M.A. ZAFAR, J.--- This order will dispose of Writ Petition No. 10896-08 filed by Tariq Naseem (defendant) and Writ Petition No. 12938-08 filed by Mst. Fakhra Shaheen and Habiba Tariq @ Maliha Tariq (plaintiffs) being aggrieved from the judgment and decree dated 28.2.2008 passed by the learned Judge Family Court Gujrat which was affirmed in appeal by the learned Additional District Judge Gujrat with certain modifications vide judgment and decree dated 10.7.2008.
2. Brief facts of the case are that Tariq Nasim petitioner was married to Mst. Fakhra Shaheen respondent No. 1 according to Muslim Rites on 28.4.1987 and out of the wedlock Miss Habiba Tariq @ Maliha Tariq respondent No. 2 was born on 23.1.1988. After being desertion, both the respondents filed a suit for maintenance allowance on 5.5.2000 in which the present petitioner entered appearance and while denying his liability stated that hp had been residing out of country and for the last 5/6 years, he is in Pakistan and the suit has been filed mala fide in order to cause harassment to him. It has been further averred in the written statement that the petitioner had divorced the respondent No. 1 as far back as on 18.4.2000.
From the divergent pleadings of the parties, following issues were framed:--- "(1) Whether the plaintiff is entitled to recover maintenance, if so, at what rate and at what condition ? OPP
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether the suit has been filed just to harass the defendant? OPD
(4) Relief."
3. During trial, Fakhra Shaheen respondent No. 1 appeared as PW-1 and produced college certificate Ex.P-2 whereas the present petitioner appeared as DW-1 and submitted his affidavit Ex.D-1. The other witnesses Nadeem Ahmed while appearing as DW-2 tendered his affidavit Ex.D2 as well, as receipt of payment Ex.D-3, photocopy of the divorce deed Mark-A, photocopy of bill Mark-B, photocopy of lqrar Nama Mark-C, photocopy of the interim order Mark-D and thereafter the present petitioner closed his evidence. The respondents Nos. 1 and 2 claimed maintenance at the rate of Rs. 25,000/- per month to each of them alleging that the petitioner's income is Rs.
2,50,000/- per month. They claimed maintenance allowance for the last ten years before institution of the suit as well.
4. On the other hand, the plea of the petitioner is that during his stay in America, he has been regularly paying maintenance allowance to the respondents Nos. 1 and 2. Subsequently, when he returned to Pakistan, he had been paying interim -maintenance to his minor daughter in the Court.
5. The learned Judge Family Court vide judgment and decree dated 28.2.2008 granted past maintenance of six year at the rate of Rs. 5000/- per month to each plaintiff keeping in view the admission of the petitioner that he used to earn Rs. 60/70,000/- per month in America.
6. Both the parties being aggrieved from the judgment and decree passed by the learned Judge Family Court, filed cross appeals before the learned District Judge Gujrat which were heard by the learned Additional District Judge Gujrat, who vide judgment and decree dated 10.7.2008 modified the same to the effect that both the respondents will be entitled to get maintenance at the rate of Rs. 5000/- from the institution of the suit and Fakhra Shaheen will be entitled to get. The same uptill her Ibdat period while Habiba Tariq @ Maleeha Tariq will be entitled to get the same till the age of 21 years.
7. There is no cavil with the proposition that the husband is liable to maintain his wife during the subsistence of marriage and no exception can be taken in this regard by the husband to neglect his wife and similarly it is the duty of the father towards his legitimate child to maintain and the girl is entitled to get maintenance allowance from her father till her marriage as provided in Section 370 of the Muhammadan Law by Sir D.F. Mulla. There is no evidence on record that during the petitioner's stay in America, he has, paid any maintenance allowance to both the respondents.
During cross-examination, the petitioner has admitted that no receipt for payment of maintenance allowance was available with him except one document Ex.D-2 and he used to send the money through Hundi but no receipt in this regard was brought qua sending the money through Hundi.
The petitioner has contracted second marriage and according to the allegations, he had unlinked to look after the present respondents.
8. Resultantly, there is no force in the petition filed by Tariq Naseem petitioner of Writ Petition No. 10896/08, which is accordingly dismissed. However, by partially allowing the Writ Petition No. 12938/08 filed by Mst. Fakhra Shaheen etc., I modify the judgment and decree and direct that Tariq Naseem respondent judgment-debtor will make payment of maintenance allowance to his daughter Habiba Tariq @ Maliha Tariq till her marriage with the enhancement of Rs. 500/- per annum. .