' MAMOON RASHID SHEIKH,. J.---With the consent of the parties this petition is being treated as a Pacca matter and shall be decided on the basis of the available record.
2. This petition assails the judgment and decree dated 18-2-2011 passed by the learned Additional District Judge, Pasrur, District Sialkot.
3. The brief facts giving rise to the petition are to the effect that the petitioner and respondent No,2 were married to each other. Out of this wedlock they have one child, a minor daughter who has been arrayed as respondent No,3. Respondents Nos.2 and 3 filed a suit against the petitioner for recovery of Rs,20,000 (as delivery expenses in respect of respondent No,2) and the maintenance of respondent No,3. The learned Judge Family Court, Pasrur through judgment dated 28-9-2010 partially decreed the suit of respondents Nos. 2 and 3 with the result that respondent No,2's claim for delivery expenses was disallowed whereas respondent No,3 was allowed maintenance at the rate of Rs,1500 per month from her date of birth (29-5-2009) till her marriage with annual increase of 15 per cent. Feeling aggrieved respondents Nos. 2 and 3 filed an appeal which was allowed through judgment and decree dated 18-2-2011 passed by the learned Additional District Judge, Pasrur, District Sialkot. As a consequence respondent No,2 was held entitled to recover Rs,15,000 as delivery expenses whereas the maintenance of respondent No,3 was enhanced from Rs,1500 per month to Rs,2000 per month, the period of maintenance and rate of annual increase remained the same.
4. The learned counsel for the petitioner contends that the impugned judgment and decree dated 18-2-2011 has been passed illegally and with material irregularity. It is a result of misreading and non-reading of evidence. The learned appellate Court below ignored the basic principle of law that quantum of maintenance has to be set according to the income and status of the father (in this case the petitioner). Under the law a father is duty bound to maintain his children but according to his financial status and source of income. Further contends that the petitioner has remarried and has a son out of this union. He is serving in the Army as a soldier and his monthly income is Rs,8,000 per month. These factors have not been kept in mind by the learned appellate court below. Further contends that the impugned decree has been passed in ignorance of the law as laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as Tauqeer Ahmad Qureshi v.
Additional District Jude, Lahore and 2 others (PLD 2009 SC 760).
5. The learned counsel for respondents Nos. 2 and 3 has defended the impugned judgment and decree. Contends that each case has to be decided on the basis of its peculiar facts and circumstances. Respondents Nos. 2 and 3 were able to establish and prove their case beyond any shadow of doubt. The learned trial Court had erred in not awarding the delivery expenses to respondent No,2. The learned trial Court had similarly erred in not awarding the proper rate of maintenance to respondent No,3. This error was corrected by the learned appellate Court below.
Contends that the rate of annual increase is in accordance with the law.
6. I have considered the arguments advanced at the bar and have also gone through the documents placed on the record.
7. It is settled law that this Court in exercise of its extraordinary constitutional jurisdiction does not normally undertake reappraisal of A evidence. The judgments of the learned Courts below are based on the evidence brought on the record and have been passed after due consideration of the same. This Court whilst not being inclined to go into the findings of fact arrived at by the learned Courts below cannot help but notice that the 15 per cent annual increase granted to the minor respondent No,3 is on the higher side. This observation is based on the ratio of the judgment of the Hon'ble Supreme Court of Pakistan quoted at the bar by the learned counsel for the petitioner. In that particular case the question of executability of a decree for maintenance and yearly enhancement came up for consideration. The learned Courts below had awarded the minor 20 per cent annual increase in the maintenance. On the showing of the learned counsel for the appellant in that case it was established that the total maintenance payable to the minor with the annual increase of 20 per cent as decreed would come to Rs,6.88 crores. The Hon'ble Supreme Court, therefore, whilst taking note of this factor decided as under:-- "9. We have given our anxious consideration to the entire facts and circumstances of the case. The minors are entitled to be maintained by the father in the manner befitting the status and financial condition of the father and for this reason the Family Court is under an obligation while granting the maintenance allowance, to keep in mind the financial condition and status of the father. It has to make an inquiry in this regard. It cannot act arbitrarily or whimsically. Furthermore, at the same time, the unjust enrichment of the minors cannot be permitted at the cost of the father. In the present case, there is nothing on the record to show that the appellant is a rich man and can afford paying at the end, Rs,6.88 crores to the minors towards their maintenance. We have also noticed that the Family Court had no basis before it and had no criteria for awarding 20% annual increase in the maintenance allowance granted by it and it gave no reasons for ordering such an increase. It thus acted arbitrarily, illegally and whimsically in awarding such an exorbitant annual increase in the maintenance allowance. There was no justification for the annual increase of maintenance allowance at the rate of 20%. It was not a reasonable exercise of authority by the Family Court.
' It is well-settled that the Judicial Officers are required to act justly, and fairly and reasonably in discharge of judicial functions. The argument that school fees of the minors are more than the rate of maintenance allowance by the Family Court should not be interfered with, has also no force. The mother, if so desires or can afford, may put the children in expensive schools but the father's obligation to maintain the minors is only to the extent of his status and financial condition and the Family Court must keep these factors in mind while granting maintenance allowance.
10. There is no cavil to the proposition that the executing Court cannot go behind the decree but at the same time the executing Court can look into the questions whether the decree or part thereof is executable or in executable and if for any reason the decree has become inexecutable, the executing Court is empowered to declare so and if a part of the decree is inexecutable and that part is severable from other part(s) of the decree than the executing Court is empowered to refuse the execution of the inexecutable part of the decree and may proceed with the execution of the rest of the decree. In the present case, there is nothing on record to show that the- appellant has the means to pay the increase as ordered by trial Court. As far the future prospects, the minors can always approach the Family Court for the increase in the maintenance allowance due to any change in the circumstances. The impugned judgments of the High Court and the Courts below are, therefore, not sustainable to the extent of annual increase of 20% in the maintenance allowance of the respondent's minors who shall be entitled only to the 5% annual increase in such an allowance as offered by learned counsel for the appellant, which in our opinion will meet the ends of justice.
' In view of the above mentioned, this appeal is partly allowed. The annual increase of 20% over and above the maintenance allowance of Rs,3,000 per month per child ordered by the Family Court affirmed by the appellate Court and High Court is reduced to 5% annual increase with an observation that minors can always approach the Family Court for the increase in their maintenance allowance due to any change in any circumstances. There are, however, no orders as to costs."
8. In the instant case it has not been established on the record that the petitioner is equipped with the means to discharge his liability towards the annual increase in the maintenance of respondent No,3 as ordered by the learned Courts below.
9. Being in respectful agreement with the judgment .Of the Hon'ble Supreme Court of Pakistan whilst, declining to interfere in the award of delivery expenses to respondent No,2 and the quantum of maintenance awarded to respondent No,3 this Court is inclined to decrease the rate of annual increase in respondent No,3's maintenance from 15 percent per annum to 5 per cent per annum.
10. It is further observed that the minor respondent No,3 shall be at liberty to approach the Family Court for increase in her maintenance due to any change in any circumstances.
11. This petition is accordingly disposed of with the above observations.