' SHUJAAT ALI KHAN, J.---This constitutional petition arises out of the judgment and decree, dated 10-11-2011, passed by the learned Judge Family Court, Gujranwala, which was partially modified by the learned Additional District Judge, Gujranwala vide judgment and decree dated 14-3-2012.
2. The facts forming background of the instant petition, in brief, are that the petitioner was married to respondent No.3 on 11-2-2009. Out of the wedlock, an offspring, namely, Mahnoor (respondent No.4) was born. Due to strained relations, respondent No.3 shifted to her parental house. Thereafter, respondent No.3 filed a suit for recovery of dower and maintenance allowance for herself as well as for the minor (respondent No.4). The petitioner contested the said suit by filing written statement.
Since the pre-trial reconciliation proceedings were abortive, interim maintenance allowance of respondent No.4 was fixed at the rate of Rs.1500 per month. Out of the divergent pleadings of the parties, following Issues were framed by the learned Judge Family Court, on 13-4-2011:
(1) Whether the plaintiffs are entitled to decree for recovery of maintenance allowance, if so, at what rate and for which period? OPP.
(2) Whether the plaintiff No.1 is entitled to decree for recovery of dower as prayed for? OPP.
(3) Whether the suit of the plaintiff is liable to be dismissed as per preliminary objections raised by the defendant in his written statement and defendant is entitled to decree for restitution of conjugal rights as prayed for? OPD.
(4) Relief.
3. To prove their respective pleas, the parties led their evidence inasmuch as respondent No.3/plaintiff herself appeared as P.W.1 presented her affidavit-inevidence (Exh.P.1) whereas Muhammad Anwar was examined as P.W.2 and also tendered his affidavit-in-evidence (Exh.P.2). In . Addition to their oral evidence, the plaintiffs also tendered in evidence Clearance Certificates qua properties No.B-V-3-S-139/Shop and B-I16-S-81/R.H. (Exh. P.4 and Exh.P.5) photocopy of Birth Certificate of Mahnoor minor/respondent No.4 (Mark-A), photocopy of Result Card of respondent No.3 (Mark-B), Cash Memos. And Prescription by the Doctor (Mark-C to Mark-H), Prescription of Dr. Musarrat Imtiaz Batth (Mark-I), Consultant Fee Receipt dated 3-4-2011 (Mark-J), Cash Memos.
Regarding purchase of medicines dated 3-4-2011 (Mark-K and Mark-L), Cash Memo. Dated 23-4- 2011 (Mark-M), Cash Memo by Shuja Medical Store (Mark-N), medical prescription by Dr. Muhammad Abdul Basit (Mark-P), Cash Memo. Of Shuja Medical Store (Mark-Q), medical prescription of Dr. Muhammad Tariq (Mark-R), Cash Memo. (Mark-S), medical prescription by Dr. Attaur-Rehman Alvi (Mark-T), medical prescription of Adil Hospital (Mark-U), Cash Memo. Dated 21- 4-2011 (Mark-V), Cash Memo. Dated 5-12-2011 (Mark-W), Cash Memo. Dated 6-11-2011 (Mark-X) and bill consisting upon 17 pages (Mark-Y/1 to Y/17).
4. In rebuttal, the petitioner himself appeared as DW.1 and examined Asad Mehmood Mughal and Muhammad Suleman as DW-2 and DW-3 who presented affidavits-in-evidence as Exh.D.2 and Exh.D'.3 respectively.
5. After going through the evidence of the parties, oral well as documentary and hearing their learned counsel, the learned Judge, Family Court, Gujranwala, while dismissing the suit to the extent of recovery of dower, partially decreed the same to the extent of maintenance allowance for respondents Nos.3 and 4 and fixed the same at the rate of Rs.6000 each per mensem w.e.f. 16-8- 2010 by holding entitlement of respondent No.3 till subsistence of marriage including her Iddat period and respondent No.4 till her marriage with 20% annual increase.
5. Being dissatisfied, with the _judgment and decree of the learned trial 'Court, both the parties filed independent appeals before the District Judge, Gujranwala. The said appeals were entrusted to the learned Additional District Judge, Gujranwala, who vide consolidated judgment and decree dated 14-3-2012 dismissed the appeal of the petitioner and partially accepted that of respondent No.3 holding her entitled to recover, Rs.300,000 as dower from the petitioner . Whereas dismissed the same to the extent of prayer for enhancement of maintenance allowance. Being aggrieved by the judgment and decree passed by the learned Additional District Judge, the petitioner has instituted the present petition.
6. Learned counsel for the petitioner contends that the learned appellate Court wrongly upset the well-reasoned finding of the learned trial Court that as per column No.15 of the Nikahnama six tolas gold ornaments valuing Rs.150,000 were paid to respondent No.3 at the time of Nikah. Further submits that the findings of both the courts below that petitioner is owner of `Amir Cloth House' are unfounded as he is only a salesman there. Adds that sufficient material was available on record to show that, in act, the petitioner was only a salesman at `Amir Cloth House' and was, thus, not earning Rs.100,000 per month as claimed by respondent No.3 and as such the maintenance allowance granted to her as well as her minor daughter does not commensurate with the income of the petitioner.
7. Learned counsel for the respondents, on the other hand, supported the impugned judgments and decrees of the learned Courts below. He, while drawing attention of this Court towards paragraph 5 of the written statement filed by the petitioner, states that since the petitioner himself averred that he had paid dower amount of Rs.1,000 as well as six tolas gold ornaments to respondent No.3 at the time of marriage, burden to prove the said assertion was on the petitioner but he miserably failed to do so. In this regard, he relies on "Abdul Sattar v. Mst. Kalsoo (PLD 2006 Karachi 272)" and "Mst. Shazia Kausar v. Muhammad Ahmed and another (2006 CLC 251)". Further adds that conduct of the petitioner speaks volumes about his irresponsible and careless attitude as neither he made any effort for reconciliation nor filed a suit for restitution of conjugal rights, hence he was bound to maintain the respondents even during the period of desertion. In this respect, he relies on the cases of "Mst. Farida Khanum v. Deputy Commissioner/ Collector, Okara and others (2004 MLD 798)".
8. I have heard the learned counsel for the parties at length and have also perused the record with their able assistance.
9. Firstly, taking up the 'question of maintenance, I am of the view that neither any hard and fast rule can be laid to adjudge the exact need of a child of the age of respondent No.4 nor any conclusive proof is available on record. Thus, the learned Courts below were left with no other option but to take into consideration the routine expenses of growing child and financial status of the petitioner and to fix the maintenance of the spouse of the petitioner as well as his daughter.
The learned Judge Family Court, after considering the situation prevalent in the society and prices of commodities of daily use, fixed the maintenance allowance at the rate of Rs.6,000 per head per month with annual increase of 20%. The said findings were affirmed by the learned Appellate Court.
Even otherwise, Asad Mahmood Mughal (DW-2), who according to the petitioner is owner of a shop in the Bazar where `Amir Cloth House' is situated, Stated in unequivocal words that petitionerAmir being the only son Of his father-Abdul Rahim, is owner of 'Amir Cloth House'. Even a layman knows that a cloth merchant cannot be dubbed as poor that he cannot. Pay Rs.6000 per month towards the maintenance of his spouse and daughter. Even otherwise, in this arena of price-hiking, an amount of Rs.6000 cannot be termed as exaggerated one. Thus, the findings of both the courts below qua awarding of maintenance to respondents No.3 and 4 are unexceptionable. However, the annual increase awarded by the learned Judge Family Court and affirmed by the learned Additional District Judge is bit on higher-side. While dealing with the question of annual increase in maintenance the Hon'ble Supreme Court in the case reported as "Muhammad Ali and 11 others v.
Province of KPK and others (2012 SCMR 673)" has inter alia held that-- "(3) The other question as to automatic annual increase in the maintenance for the minor children has been dealt with by the High Court in para 7 of the impugned judgment. At present, there appears to be no factual basis brought on record to justify such annual increase. The learned counsel for the petitioner, however, states that he will be in a position to lead evidence in the form of financial statistics including the Sensitive Price Index ("SPI") to persuade the trial Court to grant annual increase in line, with such statistical data.
(4) In the foregoing,circumstances, the appellate judgment dated 23-2-2010 and the impugned judgment dated 4-8-2011 are set aside. The matter is remanded to the trial Court which shall proceed to frame specific issues relating to the dowry articles as well as enhancement of maintenance awarded to the minor children and shall thereafter allow the parties to lead evidence before deciding the case afresh. During this period, maintenance at the rate of 2,000 per month shall continue to be deposited by the respondent No . 1/grandfather "
' Similarly, in the case of "Tauqeer Ahmad Qureshi v. Additional District Judge and 2 others (PLD 2009 SC 760)" the apex Court has declared that-- "In view of the above mentioned, this appeal is partly allowed. The annual increase of 20% over and above the maintenance allowance of Rs.3000 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."
' After going through the afore-quoted judgments of the august Supreme Court I am of the view that the 20% annual increase is not justified in view of the age of the minor. Thus, the same is reduced to 10% with the observation that the minor would be at liberty to recourse to proper proceedings for enhancement of maintenance due to any change in the circumstances.
10. As far as the Issue of recovery of dower is concerned, respondent No.3 claimed dower in the shape of six tolas gold ornaments or in alternate its present market value i.e. Rs.300,000. Though the petitioner denied the said claim of respondent in his written statement by taking the plea that dower amount of Rs.1,000, in addition to six tolas gold ornaments, was paid to her at the time of marriage but during the course of proceedings in the appeal before the learned Additional District Judge, the petitioner, on 18-2-2012, made statement to the following effect:- {{URDU TEXT}} ' In token of authenticity of the aforesaid statement, not only the petitioner put his signatures but his counsel also verified the same. However, the petitioner did not return the ornaments to respondent as he covenanted in his above-quoted statement. It is important to observe over here that if the petitioner had already handed over gold ornaments to respondent No.3 then why he undertook to return the same to her. Even otherwise, despite repeated queries learned counsel for the petitioner badly failed to wriggle out of the same. In this scenario, the only inference, which can possibly be drawn, goes against the petitioner. Thus, the learned appellate Court has rightly held that defence of the petitioner, in that regard was lacking and even the statements of DW.1, DW.2 and DW.3 were not confidence-inspiring. Moreover, Learned counsel for the petitioner has neither referred to any material on record nor advanced any legal or plausible reason for disbelieving the material relied upon by the learned Appellate Court while holding respondent No.3 to be entitled to dower. Similarly, learned counsel for the petitioner has not pinpointed any misreading or non- reading of any evidence.
11. In the light of above discussion, there is no factual or legal infirmity in the impugned judgments, therefore, I do not find any reason to interfere with the concurrent findings of the Courts below on the issue of maintenance and that of Appellate Court on the issue of dower in exercise of constitutional jurisdiction. Consequently, with the modification of annual increase of maintenance from 20% to 10%, this petition is dismissed being devoid of any merits with no order as to costs.