SH. AHMAD FAROOQ, J. --- Through the instant petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside the judgment and decree dated 26.8.2010, whereby the learned Additional District Judge, Kasur, while accepting the appeal, filed by respondent No. 1, has reversed the judgment and decree dated 25.6.2010, passed by the learned. Judge Family Court, Kasur in favour of the present petitioners.
2. Briefly, the facts for adjudication of the /is in hand are that petitioner No. -1/Mst. Shakeela Bibi and respondent No. 1/Tariq Hussain were married on 12.4.2006 and out of their wedlock petitioner No. 2/Maroof Ahmed was born. The relations between the spouses on becoming strained, a suit was filed by the petitioners for recovery of their maintenance allowance, maternity charges of Rs.
20,000/-, and dower amount of Rs. 70,000/-. The suit was decreed in favour' of the plaintiffs/present respondents whereby they were held entitled to receive maintenance allowance @ Rs. 2,500/- per month each from the date of institution of the suit till they are legally entitled for the same. It has also been ordered that maintenance allowance of the minor son/petitioner No. 2 shall increase 10% annually. The learned Family Court has also declared petitioner. No. 1 entitled to receive delivery expenses of Rs. 20,000/-, which she had incurred on the birth of the minor son/petitioner. No..
2. However, the claim of the plaintiff/petitioner No. 1 to the extent of dower amount of Rs. 76,000/- was not allowed. On appeal by the defendant/present respondent No. 1, the decree of the Family Court was reversed to the extent of allowing maintenance allowance and delivery charges to the present petitioner No. 1. Dissatisfied with the judgment of the learned Additional District Judge, Kasur, the present Constitutional petition has been filed by the present petitioners.
3. The instant petition challenges the impugned judgment dated 26.8.2010, passed by the learned Additional District Judge, Kasur, only to the extent of refusing maintenance. The learned Appellate Court has disallowed the prayer of petitioner No. 1 qua the grant of maintenance allowance, mainly on the grounds that she has failed to perform her marital obligations towards her husband/respondent No. 1 and unless she resides with her husband voluntarily for performance of marital obligations, she is not entitled to claim any maintenance allowance; and that perhaps she demands some protection/conditions for her settlement with her husband, despite the continuation of their ties. It is not disputed that superior Courts of this country have persistently held that a wife living apart from her husband without any lawful excuse or reason is not entitled to claim maintenance allowance. The plaintiff/petitioner No. 1 wife claimed in her suit that respondent No. 1 has been giving physical beating to her and that she had earlier withdrawn her suit On the assurance of the defendant/respondent No. 1 that he would mend his ways. Even during the cross- examination, she showed her inclination to reconcile with her husband if it is assured that she would not be treated with cruelty by her husband. On the other hand, it is not proved by any piece of evidence that respondent No. 1/husband is ready to reconcile with his wife amicably. He has not even filed any suit for restitution of conjugal rights against petitioner No. 1. In absence of any evidence that the wife is living apart from her husband without any lawful excuse, the learned Appellate Court was not justified to hold her disentitled for the grant of maintenance allowance.
4. As regards the delivery expenses, the learned Appellate Court has observed that the petitioner/wife has failed to bring on record any evidence to prove the expenses incurred on the delivery of the child, who was born in a Government hospital.
Birth of the minor child/petitioner No. 2 in a hospital is not denied by respondent No. 1. However, only the expenses claimed by petitioner No. 2 as delivery charges are disputed by him. No doubt the minor son of respondent No. 1 was born in Lady Willingdon Hospital,. Lahore, which is controlled by the Provincial Government, but it is also not believable that no expenses were incurred at the time of delivery of the said child. In these days of high inflation, incurring a sum of Rs. 20,000/- towards the pre-delivery and post-delivery medical treatment is not a phenomenon and exaggerated.. The husband/respondent No. 1 during the statement as P.W. 1 has admitted that the child was born in the house of petitioner No. 2, meaning thereby that the expenses of the delivery whatever were born by petitioner No. 1 herself. In view of the available evidence, there was no reason-with the learned Appellate Court to refuse the grant of delivery expenses in favour of petitioner No. 2.
5. For what has been discussed above, the instant petition is accepted and the impugned judgment and decree of the Appellate Court dated 26.8.2010 is set aside. Resultantly, the judgment and decree of the learned Judge Family Court, Kasur, dated 25.6.2010 is restored. .