' RAJA SAEED AKRAM KHAN, J.---This appeal, by leave of the Court, has been directed against the judgment of the Shariat Court dated 13-9-2013, whereby the appeal filed by the respondent has been accepted.
2. The brief facts culminating into this appeal are that the appellants filed a suit for recovery of maintenance allowance against the respondent before the Judge Family Court, Mirpur on 14-12- 2011, alleging ,therein that the defendant-respondent is their father. It is alleged that previously, a suit for the maintenance allowances was filed against the defendant-respondent. The Family Court decreed the suit and ordered for payment of maintenance charges, to the tune of Rs,5000 per month on 8th September, 2005. The defendant-respondent deposited the maintenance charges up to year 2015. The plaintiff-appellants filed another suit in the Family Court for enhancement of the maintenance allowance, alleging that due to rising costs of living they cannot be maintained themselves in the amount awarded by the Court. The Judge Family Court vide its judgment and decree dated 31-12-2012 enhanced the maintenance allowance from Rs,5,000 to Rs,11,000 per month. The trial Court also ordered for payment of Rs,72,00 as maintenance charges from the period, i,e,, 14-12-2011 to 14-12-2012. Feeling aggrieved, the respondent filed an appeal in the Shariat Court, which has been accepted on the ground that the subsequent suit was not maintainable till 2015, as the defendant-respondent has already deposited the maintenance charges in the Court till that time. The learned Judge also passed the order that the subsequent application filed by the appellants was not maintainable and dismissed the same.
3. Sheikh Masood Iqbal, Advocate, the learned for the appellants, argued that the judgment of the Shariat Court is against law and the facts of the case, which is not sustainable in the eye of law. He argued that the learned Shariat Court fell in error while holding that the second suit is not competent rather the same can be filed on the ground due to rise in living costs. The learned counsel contended that the decree of maintenance allowance at the rate of Rs,5,000 was passed in the year 2005.
After the lapse of more than eight years, the education expenditures including the daily commodity rates have been increased more than five times and it is impossible to maintain three children within the amount decreed by the trial Court in the year 2005, which is required to be enhanced. He argued that the learned Shariat Court also fell in error while not taking into account that the financial position of the respondent is very sound and he is running the business of bakery in a shop and six employees are working under him. He argued that the respondent is earning a handsome amount from his business and he is in a position to pay at least Rs,5,000 per month to each minor, therefore, the decretal amount awarded by the trial Court is inadequate in the prevailing situation. He argued the learned Shariat Court has ignored all these aspects, while vacating the judgment and decree of the trial Court passed in the second suit. The learned counsel contended that the findings recorded by the Shariat Court, while setting aside the order dated 9-9- 2005 are also against law. He requested for acceptance of appeal.
4. On the other hand, Hafiz Fazal-urRehman Dar, Advocate, the learned counsel for the respondent, strongly opposed the arguments advanced by the learned counsel for the appellants, while arguing that the judgment passed by the Shariat Court is perfect and legal, therefore, no interference by this Court is warranted under law. He argued that the learned Shariat Court rightly held that the second suit was not competent, therefore, the learned Shariat Court was fully justified to vacate the judgment and decree of the trial Court passed in second suit. He argued that the defendant-respondent is facing a great financial crisis and he was forced to work as a labour in the bakery. The learned counsel stated that the appellants failed to bring any material on the record in support of their version that the defendant-respondent is carrying his business at high level. He argued that the defendant-respondent is already bearing the expenditure of the children of his deceased brother along with his wife. He further argued that the defendant-respondent alone is earning for 11 members of the family. He maintained that the defendant-respondent have no other source of income except, to work in the bakery, from where he is drawing the salary of Rs,6,000 per month. He further argued that all the saving has already been drawn from the joint account by the former wife of the defendant-respondent. He strongly argued that during the litigation, his whole business became spoiled and due to the financial loss, he was forced to work as a labour in a bakery. The learned counsel drew the attention of this Court towards the statement of Mst. Saima Batool, who hasadmitted the fact that the respondent is bearing the expenditure of the wife and the children of his deceased brother. He contended that the minors are studying in the Government School and getting the free education, therefore, there is no justification to enhance the amount of maintenance allowance. He further maintained that the defendant-respondent after selling out his assets, is continuously paying the decretal amount @ Rs,5,000 per month and he has already deposited the maintenance allowance in the Bank till 2015.
5. We have heard the arguments of both the learned counsel for the parties and gone through the record made available. From the record, it reveals that the defendant-respondent was married with Saima Batool on 22-12-1997. Out of their wed-lock, the appellants, namely, Ali Haider, Ali Bahadar and Ali Qadar were born. Later on, on account of the strained relations between the spouses, the marriage could not remain intact and ultimately ended by way of 'Tallaq'. The appellants filed suit for grant of maintenance allowance through their mother, Mst. Sima Batool and the same was decreed in the result of compromise reached at between the parties and the respondent was agreed to pay the maintenance allowance @ Rs, 5,000 per month and the same amount was decreed by the Family Court on 8-9-2005. The respondent deposited the maintenance allowance @ Rs,5,000 1 per month till 2015 in the Bank. The appellants filed a second suit for enhancement of the decretal amount on the ground that the amount is insufficient and inadequate keeping in view the prevailing situation as the living costs have been increased too much and it is not possible for them to bear the educational expenses within the amount of Rs,5,000. The trial court decreed and enhanced the maintenance allowance to the tune of Rs,11,000 per month challenged before the Shariat Court by way of appeal. The learned Shariat Court accepted the appeal, while vacating the judgment and decree of the trial Court in the following manner:-- "In view of the above, the appeal is accepted and the judgment passed by the learned Family Judge, Mirpur dated 31-12-2012 is vacated. The application filed by respondents before the learned Family Judge on 8-9-2005 for execution of the decree is hereby dismissed."
The question which needs resolution is, whether after possing the decree for maintenance allowance, the second suit was competent before the trial Court or not. The proposition came under the consideration of this Court in the case titled Abdul Khaliq v. Sidra Khaliq and others (Civil Appeal No, 11 of 2013, decided on 31-5-2013), in which this Court has resolved the issue in the following manner:-- "13. The legislature has established the Family Courts for expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected therewith. Under the provision of section 5 of the Family Courts Act, the Family Court is vested with the exclusive jurisdiction to entertain and adjudicate upon the matters specified in the schedule. The matter of maintenance is at serial No,3 in the schedule. Thus, the Family Court has got exclusive jurisdiction relating to maintenance allowance and the matters connected therewith. Once a decree by the Family Court in a suit for maintenance is granted thereafter, if the granted rate for per month allowance is insufficient and inadequate, in that case, according to scheme of law, institution of fresh suit is not necessary rather the Family Court may entertain any such application and if necessary make alteration in the rate of maintenance allowance. Although, these powers are not specifically mentioned in the Family Courts, Act as previously were postulated under the provision section 488, Cr.P.C., but while keeping the whole spirit and scheme of this special enactment and mechanism provided by legislature, especially, while taking into consideration the preamble of the Act, the intention of legislature can be easily ascertained that the Family Court has got powers to entertain such like issues which are connected with the matters specified in the schedule.
Otherwise, very purpose of the establishment of the Family Courts regarding expeditious settlement and disposal of the disputes will be defeated. Therefore, in this case if the respondent- minors feel advised, they may apply to Family Court for enhancement/alteration in per month rate of maintenance allowance. However, this application will not bar the execution of the decree already granted for maintenance allowance.
After going through the above said judgment of this Court, there is no second thought that once a decree by the Family Court in the suit for recovery of maintenance allowance is granted, thereafter, if any dispute regarding the rate for per month allowance arises then it is not necessary to file a fresh suit rather the same can be agitated through a miscellaneous application. As the law is settled on the point that for enhancement of the maintenance allowance, the filing of fresh suit is not necessary, therefore, the suit filed by the appellants in this regard shall be treated as application. Therefore, the finding of the learned Shariat Court in this regard are against the scheme of law as this Court has held in the supra judgment that the main purpose of enacting the Family Court Act is for expeditious settlement and disposal of the disputes regarding all the matrimonial matters and other affairs connected therewith. The Family Court vested with the powers to entertain the matrimonial matters and the other issues connected therewith.
6. Now we advert to the other issue involved in this case regarding the increase in maintenance allowance. It may be observed that a father is under obligation to maintain his children till they attain the age of majority in the case of male and the daughters till they are married. Law does not debar minor children to claim the maintenance allowance even after attaining the age of majority as laid down in a case reported as Omar All Sheikh v. Mst. Shamsunahar Begum (PLD 1967 Dacca 575), it has been observed as under:- " the law permits the children to claim maintenance even after attainment of the age of majority, if they are unable to maintain themselves. In this case, all the children are minors and an agreement made on their behalf depriving the children of their statuary right is not enforceable."
' In another case reported as Alaf Din v. Mst. Parveen Akhtar (PLD 1970. SC 75), it has been observed as under:-- ' Normally a child, after attaining majority, would be physically in a position to maintain itself, for, it would then be capable of earning some kind of a livelihood. But this again is a question which will depend upon the status and circumstances of each individual family. Thus, although the section does not make any reference to the age of majority, it is a consideration which must inevitably be taken into account by the Court when deciding the question as to whether the child is or is not able to maintain itself. Thus an infirm or decrepit or deformed son or daughter may be entitled to claim maintenance even up to a very advanced age, while an able-bodied son or daughter might be deprived of the right it he/she has already fund suitable gainful employment and is in a position to maintain himself or herself.".
However, the children after becoming major if have their independent sources then the father is not bound to maintain them. The decree in the case in hand was passed in 2005 and the defendant-father was order to make the payment of 5,000 per month as maintenance allowance.
Now a considerable time has been elapsed, i,e,, more than 8 years and during this period, the living costs have much been increased. Then the stance taken by the appellants that it is not possible for them to meet the expenditure incurred on the education and other requirements in this meagre amount has substance, therefore, the ground taken by the respondent that his financial position does not permit him to enhance the maintenance allowance is not convincing in nature. The maintenance allowance can be awarded, while keeping in mind the financial position of the respondent. Nothing has brought on the record in rebuttal of the stance taken by his former wife of the respondent in her statement that the respondent is running the business of a bakery in a shop and earring a handsome amount from the business. In absence of any evidence, it cannot be said that he is not in a position to enhance the maintenance allowance. Even otherwise, from the record, it is spelt out that he is already maintaining the children of his deceased brother along with his wife, whereas, it is a paramount duty of the respondent to provide the adequate maintenance to maintain his own children C and there may be no escape from it. Therefore, the stance taken by the respondent is not convincing in nature and the same is repelled.
7. We are conscious that the Court should keep in mind the financial position of the respondent at the time of awarding the maintenance allowance. Therefore, keeping in view the financial and economic position of the respondent and other circumstances, we are intended to make a D reasonable enhancement in the rate of per month maintenance allowance. The maintenance allowance is enhanced from Rs,5,000 per month to Rs,10,000 per month w,e,f, 1-4-2014.
' Resultantly, this appeal is accepted, while setting aside the judgment passed by the Shariat Court.
The judgment and decree passed by the trial Court is restored with the above modification.