' MUHAMMAD AZAM KHAN, C.J.---The titled appeal by leave of the Court arises out of the judgment of the Shariat Court dated 14th February, 2013, whereby appeal filed by the appellant, herein, has been dismissed.
2. Necessary facts for disposal of this appeal are that the respondents filed a suit for recovery of maintenance charges against the appellant, herein, in the Court of Senior Civil Judge vested with powers of Family Court, Kotli, on 26th March, 2011. It was alleged that respondent No,1 was married to the appellant on 21st February, 2005. During the period she populated with the husband, his attitude remained cruel and after physical violence, he ousted her from the house but her parents have been sending her back. During that period two children were born. One child was died. She again became pregnant. Her husband got a medical report and when he attained the knowledge that she has a female baby in her womb, he after beating ousted her from the house. After necessary proceedings the trial Court decreed the suit through the judgment and decree dated 31st October, 2012. Dissatisfied from the decree of the trial Court, the appellant filed an appeal in the Shariat Court of Azad Jammu and Kashmir. A learned single Judge in the Shariat Court dismissed the appeal through impugned judgment dated 14th February, 2013.
3. Haji Ch. Muhammad Anwar, Advocate, the learned counsel for the appellant argued that the judgment of the Shariat Court is against law and the record. The respondent failed to prove her case from cogent and reliable evidence. He argued that the plaintiff was not ousted from the house by the appellant. She voluntarily left his house, therefore, she is not entitled for maintenance charges. Both the Courts have delivered the judgments without going through the record. It is a clear case of misreading and non-reading of evidence. He argued that the appellant has no source to pay the maintenance charges awarded by the Family Court. The learned counsel argued that in para 14 of the written statement, he specifically alleged that he is a poor Rikshaw driver. He has the capacity to pay only Rs,700 per month. He is not able to pay any amount more than that of Rs,700 per month. The trial Court failed to frame any issue and record findings of fact, therefore, the judgment is not maintainable. The learned counsel lastly argued that the plaint was not signed by the plaintiff, so it was liable to be dismissed on the sole ground.
4. While controverting the arguments, Mr. Javaid Najam-us-Saqib, Advocate, counsel for the other side, argued that the judgment of the Shariat Court is perfectly legal. The Family Court passed the decree after going through the whole evidence and the Shariat Court affirmed the same. There is no misreading or non-reading of the evidence. He requested for dismissal of the appeal.
5. We have heard the learned counsel for the parties and perused the record. The plaintiff, respondent No,1, alleged in her suit that after solemnization of marriage, the attitude of the defendant, appellant herein, remained friendly up to one year but after the birth of a female child, the attitude of the defendant changed and many a time he ousted her after beating and she claimed maintenance charges of Rs,5000 per month. In para 14 she specifically claimed Rs,5000 per month. The defendant in the written statement refuted the allegations and in reply of para 14 alleged that he is a poor Rikshaw driver. He can only pay Rs,700 per month. The trial Court framed only one issue whether plaintiffs are entitled, for payment of maintenance charges, if yes how much and since when OPP. No issue in respect of capacity of the defendant, appellant herein, whether he has a source to pay Rs,5000 per month was framed. Although it has been observed in a number of cases by this Court that non-framing of issues is not vital for a case if the parties are vigilant on the point and they have led the evidence of issue then the question, can be resolved without framing the issue. We have perused the evidence. Both the parties have led the evidence on the point but the trial Court failed to resolve the question in respect of capacity of the defendant to pay the maintenance charges. It was the duty of the trial Court to resolve the question of capacity of the defendant to pay the maintenance charges. In a recent judgment titled Mst.
Amreen v. Muhammad Kabeer (Civil Appeal No,111 of 2012, decided on 2411 March, 2014) along with four other appeals, it has been observed as under:-- "24. It is on record that the respondent is working abroad and has contracted a second marriage.
Husband to maintain his wife is conditional with performance marital obligations. According to the clear command and of Allah, it is the fundamental duty of a wife to guard the reputation, property of her husband in his absence and also her own virtue.
"14. No doubt, a husband is under the obligations to maintain his wedded wife but at the same time the Holy "Qur'an" and "Sunnah" has cast some duties and obligations upon the wife which are originated from Verse No,34 of Surah Al-Nisa, which is as follows:-- {{ARABIC TEXT}} ' The command of the Allah in this verse is very much clear that:-- ' Men are protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore, the righteous women are devoutly obedient and guard in (the husband's) absence what Allah would have guard them.'
Thus, it is clear that duty of the husband to maintaion his wife is conditional with performance marital obligations According to the clear command and of Allah it is the fundamental duty of a wife toguard the reputatuin property of her husband in his absence and also her own virtue.
Same like, in verse No,7 of Surah Al-Talaq, the Almighty Allah has commanded a principle that the maintenance allowances should be according to the financial position of the husband. Verse No,7 reads as follows:- {{ARABIC TEXT}} 'Let the man of means spend according to his means and the man whose sources are restrained, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what he has given him. After a difficulty, will soon grant relief.'
' There are number of the sayings of the Holy Prophet (Peace Be Upon Him) which are of binding nature. There is consensus of opinion between the eminent Islamic Scholars that the right of maintenance of a wife is not unconditional rather it is conditional with discharging the obligations of the contract of marriage."
Thus, it was mandatory for the trial Court to record findings regarding the capacity of defendant, appellant herein, whether 'he is in a position to pay the maintenance charges claimed by the plaintiffs or not. Both the parties have adduced evidence on the said point, This Court has powers to decide the question itself. Although, it was the duty of the trial Court to record findings on the issue but remand of the case will further prolong the litigation and there will be undue burden on the parties. It is the practice of this Court that if there is evidence of the parties on record and the issue has not been decided by the lower Court then this Court itself may decide the same. It was observed in the case titled Arif Mehboob and 7 others v. Zahir Ahmed alias Muhammad Zahid and 10 others (2007 SCR 410) as under:-- "....It will be of no use to give false hope to a party by remanding the case, when conclusion after protracted litigation will be same, given the facts of the case."
' In the case titled Abdul Rashid v. D.E.O. And another 1998 PLC (C.S.) 304, it was observed as under:- - "11. Having dealt with various objections and counter arguments in the preceding part of this judgment, it may be observed that the Service Tribunal did not record its findings on the merits of the case of the parties, because it dismissed the appeal on a technical ground. In such a situation the case should have been remanded to the Service Tribunal for applying its mind on the merits of the case but where in the facts and circumstances of the case a finding can easily be given on the merits of the case our practice has always been to decide the case ourselves."
' We have decided to resolve the question by ourselves. Firstly, we will take up the question whether respondent No,1 is entitled for maintenance charges or not. The counsel for the appellant has argued that there is misreading and non-reading of record, therefore, the judgment on the point is not maintainable. It was alleged by the plaintiff that the appellant ousted her from the house after beating her. She has alleged that a female child was born due to which the defendant was annoyed that why the female child has born. Again, when she became pregnant her husband got conducted her ultrasound and when it came to his knowledge that she again having a female child in the womb, he after beating her ousted from the house. The defendant, appellant herein specifically taken the position that he had never ousted her from the house. They were living happily. On 21st April, 2010 in the night his wife administered to him some intoxicant mixed in the tea and he became unconscious, whereupon she took the gold ornaments, clothes and other articles and left the house. In the morning, when he became conscious he found her wife missing from the house. He started the search of her and ultimately on 24th April, 2010 he filed a report at Police Station, Thothal. After some days it was found that his wife has gone to her parents house. In para 14 of the written statement, he specifically alleged that he is a Rikshaw driver and has meager source to maintain his wife. He has only the capacity to pay Rs,700 per month to the plaintiffs. The trial Court and the Shariat Court have not considered this aspect of the case. The trial Court decreed the suit while observing that the plaintiff is living with her parents from 21st April, 2010. She left the house due to cruel attitude of the defendant. The Shariat Court affirmed the findings.
6. We have carefully perused the statements of all the witnesses. There is no misreading or non- reading of evidence and from the evidence it is proved that the attitude of the appellant towards the plaintiff was cruel, he ousted her from the house after beating many a time and her parents sent her back to the house of the defendant but she was mercilessly beaten and ousted from the house. A wife is entitled for maintenance charges if she obeys the husband and ready to live in the house of her husband but if she leaves the house of the husband voluntarily then she is not entitled for maintenance charges. It was observed in an unreported judgment of this Court titled Mst.
Amreen v. Muhammad Kabeer (Civil Appeal No,111 of 2012, decided on 24th March, 2014) along with four other appeals as under:-- "17. Thus, it can safely be concluded that it is the duty of the husband to maintain a wife till she is faithful to him and ready to live with him in his house and perform her part in this respect but if a wife abandons the residence of his husband voluntarily without any reason and is not ready to live with him as his wife then she is not entitled to past or future maintenance. It is further observed that if a wife is ousted from the house by husband or she is forced to leave the house of her husband due to cruelty, physical or mental, of the husband or other inmates of his family, she is entitled for maintenance charges."
The plaintiff and minors are entitled for maintenance charges. Now the question which needs resolution is whether the appellant has the capacity to pay the maintenance charges or not. The plaintiffs, respondents herein are the wife and daughters of the appellant. They have claimed only Rs,5000 per month, as Rs,2000 for the wife and Rs,1500 each for minors. The plaintiffs alleged in the suit that the defendant has the capacity to pay Rs,5000 while, the defendant claimed in the written statement that he is a Rikshaw driver and cannot pay Rs,5000. It is settled law that the husband or father cannot be burdened for payment of maintenance charges more than that of his capacity and maintenance charges shall be ordered to be paid by a husband according to his capacity. It was observed in a recent judgment of this Court titled Mst. Amreen v. Muhammad Kabeer (Civil Appeal No,111 of 2012, decided on 24th March, 2014) along with four other appeals as under:-- "24. It is on record that the respondent is working abroad and has contracted a second marriage.
He is maintaining his second wife. He is a resourceful person. The Court has power to grant maintenance charges keeping in view the financial position of the father and his economic resources."
7. It is an admitted position that the appellant is a Rikshaw driver. He claims that his monthly income is Rs,5000 to Rs,6000 per month while it is claimed by the plaintiffs that he earns Rs,15000 to Rs,20000 per month. The statements of the witnesses were recorded in the year 2011 wherein the plaintiffs claimed that their monthly expenses are amounted to Rs,15000 per month and witnesses have stated that their monthly expenses are Rs,6000 to Rs,7000 per month. The plaintiffs demanded only Rs,5000 per month. In the present age, due to rising costs of living, it is very difficult to maintain a wife and two minors in a meager amount of is.5000 per month but the plaintiff herself demanded Rs,5000 per I month, therefore, the trial Court correctly concluded that they are entitled for the same. A Rikshaw driver has the capacity to pay the maintenance charges of Rs,5000 per month.
8. We have also considered the argument of the counsel for the appellant that the plaint was not signed by the plaintiff herself, therefore, it was liable to be dismissed. In a recent judgment we have considered the non-signing of plaint by the plaintiff himself/herself and concluded that if a plaint is signed by the counsel for the plaintiff, it is sufficient compliance of Rule 3 of the Azad Jammu and Kashmir Family Courts (Procedure) Rules, 1998. It was observed in a case titled Rabia Akhtar and another v. Muhammad. Ayub and 2 others 2013 MLD 16 as under:-- "9. We have also considered the argument that the plaint is signed and verified by the counsel for the plaintiff and not by the plaintiff himself as such it is not competently filed, thus it merits dismissal. Rule 3 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998 deals with the institution of the plaints. For proper appreciation we deem it proper to reproduce the said rule which is as under:-- ' Institution of plaint.---(1) A plaint under subsection (1) of section 7 shall be in writing, signed and verified by the plaintiff and shall be presented to the Court, having jurisdiction under Rule 4 of these rules by the plaintiff or through a counsel and were the plaintiff is a female by her agent.
(2) The plaint under sub-rule (1) shall also contain the following particulars:--
(a) name of the Court in which the suit is brought and the fact showing that it has jurisdiction;
(b) name, description and place of residence of the plaintiff;
(c) name, description and place of residence of the defendant so far as can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to the effect;
(e) the fact constituting the cause of action;
(f) the nature of the claim and valuation of the claim with particulars in brief and the relief claimed.'
A perusal of Rule 3(1) reveals that a plaint under subsection (1) of Section 7 shall be in writing, signed and verified by the plaintiff and shall be presented in the Court having jurisdiction under Rule 4 of these rules by the plaintiff or through a counsel. The rule further lays down that where the plaintiff is a female, the suit may be filed by her agent. Although the word "shall" has been used in Rule 3(1) in the Family Courts Procedure Rules, 1998, but there is no provision that non-compliance of such rule will result into rejection of plaint or any other penalty. It is a celebrated principle of interpretation of statutes that in absence of any penal provision in the rules, in case of noncompliance, the operation of rules shall be directory in nature and not mandatory. In a case titled Saeed-ud-Din v. IIIrd Senior Civil Judge (East) Karachi and another (PLD 1992 Karachi 302) it was observed as under:-- ' In absence of any penal provision in the Rules in case of noncompliance of Rule 4 of the Sindh Muslim Family Courts Rules, 1965, sub-rule (2) will be taken to be directory in nature.'
' The non-signing of plaint and verification by the plaintiff himself will not affect the filing of the suit.
The suit was competently filed in the. Family Court."
' Thus, the argument has no force, it is hereby repelled.
The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.