1. MAHMOOD AHMAD BHATTI, J.--- Muhammad Hanif, the petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenging the validity of the judgments and decrees dated 18-7-2005 and 18-3-2008 passed by learned Judge Family Court, Kabirwala and learned Additional District Judge, Kabirwala District Khanewal, respectively.
2. 2.The facts, in brief, are that Mst. Tasleem Akhtar and Muhammad Anees, respondents Nos.2 and 3 instituted a suit for maintenance against the petitioner, contending that respondent No.2, Mst.
3. Tasleem Akhtar was married to the petitioner/defendant on 13th September, 1999, and a son, Muhammad Anees was born to them. However, she was turned out of the house by the petitioner some 26 months prior to the institution of the suit. It is pertinent to mention that the suit was filed on the 26th March, 2005.
4. 3.The petitioner entered appearance and denied the assertions of the plaintiffs, maintaining that respondent No.2 (plaintiff No.1) left his house of her own accord, and she stubbornly has refused to perform her marital obligations, with the result that she is not entitled to any maintenance.
5. 4.Sincethepre-trialreconciliationsoughttobebroughtabout by the learned Judge Family Court failed, he fixed interim maintenance of two plaintiffs at the rate of Rs.1,500 a month in terms of section 17-A of W.P. Family Courts Act, 1964. At the same time, following two issues were framed by learned Judge Family Court, Kabirwala on 18-6-2005:--- ISSUES:---
(1) Whether the plaintiffs are entitled to a maintenance allowance, if so, at what period and at what rate? OPP.
6. (2)Relief.
7. 5.Following the framing of issues on 18-6-2005, the hearing of the suit was adjourned to 18-7-2005, when the following order was passed by the learned Judge Family Court, Kabirwala. `On the last date of hearing, the defendant was directed to pay the interim maintenance allowance of Rs.1,500 to the plaintiff but today he failed to pay the interim maintenance allowance. Hence, the right of defence of the defendant is hereby struck off and the suit of plaintiffs is hereby decreed in femur of the plaintiffs under section 17-A Family Courts Act. No order as to costs.'
8. 6.Thepetitioner/defendantdidnotchallengetheorderdated 18-6-2005 by which he was ordered to pay the maintenance to the plaintiffs at the rate of Rs.1,500 a month, but he preferred to assail the validity of the order dated 18-7-2005, whereby his defence was struck off under section 17-A of the W.P. Family Courts Act, 1964 and the suit of the plaintiffs/respondents Nos. 2 and 3 was decreed.
9. 7.The appeal instituted by the petitioner herein was dismissed by the learned Additional District Judge, Khanewal Camp at Kabirwala vide judgment and decree dated 18-3-2008 thereby upholding the judgment and decree dated 18-7-2005 passed by the learned Judge Family Court, Kabirwala.
10. 8.It is the contention of the learned counsel for the petitioner that both the judgments and decrees are the outcome of misreading and non-reading of the provisions of law bearing on the outcome of the controversy in issue. He forcefully argues that since respondent No.2 has herself chosen not to spend her life with the petitioner, thereby denying to perform her marital obligations, she is not entitled to any maintenance under the Islamic law. He further submits that the learned Judge Family Court was not bound to decree the suit straightway. The law conferred discretion upon the Court to strike off the defence or to provide a further opportunity to the defendant so as to enable him to pay interim maintenance. He stresses that the legislature used the word "May" instead of "shall", which makes the intention of the lawmakers manifest that it is not imperative and mandatory for the Court to strike off the defence and decree the suit forthwith.
11. 9.Learned counsel for respondents Nos.2 and 3 has opposed this petition, contending that the petitioner was provided ample time and opportunity to obey the order dated 18-6-2005, whereby he was required to pay interim maintenance at the rate of Rs.1,500 a month to the two plaintiffs.
12. According to him, in this day and age, when the prices of the commodities are rising rapidly, it was but a meager amount, and it could not by any stretch of imagination be regarded as a reasonable maintenance ordered to be paid by the petitioner. He points out that if the petitioner felt aggrieved by the order dated 18-6-2005, he could have challenged the same by filing an appeal before the learned District Judge Khanewal under section 14 of the W.P. Family Courts Act, 1964. Even in the instant writ petition, he has not challenged the validity of the order dated 18-6-2005, with the result that the same has attained finality. Against this backdrop, it does not lie in the mouth of the petitioner to argue that respondent No.2, Mst. Tasleem Akhtar was not entitled to the maintenance on account of her living separately from the petitioner. He also underscores that the very fact that the petitioner has not instituted a suit for conjugal rights to date negates his assertions that it is respondent No.2 who is not willing to live with the petitioner. On the contrary, it is the petitioner who has deserted and left his wife and minor son, Muhammad Anees, respondent No.3 in the lurch.
13. 10.I have heard the learned counsel for the parties at length and examinedtherecordappendedtothewritpetition,withtheir assistance.
14. 11.This petition is not maintainable for the sole reason that the learned Judge Family Court, Kabirwala, District Khanewal was not arrayed as one of the respondents, in spite of the fact that the petitioner felt aggrieved by his order dated 18-7-2005. It is pertinent to mention here that while learned Judge Family Court, Kabirwala was left out, the petitioner made learned Additional District Judge, Kabirwala a party to the writ petition. As for the merits of the case, it was rightly pointed out by the learned counsel for respondents Nos.2 and 3 that since the petitioner did not challenge the validity of the order dated 18-6-2005, whereby he was ordered to pay a maintenance at the rate of Rs.1,500 a month to respondents Nos.2 and 3, he stands estopped to question the correctness thereof in the instant writ petition and to argue that respondent No.2 was not entitled to maintenance on account of her living separately from the petitioner. As regards the order dated 18-7-2005, it cannot be declared to have been passed without jurisdiction and lawful authority. The learned Judge Family Court, Kabirwala rightly insisted upon implementing his order dated 18-6- 2005. Again, section 17-A of W.P. Family Courts Act, 1964 empowers him to strike off the defence of a defendant, who fails to pay the interim maintenance ordered by him and to decree the suit of the plaintiff right away, without recording evidence. No doubt, the law as it stands is so designed as to confer the discretionary powers on the learned Judge Family Court, but he has to exercise this discretion to decree or not to decree the suit, keeping in view the attending circumstances and the conduct of the defendant. Since both the learned courts below concurrently found that the petitioner was not entitled to any indulgence, the suit of the plaintiffs/respondents Nos.2 and 3 was rightly decreed, and no exception whatsoever can be taken to the judgments and decrees dated 18-7-2005 and 18-3-2008 passed by learned Judge Family Court, Kabirwala and learned Additional District Judge, Kabirwala, District Khanewal, respectively.
15. 12.The upshot of the above discussion is that the petition being without merits, is hereby dismissed.