1. ' AZIZULLAH M. MEMON, J.---This Constitutional Petition has arisen out of judgment dated 30-6-2001, passed by V-Additional District & Sessions Judge Karachi South in Family Appeal No,76/2000 (Mst.
2. Mubarak Sawal and another v. Saifuddin) and another Family Appeal No,84 of 2000 (Saifuddin v.
3. Mst. Mubarak Sawal & another) whereby the said two consolidated Family Appeals stand decided in the following terms:-- "From the above evidence of the respondent it is crystal clear that the respondent is getting profit of Rs,60,000 per month out of the saving certificates, he is also getting 12% profit from the amount of Rs,46,00,000 lying in the joint Saving Account (Saving Certificates), he visits abroad one in the three/four years and he is a member of Karachi Club, and maintaining high status in the society, therefore, he is a man of means and it is his sole liability to provide maintenance to the appellant No, 1 w.e.f, July, 1994 till the date of divorce, i.e, 15-10-1995, as well as for three months of the Iddat period and to provide maintenance to the respondent No,2 who is a student of M.B.,B.S. w.e.f, July, 1994 till the completion of his education and is capable of earning himself. I, therefore, see no merit in Family Appeal No,84 of 2000 as such the same is hereby dismissed.
4. ' Coming to the Family Appeal No,76 of 2000, I am not going to touch the rate of maintenance granted by the learned trial Court in favour of the appellant No,1 and direct the respondent to pay maintenance of Rs,2000 per month to the appellant No,1 w.e.f, July, 1994 to 15-10-1995 plus for three months of Iddat period, from 15-10-1995 to 15-1-1996, (for 18/1-2 months). So far the rate of maintenance granted by the learned trial Court in favour of the appellant No,2 is concerned, it is at very low scale. In these days of dearness of Rs . 2,000 are insufficient to meet with even the pocket expenses of a student of M.B.,B.S, what to talk of bearing educational expenses. I, therefore, direct the respondent to pay Rs,8,000 per month as maintenance to the appellant No,2 w.e.f, July, 1994 till the date of this judgment and onwards till the appellant No,2 completes his education and is capable to earn himself for his maintenance, with this modification, Family Appeal No,76 of 2000 is disposed of accordingly. The parties are, however, left to bear their own costs."
5. ' The said two Family Appeals were filed against the judgment and decree dated 20-5-2000, passed by learned II-Family Judge Karachi South in Family Suit No,125/1996 and learned trial Court disposed of the said family Suit in the following terms:-- "a. Past maintenance of plaintiff No,1 (Ex-wife) is granted w.e.f, July, 1994 till the date of divorce viz 15-10-05 and for another three months of Iddat period, at the rate of Rs,2000 p.m. (two thousand) p.m.
(b) Past maintenance of plaintiff No,4 (son) is granted w.e.f, July, 1994, till the date of judgment Rs,2000 p.m. (two thousand) p.m. And future maintenance at the same rate, till the completion of his M.B.,B.S. And able to maintenance himself.
(c) Maintenance of twin daughters (Plaintiffs Nos.2 and 3) is disallowed."
6. ' Learned counsel for the parties were heard by me on 5-9-2008 and the judgment was reserved in this constitutional petition.
7. ' Vide order dated 14-10-2008, the petitioner was issued direction to obtain certificate from the competent authority of saving certificate department of the government and to file the same with his own affidavit as to the actual amount being earned/received by him against the profit 'from such saving certificates, and as to the share actually coming to his own self out of such profit in order to properly appreciate the arguments advanced by learned counsel for the contesting parties.
8. ' The petitioner filed his affidavit (in compliance of the said order passed by this Court) in the following terms:-- "3. That I have invested a sum of Rs,30,00,000 (Rupees thirty lac only) for the period of 10(ten) years in the Behbood Saving Certificate on 15-7-2006 bearing profit @ 11.52% per cent per annum, which comes to Rs,28,800 (Rupees twenty eight thousand eight hundred only) per month.
4. That this amount was paid from 15th August, 2006 to 15th October, 2008, and thereafter the said certificates were renewed for the balance period with revised profit the rate 15% per annum, which comes to Rs,37,500 per month which is payable from 15th November, 2008, till the expiry of the certificate. Photostat copy of the certificate issued by National Saving Centre, Clifton, Karachi dated 22-10-2008 is annexed herewith and marked as annexure "P".
5. That out of a sum of Rs,37500 (Receivable from 15th November, 2008), the following is the expenses incurred by me. MEDICAL EXPENSES MONTHLY (a)Heart disease monthly Rs.2000 (b)Prostrate Medicine `PROSTAKAN' 2 Boxes.Wife's medicine monthlyRs.760 (c)Hepatitis `C' Hakim medicine Rs.5000 (d)Test for Hepatitis every 3 months (Rs.3000) Rs.1000 (e)Fooding monthly Rs.20,000 (f)Utilities approx Rs.6,000 (g)Exigency expenses including Doctor fee Rs.34,760 Rs.2,740 Total Rs.37,500
6. That under the above circumstances, it will be seen that I am not in a position to maintain my son out of the profits/income received by me. I may further state that I have no other source of income and I am retired person and dependent solely on the profit received as aforesaid.
9. ' The copy of the certificate issued by the Officer Incharge, National Saving Certificate, Clifton Block- 7, Karachi, is also annexed, which prima facie supports the contention of the petitioner to the effect that the profit amount of Rs,37,500 is being earned by the petitioner per month out of the investment made by him in shape of saving certificates.
10. ' Learned counsel for the respondents has filed the counter-affidavit to the contents of the said affidavit of the petitioner.
11. ' Suffice it to say that the parties were afforded with full opportunity to adduce their respective evidence in support of their pleas and that the learned trial Court as well as the appellate Court took necessary pains for the purpose of properly assessing the evidence so produced by the parties; the respondents failed to produce any other evidence excepting the income out of saving certificates now shown by the petitioner being earned by him. The only question to be entered upon and replied to by this Court is as to whether or not the petitioner is in a position to pay towards maintenance of his son, who admittedly has now attained the age of majority and as asserted is studying in 4th year of M.B.,B.S. Class for the purpose of passing the said examination and to become a medical practitioner/a Doctor.
12. ' It is a settled principle of law that a father is bound to pay to the children/son only up to the age of attaining the majority and that after the son attains such age of the majority, the son would not be entitled to receive the maintenance allowance from the father, excepting in the exceptional circumstances, burden of which lies upon the son to prove that the circumstances around him are such that though he has A attained the age of majority, even then the father would be liable to continue to pay to him towards maintenance, as otherwise the future well being of the son would be at stake, and as and when such extraordinary circumstances as proved by the son, the Court may in its discretion direct the father to further go on paying the maintenance allowance to the son, even though he may have attained the age of majority.
13. ' But, in the present case, as stated hereinabove, the parties were afforded with full opportunity to produce their respective evidence as to the extent of the income being earned by the petitioner/father and further that the certificate, now produced by the petitioner along with his affidavit, states that the maximum amount of his income is Rs,37,500 per month being the profit out of investment made by him in shape of saving certificates.
14. ' The petitioner has specifically pleaded that the entire amount, so being earned by him, is being expended by him for his medical treatment and purchase of the medicines for his own self as well as for his ailing wife, and that he does not have any other earning so as to be in a position to pay anything towards his grownup/adult son.
15. ' Under the circumstances, the respondent No,4 (growing up son of the petitioner) is not entitled to have any maintenance from the petitioner, nor he has shown the petitioner to be having any extra income so as to continue paying any maintenance allowance to the said respondent No,4.
16. ' Hence, this Constitutional Petition is hereby allowed and the impugned judgments passed by learned two Courts below are hereby set aside with regard to award of maintenance allowance to respondent No,4 and the suit partly stands dismissed in so far as the future maintenance allowance for the respondent No,4/son is concerned.