CH. IJAZ AHMED, J.--- Petitioner has sought leave to appeal against the judgment of Lahore High Court, dated 30-5-2006 passed in Writ Petition No,2406 of 2006.
2. The brief facts out of which the aforesaid petition arises are that petitioner solemnized marriage with the respondent No,2 on 15-6-2001. Relationship between petitioner and respondent No,2 became strained as is evident from the contents of the plaint. Subsequently, petitioner had divorced the respondent No,2 on 14-2-2005. Respondent filed suit for recovery of maintenance allowance for the last three years Rs,3,000 p.m. And recovery of future maintenance allowance in the Court of Judge Family Court on T.T. Singh on 24-2-2005. Petitioner filed written statement, controverting the allegations levelled in the plaint. Out of the pleadings of the parties, the Judge, Family Court framed the following issues:--
(i) Whether the plaintiff is entitled to get maintenance allowance, if so for what period and for what rate? OPP
(ii) Whether the plaintiff has got no cause of action and locus standi to file the suit? OPD
(iii) Relief.
3. The Judge, Family Court partially decreed the suit of the respondent No,2 on 16-1-2005 declaring that respondent was entitled to the past maintenance allowance of three months of Rs,3,000 p.m.
And would be entitled to recover the maintenance allowance for her Iddat period at the said rate.
To the extent of rest of the claim, the suit was dismissed. Respondent No,2 being aggrieved filed appeal before the District Judge, T.T. Singh who entrusted the same to Additional District Judge, T.T.
Singh. The learned Additional District Judge accepted the appeal and decreed the suit of the respondent/plaintiff declaring her entitled to recovery of maintenance from 24-2-2002 to 14-2- 2005 and also for Iddat period vide judgment and decree, dated 19-12-2005. The petitioner being aggrieved filed constitutional petition in the Lahore High Court which was dismissed vide impugned judgment dated 30-5-2006. Hence the present petition.
4. The learned counsel for the petitioner submits that learned First Appellate Court had erred in law to set aside the finding of the trial Court while granting past maintenance for three years to the respondent No,2/plaintiff and reversed the finding of the trial Court/Judge, Family Court without judicial application of mind. He further maintains that First Appellate Court had decided the matter by misreading and non-reading of the evidence on record. He further urges that First Appellate Court had erred in law to grant past maintenance allowance which was not in consonance with the Injunctions of Islam. He further submits that respondent did not show any cause of action in the contents of plaint, therefore, her plaint was liable to be dismissed on the short ground but all the Courts below had erred in law not to dismiss/reject the plaint of respondent No,2/plaintiff.
5. We have considered the submissions and have perused the record. The First Appellate Court has reversed the finding of the Judge, Family Court/trial Court with cogent reasons after proper appreciation of evidence as evident from paragraphs 7 to 8 of the judgment of the First Appellate Court which are at pages 26 to 29 of present paper book. The learned High Court had taken lot of pain to reappraise the evidence in constitutional jurisdiction and affirmed the same with cogent reasons as evident from paras.4 and 5 of the impugned judgment. It is an admitted fact that the petitioner did not provide maintenance allowance to respondent No,2 as the petitioner was not in the country and had gone to Saudi Arabia and remained there. On account of absence of the petitioner from the country and on account of treatment of his near relatives towards respondent No,2, she was constrained to live in her parent's house as observed by the two Courts below. During the period of three years almost the petitioner did not reside in Pakistan except he had visited once or twice for a few days. Therefore, both the Courts below were justified to come to conclusion on the basis of the evidence on record that respondent/plaintiff was constrained by the cruel treatment of the petitioner and his family to remain away from the house of the petitioner and had been maintained by her parents. It is a settled law that a Muslim husband is under a legal obligation to maintain his wife and if she is forced to live away from him for no fault on her part, even then he has to provide maintenance allowance to her. In such a case the wife can claim past maintenance as law laid down by the superior Courts in the following judgments:--
(i) Rashid Ahmad's case PLD 1968 Lah. 93; (ii) Muhammad Yousif's case 1980 SCMR 385; (iii)
Ghulam Nabi's case PLD 1991 SC 543; (iv) Shabihur Raza's case PLD 1975 Lah. 690; (v) Mst. Hajran Bibi's case PLD 1981 Lah. 761; (vi) Sheikh Abdul Karim's case PLD 1977 Kar. 477 and (vii) Muhammad Najeeb's case 1985 CLC 649.
6. The aforesaid judgments along with section 278 of Muhammadan Law by D.F. Mullah were considered in Syed Mudassar Altaf's case PLD 1993 Lah. 810 and laid down a principle that wife was entitled to claim past maintenance for a period of 6 years in view of law laid down by this Court in Muhammad Nawaz's case PLD 1972 SC 302. The aforesaid proposition is supported by Muhammad Aslam's case 1990 CLC 934 and Muhammad Ibrahim's case 1991 CLC 1296. There is a contrary view in the following judgments in which the Court has laid down a principle that wife is entitled to past maintenance to the extent of three years:--
(i) Abdul Latif's case 1985 CLC 1184; (ii) Controlling Authority/Collector's case 1989 MLD 145; (iii)
Ahmad Riaz's case 1994 CLC 2403.
7. In view of what has been discussed above, the contention of learned counsel for the petitioner that both the Courts had erred B in law to grant past maintenance to respondent No,2 for three years, has no force.
8. The second contention of learned counsel for the petitioner that respondent No,2/plaintiff did not disclose any cause of action in her plaint has also no force in view of provisions of the West Pakistan Muslim Family Courts Act, 1964. The relevant provisions are reproduced hereunder:- "7. Institution of suit.--- (1) Every suit before a Family Court shall be instituted by the presentation of a plain or in such other manner and in such Court as may be prescribed.
(2) The plaint shall contain all [material facts relating to the dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose: ' Provided that the parties may, with the permission of the Court, call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice.
[(3)(i) Where a plaintiff sues or relies upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time, deliver the document or a copy thereof to be filed with the plaint.
(ii) Where he relies on any other document, not in his possession or power, as evidence in support of his claim, he shall enter such documents in a list to be appended to the plaint].
(4) The plaint shall be accompanied by as many duplicate copies thereof including the Schedule and the lists of documents referred to in subsection (3), as there are defendants in the suit, for service upon the defendants."
"17. Provisions of Evidence Act and Code of Civil Procedure not to apply.--- (1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872, and the Code of Civil Procedure, 1908 (except sections 10 and 11) shall not apply to proceedings before any Family Court..
(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts."
9. Mere reading of the aforesaid provisions of law clearly shows that it was not necessary that respondent No,2/plaintiff must have mentioned her cause of action in the contents of plaint. Even otherwise the title and the contents of the plaint clearly show cause of action. It is a settled law that document must be read as a whole as law laid down by this Court in Mian Nawaz Sharif's case PLD 1993 SC 473. The aforesaid plea raised by the learned counsel for the petitioner has no force in view of law laid down by this Court in the following judgments:--
(i) Zulfiqar Ahmad's case 1996 MLD 1997; (ii) Nazar Ahmad's case 1996 MLD 2017 and (iii) Mirza Shahid Baig's case 2004 CLC 1545.
10. It is a settled law that First Appellate Court has all the powers of trial Court and therefore, First Appellate Court was justified to reexamine/re-appreciate the evidence on record as the law laid down by the Privy Council in N.S. Venkatagiri Ayyanger's case PLD 1949 PC 26. The First Appellate Court, as mentioned above, had reversed the findings of fact with cogent reasons and the learned High Court was justified not to disturb the finding of fact while exercising constitutional jurisdiction.
The judgment of the High Court is in consonance with the law laid down by this Court in Syed Azmat Ali's case PLD 1964 SC 260. Both the Courts below have given concurrent findings of fact duly recorded against the petitioner after proper appreciation of evidence and this Court, normally, does not interfere in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the Constitution as the law laid down by this Court in Malik Muhammad Ishaque's case PLD 1977 SC 109.
11. It is also a settled proposition of law that constitutional I jurisdiction is always a discretionary in character. He who seeks equity must come with clean hands. Keeping in view the conduct of the petitioner, we are not inclined to exercise discretion in favour of petitioner who had not paid any maintenance to the respondent No,2/ plaintiff without any justification as observed by the Courts below.
12. In view of what has been discussed above, this petition has no merit and the same is dismissed.
Leave refused.