' SYED KAZIM RAZA SHAMSI, J.--- By this order .I intend to dispose of Writ Petition No,4309 of 2009 and Writ Petition No,9469 of 2009 due to commonality of the judgments assailed therein.
2. Both these constitutional petitions are directed against a consolidated judgment dated 12-2- 2009 passed by Mr. Muhammad Zafar Abbas Sabzwari, learned Additional District Judge, Lahore whereby he maintained the decree dated 24-3-2008 passed by Madam Asma Tahseen, learned Judge Family Court, Lahore partially decreeing the suit for the recovery of dowry articles and the recovery of maintenance allowance fixed at the rate of Rs,7,000 per month for plaintiff No,2 and Rs,4,000 for plaintiff No,3. It was also observed by the learned Judge Family Court that the arrears of the maintenance allowance from August, 2002 to June, 2003 and September 2003 to October, 2004 would also be recoverable. The increase of 10 per cent per annum was also granted over the maintenance allowance.
3. Mst. Tanveer Kausar instituted a suit on her behalf and on behalf of her two minor children for the recovery of maintenance allowance and the dowry articles. The marriage between the spouses was performed on 26-10-1995 whereafter the relations between the parties became strained and she has to reside with her parents from 10-8-2002 to 1-6-2003. According to her dowry articles valuing Rs,3,88790 were also given to her at the time of her marriage. The relations between the parties became normal when she returned to her husband's house but thereafter the parties could not pull on for any longer. She alleged that the defendant is an officer in Pakistan Army and is earning monthly salary of Rs,30,000, as such he could pay the maintenance allowance at the rate of Rs,8680 and Rs,5,000 for plaintiffs Nos.2 and 3 respectively per month. She claimed her own dower of Rs,5,000.
4. This suit was contested by the defendant controverting the allegations that dowry of huge amount was brought by the plaintiff at the time of her marriage. It is also the defence of the defendant that the majority of the dowry articles were purchased by him much after the marriage.
He also denied that his salary was Rs,30,000 and he could pay the amount of maintenance as claimed in the plaint.
5. The learned trial court out of the pleadings of the parties framed relevant issues and recorded the evidence of the parties. Thereafter the court reached at the conclusion that the majority of the articles mentioned by the plaintiff in her plaint were purchased by the defendant much after the marriage, therefore, it is not proved that those items were given to the plaintiff at the time of her marriage. However, the suit to the tune of Rs,500 the value of Diamond Supreme Foam was granted, the maintenance of Rs,7,000 and Rs,4,000 for the minors was also determined with the increase of 10 per cent annually. The court also determined the maintenance of the plaintiff for the periods mentioned by the plaintiff in her plaint.
6. Both the parties being dissatisfied with the findings of the court assailed the same in the appeals. The learned First Appellate Court concurred with the findings of the learned Judge Family Court and dismissed both the appeals. Again both the parties feeling aggrieved by the judgment of the First Appellate Court have assailed the same in these petitions.
7. Parties have been heard at length and record has been examined.
8. The findings of the learned Judge Family Court agreed by the learned First Appellate Court in respect of the claim of the dowry are based upon sound appreciation of evidence on record. It was established through the receipts which were tendered in evidence by the plaintiff showing the purchase of items after the marriage of the parties for example Exh.P.20 shows that 21 Inch TV was purchased on 26-2-2006 while the marriage was solemnized between the parties on 26-10-1995 i.e. After about eleven years from the date of marriage. Similarly the other items were also shown to be purchased by the defendant latter in time. The purchase of articles much after the marriage shows that these items were never given to the lady at the time of her marriage, that is why the husband purchased the said items to meet with the need of those articles. The findings of the learned First Appellate Court on Issue No,1 as well as of learned Judge Family Court are based upon sound appreciation of evidence.
9. It is beyond imagination how the court of first instance determined the maintenance of the lady for period 10-8-2002 to 1-6-2003 and 17-9-2003 till date of filing of the suit particularly when there is no evidence on the record to show the reason for living apart by the parties. It is a matter of common knowledge that the army personnel usually are posted in the far off areas where it is not possible for them to take their families, may by, for this reason, the lady was not taken by the husband to the place of his posting. This fact finds support from the receipt Exh.P.20 which shows that TV was purchased by the husband on 26-2-2006 obviously for the use of his family and not for his single use. Similarly the purchase of dowry articles Exhs.P.1 to 7 supports this view. In this view of the matter, the determination of the maintenance of the periods mentioned above appears to be unjustified.
10. The contention of learned counsel for the petitioner that the courts below hive fixed the exorbitant amount of maintenance which the petitioner is unable to meet with in his available source is no ground for changing the rate of maintenance allowance. In the days of high prices in the view of this court, this amount is sufficient to meet with at least the part of the needs of the minors as the petitioner has to maintain his other family also as he has contracted second marriage and out of that wedlock two more children have born. However, the levy of 10 per cent increase in the maintenance allowance by the courts is not supported by any statute. The West Pakistan Family Court Act, 1964 does not provide the levy of the rate of enhancement while granting maintenance even to the minoRs, Although section 17-A was added which was subsequently further amended in the year 2010, by directing the courts to fix the interim maintenance of the minors at the first date of hearing and in case of failure by the father to provide the said minors before 14th of each month, decree should follow forthwith but the legislature did not add any levy of increase in maintenance annually. The legislatures may add the levy of rate of enhancement of the maintenance allowance but it appears that intentionally it was not done. Without statutory sanction, the courts have no jurisdiction to itself impose any condition of enhancement in the rate of maintenance. Thus, the levy of 10 per cent per annum on the grant of maintenance allowanceis set aside
11. The upshot of the above discussion is that the petition filed by Mst. Tanveer Kausar i.e. Writ Petition No,9469 of 2009 having no merits is dismissed while the petition filed by Rana Muhammad Ashraf i.e. Writ Petition No,4309 of 2009 is allowed in the above terms partially modifying the decree of courts below regarding setting aside of the condition of levy .Of 10 per cent increase in the maintenance allowance dismissal of the suit filed for the recovery of dowry articles and maintaining the rate of maintenance allowance fixed by the courts below.