismissed his suit for restitution of conjugal rights and decreed that of her for dissolution of marriage against him. The suit for maintenance was decreed to the extent of respondents Nos.3 and 4 whilst it was dismissed to her extent. The respondents Nos.3 and 4 were awarded maintenance at the rate of Rs,400 per month each with 10% annual increase in the same till they attain maturity.
3. She and respondents Nos.3 and 4 feeling aggrieved of the impugned judgment and decree of the learned trial Court in the suit for maintenance brought the same under attack by way of an appeal. The same was assigned to the Court of Mr. Abdul Rashid, learned Additional District Judge, Rajanpur. She withdrew that appeal from there to her (Mst. Shakila Bibi) own extent. The learned Additional District Judge, vide his judgment and decree dated 16-3-2002 modified the judgment and decree of the learned trial Court in that suit (suit for maintenance) to the extent that respondents Nos.3 and 4 were held entitled to the recovery of maintenance from the petitioner from September, 1998 to onwards at the rate already fixed by the learned trial Court. He did not pay them the maintenance. So they brought petition for execution of decree for maintenance in their (respondents Nos.3 and 4) favour. He (petitioner) submitted objection petition therein containing also the prayer that decretal amount may be recovered from him in instalments.
4. These respondents (Nos.3 and 4) filed reply to that application before Mr. Muhammad Hamid Pervez Khan, learned Judge, Family Court, Rojhan, who vide his order dated 17-4-2003 dismissed that petition.
5. The petitioner feeling aggrieved of this judgment, decree and order has approached to this Court by way of the instant Constitutional petition.
6. His learned counsel has submitted that the learned trial Court as well as the learned Appellate Court have not applied their conscious judicious mind to the facts of the case in awarding maintenance to respondents Nos.3 and 4 as his financial position is such that he cannot pay them the maintenance particularly the past maintenance with effect from September, 1998 and the future with 10% annual increase in the same; and that the learned Executing Court has also not 'applied it's conscious judicious mind to the facts and circumstances .Of the case in declining his request for making instalments of the decretal amount vide it's order dated 17-4-2003 and hence interference in the Constitutional jurisdiction of this Court in all these judgments and decrees and order is necessary to save him from ruinage.
7. I have carefully considered the submissions advanced by the learned counsel for the petitioner and gone into the copies of the judgments, decrees and order of the Executing Court annexed to the petition.
8. There is no denying the fact that petitioner is the father of respondents Nos.3 and 4. He therefore, under the law as well as morally is bound to maintain them. He cannot have an escape from his such liability on any pretext.
9. Learned trial Court has fixed their maintenance at the rate of Rs,400 per month each with annual increase of 10% in the same. This is such a meagre amount that he can easily pay them the same. I may mention here that it is not hard to believe that in such amount a human child can be maintained with difficulty. The 10% increase annually in the same is also not unreasonable because it is a matter of common experience that cost of living is going high day-by-day; The determination of annual increase in their maintenance is based on reasonable approach towards the problem. Therefore, the learned trial Court had not at all erred in fixing their maintenance at that rate.
10. They had preferred appeal against the judgment and decree in their suit for maintenance. It has been admitted in evidence that these respondents (Nos.3 and 4) had been living with their mother separately from the petitioner prior to the institution of the suits. The learned Additional District Judge, therefore, was right in awarding them past maintenance from September, 1998, because the suit for maintenance was brought by them on 18-4-2001. Their plea in the evidence was that the petitioner had turned out them out of the house in September, 1998. The award of past maintenance to them, therefore, was of less than 3 years. They had deserved it too. Thus the learned Additional District Judge had also not at all erred in granting them the same. The modification by him in the impugned judgment and decree passed by the learned trial Court in their suit for maintenance as regards the past maintenance in such circumstances was not at all erroneous.
11. Thus both these Courts below have properly kept in view the, evidence on record and applied their conscious judicious mind to the facts and circumstances of the case while deciding the matter.
12. The petitioner cannot be absolved of his liability to maintain his minor daughters on the excuse of his weak financial position particularly when the amount of maintenance fixed by the two Courts is not at all exorbitant or excessive.
' It is ,a meagre amount, which he could easily afford to pay but he had appeared to have no such intention to pay them as he had dragged them in the litigation uptil now and so they were constrained to bring petition for execution of decree in their favour. He rather had made efforts there even to prolong the payment of maintenance to them by making request to the learned Executing Court for making instalments of the decretal amount.
13. It is sad that his minor children have remained without maintenance for sufficient time. He had been negligent in discharging his responsibility towards them in that matter. He, therefore, was not justified for asking indulgence by this Court in the form of making instalments of the decretal amount. The learned Executing Court therefore, was also right in declining such request. It's order is also based upon due consideration of the facts and circumstances of the case. Hence, no case for interference in the Constitutional jurisdiction of this Court has been made out. The instant petition is, therefore, dismissed in limine.