MUHAMMAD FARRUKH IRFAN KHAN, J. --- By means of this order, I propose to decide the afore- mentioned writ petition as well as writ petition No. 1315/11 filed by respondent No. 1 Mst. Maimoona Almas as both these arise out of the consolidated judgment of the learned lower Appellate Court.
(Hereinafter Saif Ullah shall be referred to as petitioner, whereas, Mst. Maimoona Almas shall be referred to as respondent).
2. Briefly the facts of the case are that the respondent filed a suit for recovery of maintenance allowance, medical expenditures, recovery of dowry articles as per list and gold ornaments weighing 11 Tolas. The learned Judge Family Court, vide impugned judgment dated 06.11.2010 decreed the suit in the following terms:- "In view of my findings on above issues, it is observed that plaintiff No. 1 is entitled to receive dowry articles mentioned at list Ex.P2 of serial No. 1 to serial No. 105 and also entitled to receive maintenance allowance for the period of 'Iddat' @ Rs. 3000/- per month and medical expenses as claimed in the plaint whereas 'the plaintiff No. 2 is held entitled to recover maintenance allowance from the defendant @ Rs. 3000/- per month from the date of institution of suit, with 10% annual increase. However, the claim of plaintiff No. 1 to the extent of recovery of gold ornaments is rejected."
4. Being aggrieved both the parties filed appeals before the learned lower Appellate Court who vide consolidated judgment and decree dated 01.04.2011 dismissed both the appeals with modification to the effect "that the articles mentioned at Sr.No. 83 to 85 of list Exh. P2 are excluded."
Being dissatisfied both the parties filed aforesaid Constitutional petitions.
5. Learned counsel for the petitioner submits that the judgments and decrees of the learned Courts below are based on surmises and conjectures and result of mis-reading and non-reading of the evidence; that the petitioner has proved through reliable evidence that the dowry articles were returned to respondent in the presence of witnesses; that learned Courts below erred in law while awarding maintenance allowance to the minor at such an exorbitant rate; that the respondent could not prove the financial status of the petitioner as alleged in the plaint; that the petitioner is not in a position to pay maintenance allowance to the minor at such high rate; that the learned Judge Family Court also passed order for annual enhancement of minor's maintenance at unjustifiable rate of 10% per year which has illegally been upheld by the learned lower Appellate Court; that there is no provision in the Family Courts Act, 1964 for imposition of annual increase in the maintenance allowance. He relied on cases reported as Khadeeja Bibi and others v. Abdul Raheem and others (2012 SCM R 671). Learned counsel further contended that all the expenses on birth of the minor were defrayed by the petitioner but the learned Courts below misconstrued the evidence available on the record while awarding these expenses to the respondent; that the evidence in this case has not been properly evaluated and the conclusions drawn therefrom are liable to be struck down.
6. Conversely, learned counsel for respondent submits that the judgments and decrees of the learned Courts below to the extent of non-suiting the respondent from recovery of gold ornaments are result of misreading and non-reading of the evidence; that the respondent proved her stance that the gold ornaments are in possession of the petitioner through confidence inspiring evidence which was overlooked by the learned Courts below while recording their findings on this issue; that the learned lower Appellate Court was not justified in modifying the decree of the learned Judge Family Court by excluding items mentioned at Sr. No. 83 to 85 of list Ex.P1 in particular :when CLR, the petitioner himself admitted possession of dowry articles; that the respondent is entitled to recover maintenance for the period of desertion which has illegally been declined by the learned Courts below.
7. I have heard the arguments of the learned counsel for the parties and gone through the record.
8. As far as quantum of maintenance allowance to the minor is concerned, the version of the petitioner in his written statement was that his monthly income was round about 6/7 thousand per month, however, during cross-examination he admitted his monthly salary as Rs. 9,944/-. He further admitted 50% enhancement in his basic pay and enhancement in medical allowance, therefore, the learned Judge Family Court after due appreciation of the evidence available on the record awarded maintenance @ of Rs. 3000/- per month to the minor which has rightly been maintained by the learned lower Appellate Court.
9. Learned counsel for the petitioner while referring the afore- mentioned case-law laid much stress that there is no provision in the Family Courts Act, 1964 for annual enhancement of maintenance. I have had the opportunity to go through the aforesaid esteemed judgment of the Hon'ble apex Court and am of the considered view that the facts and circumstances of the said case were distinct and distinguishable inasmuch as in that case income of the respondent/father was not ascertainable without recording of evidence. The relevant extract of the above judgment is reproduced as under:--- "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."
Here in this case the petitioner is a government employee and admittedly his salary and other allowances are increased on a periodic. Basis with sometimes by a quantum leap, as has been 50% enhancement in his earlier pay. This fact finds support from own statement of the petitioner wherein he categorically admitted enhancement in his monthly salary and medical allowance.
Therefore, factual basis for enhancement was available to the Courts below which was duly considered by them in awarding 10% annual increase in the maintenance allowance of the minor.
Furthermore, the Hon'ble Supreme Court of Pakistan in a recent case reported as Abdul Razzak v.
Shabnant Noonari and others (2012 SCM R 976) declined to grant leave to appeal against the order of the High Court which had refused to intervene in the concurrent judgments of the Courts below C.LR. inter alia awarding annual increase in maintenance. The Hon'ble apex Court observed as under:--- "6. ' We have considered the submissions of the learned Advocate Supreme Court for the petitioner, and perused the material placed on record, which reveals that all the three Courts below have given due attention to the pleadings of the parties, evidence adduced by them before the Family Court and after proper appreciation of the evidence, awarded the decree for maintenance etc. In favour of respondent No. 1. If is for this reason that the High Court, while exercising its jurisdiction under Article 199 of the Constitution, which is equitable and discretionary in nature, has also declined lo Intervene in the matter.
7. For the foregoing reasons, we do not find any substance in this petition for leave to appeal, which is accordingly dismissed and ."
For what has been discussed above, in my opinion the learned Judge Family Court has rightly granted 10% annual enhancement keeping in view the periodic increase in the monthly salary/income of the petitioner considering ever growing needs of the minor alongwith the rampant inflation in the country, and the learned counsel for the petitioner is unable to point out any illegality or irregularity in the findings of the learned lower Courts below warranting interference by this Court in its Constitutional jurisdiction.
10. Now coming to the question of delivery expenses. It is the claim of the petitioner that he defrayed all the expenses incurred at the birth of the minor but in this connection in order to support his stance, he could not produce any reliable evidence. In his written, statement the petitioner stated that respondent tried her level best to restrain him from meeting with the minor and he had to file application for his custody. In such acrimonious circumstances it is beyond comprehension that he would have paid medical expenses on the birth of the minor. Furthermore, the petitioner has also failed to produce any documentary evidence like an official docket or advance cash deposit receipt of the hospital from which it could be inferred that he got the respondent admitted in the hospital, therefore; findings of the learned Courts below on this issue are un-exceptional.
11. As far as findings on the issue of recovery of dowry articles are concerned, according to the version of the petitioner he returned the dowry articles to the respondent in the presence of witnesses. In order to substantiate his version he himself appeared as DW1 and also got recorded the statement of one Ahmad Zarar as DW2. According to the version. Of DW2 he shifted the articles to the parent's house of respondent in April 2008. Which is contradictory to record because in the suit for restitution of conjugal rights, the petitioner on 23.07.2008 got recorded his statement that dowry articles of respondent were C.L.R. lying in his house. Learned Judge Family Court after due appreciation of the evidence available on the record had passed the impugned judgment and decree which was unjustifiably modified by the learned lower Appellate Court. The respondent has proved through reliable and convincing evidence that she is entitled to a decree for recovery of dowry articles as per list Ex.P1. For the reasons discussed above, findings of the learned lower Appellate Court on this issue are set aside and those of the learned Judge Family Court are restored. - 12. As to the claim of the respondent regarding recovery of 11 tolas gold ornaments, the learned Judge Family Court while declining her prayer to this extent has mainly relied upon the earlier decision of the learned Judge Family Court dated 23.07.2008 in a suit for restitution of conjugal rights. The relevant extract of his judgment is reproduced as under:--- "It will not be out of place to mention here that in the said statement defendant admitted other claims regarding dowry articles, dower and maintenance allowance of plaintiff No. 1. Statements of the parties were recorded at the time of compromise and prior to institution of his suit. Had the defendant been in possession of gold ornaments at that time he would have admitted their possession and, would have promised for return of the same to plaintiff No. 1 as he did in regard to other claims of plaintiff No. 1 regarding dowry articles, maintenance allowance and dower."
I have gone through the aforesaid order of the learned Judge Family Court in the restitution suit which was compromised and have noticed that the learned Judge in that suit has not touched upon the claim of respondent regarding recovery of gold ornaments and dowry articles by categorically observing that on these claims there are differences amongst the parties which should be resolved after recording the evidence. In view of this disagreement floating on the surface of the record, the learned Judge Family Court while passing the impugned judgment was not justified in depriving the respondent from gold ornaments on the basis of an ill-founded assumption which is not supported by the record or evidence produced by the petitioner.
13. The respondent herself appeared as PW1 and tendered her affidavit Ex.P1 wherein she categorically stated that the gold ornaments were in possession of the petitioner. Learned counsel for the petitioner neither cross-examined the respondent on this point nor put any suggestion that the gold ornaments were in her possession as such version of the respondent stands unrebutted.
No doubt ordinarily gold ornament remain in the possession of ladies but at the same time one may not be oblivious of the fact that this situation prevails generally when relationship between a couple is cordial and the wife leaves the house of husband of her own accord. In the present case, the 'respondent in her affidavit Ex.P1 narrated that the petitioner expelled her from his house in wearing apparels after beating her, whereas, on the other hand, the petitioner in his affidavit Ex.D1 neither rebutted this version of the respondent nor stated that at the time of desertion the respondent took gold ornaments with her, therefore, in the absence of any rebuttal, the learned Courts below were not justified in depriving the respondent from the gold ornaments. For the above reasons, findings of the learned Courts below on this issue are set aside and the respondent is held entitled to recover 11 tolas gold ornaments or in alternate its present market price from the petitioner.
14. So far as claim of the respondent regarding past maintenance allowance is concerned, it is evidence from the record that in the suit of the petitioner for restitution of conjugal rights compromise was effected between the parties pursuant to' which dower amount was paid to respondent but despite this she refused to perform matrimonial obligations, therefore, the learned Courts below have rightly held that the respondent being a disobedient wife was not entitled to recover maintenance allowance during the period of desertion. Findings of the learned Courts below to this extent need no interference and the same are hereby maintained.
15. For what has been discussed above, writ petition No. 1210/11 filed by the petitioner is dismissed and writ petition No. 1315/11 filed by the respondent is partially accepted in the above terms. No order as to costs.
Petition partially accepted.