MUHAMMAD FARRUKH IRFAN KHAN, J.--- By means of this order, I propose to decide the aforementioned writ petition along with connected Writ Petition No.173/13 filed by respondent No.3 Dr. Shafique Ahmad as both these arise out of the single order of the learned Appellate Court dated 08.12.2012. Hereinafter Mst. Nabeera Shafique shall be referred to as petitioner, whereas, Dr. Shafique Ahmad shall be referred to as respondent.
2. Briefly the facts of the case are that the petitioner filed a suit for recovery of maintenance allowance against the respondent who contested the same by filing written statement. Out of the divergent pleadings of the parties, learned Judge Family Court framed necessary issues, recorded evidence of the parties and vide impugned judgment dated 11.05.2012 decreed the suit in the following terms: - "In view of what has been discussed above, suit of the minor plaintiff for recovery of maintenance allowance is decreed at the rate of Rs.25,000/- per month with 10% annual increment from the last preceding three years i.e. 01st May, 2008 till filing of this suit and in future at the same rate till her marriage in favour of the minor plaintiff and against the defendant with cost." 3.Being aggrieved the respondent preferred appeal before the learned Appellate Court in which the petitioner also filed cross-objections which were decided by Mr. Anjum Raza Syed, learned Addl.
District Judge, Lahore in the following manner:--- "The arguments advanced by the parties are convincing yet certain principles are eternal. It is the father who has to support, protect, upbring and maintain the minor. The maintenance is to be fixed according to the needs of the minor and not according to the income of the father. However, socio economic conditions should be analyzed and maintenance should not be fixed at so high rate that the appellant may start thinking to avoid the same. Therefore, keeping in view the present condition of the parties, the order of learned Trial Court only to the extent of rate of maintenance fixed the learned Trial Court is modified and is hereby reduced from Rs.25000/- to Rs.I5000/- per month for the minor and the rest of the impugned judgment and decree is upheld."
4.Being dissatisfied both the parties have filed aforesaid constitutional petitions.
5.Learned counsel for the petitioner contends that the quantum of maintenance allowance fixed by the learned Appellate Court is insufficient and does not commensurate with the financial status of the respondent; that respondent is an Orthopedic Surgeon serving in Sheikh Zaid Hospital, Lahore in BS-20 and his take home salary in the year 2012 was 1,20,719/- which has now been increased to more than Rs.2,00,000/-; that respondent is also serving privately in Zanib Memorial Hospital and earns handsome amount therefrom; that the petitioner is suffering from Down's Syndrome disease since her birth and is also a heart patient whose treatment is very expensive and she is unable to live within the maintenance fixed by the learned courts below; that the petitioner is getting education in Lahore Cambridge School and her educational expenses are more than Rs.10,000/- per month; that both the courts below while awarding maintenance to the petitioner overlooked strong financial status of the, respondent; that quantum of maintenance of the petitioner is liable to be increased in accordance with the means of the respondent viz-a-viz basic needs of the petitioner.
6.Conversely, learned counsel for the respondent submits that both the courts below committed material illegalities and irregularities while passing impugned judgments and decrees; that while awarding maintenance allowance to the petitioner the learned courts below did not consider the financial status of the respondent as well as his other liabilities; that only source of income of the respondent is his salary out of which he has to maintain his second wife, three children out of second marriage and his ailing mother as such he is unable to pay maintenance allowance to the petitioner at the rate fixed by the learned courts below; that Zainib Memorial Hospital is a trust and the petitioner is serving their without any monetary benefits; that quantum of maintenance allowance is liable to be modified in accordance with the financial status of the respondent.
7.I have heard the arguments of the learned counsel for the parties and gone through the record.
8. Admittedly, the petitioner is a legitimate daughter of the respondent, who is suffering from Dan Syndrome disease since her birth. A painful aspect of the matter is that respondent divorced the mother of the petitioner for the reasons that she is unable to give birth to a healthy child. In doing so respondent did not ponder for a while that in case of separation how the minor who has come in their world and suffering from a permanent disease would survive. Being Muslims it is our firm belief that life, death, disease or health is from the Almighty Allah and no human being could be blamed. The respondent is considered to be a highly educated person in our society but he very callously divorced the mother of the petitioner for the reasons for which she was not responsible. A person having such inhumanitarian attitude does not deserve any leniency from this extraordinary Constitutional jurisdiction. Reliance is placed on case reported as Muhammad Arif' v. Uzma Afzal and others (2011 SCM R 374) wherein it has been laid down as under:-- "There is no cavil to the proposition that the "conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High. Court in exercise of writ jurisdiction is bound to proceed on maxim" he who seeks equity must do equity". Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law under which he is claiming entitlement."
9. Due to Down's Syndrome disease the petitioner is unable to look after herself properly, therefore, she requires a permanent attendant who may look after her. Besides this the petitioner is also a heart patient whose treatment is very costly. It is also not denying the fact that the petitioner is getting education in Lahore Cambridge School where her school fee and transportation expenses were Rs.7,000/- in the year 2011 which might have been increased with the passage of time. There is no cavil to the proposition that none else except the respondent is responsible to maintain her. In case reported as Humayun Hassan v. Arslan Humavun and another (PLD 2013 Supreme Court 557) the Hon'ble Supreme Court of Pakistan has observed as under:--- "There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to section 368 of the Muhammadan Law by D.F. Mullah, maintenance means and include food, raiment and lodging. However, it may be observed that from the very language of above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and capacity of the father to pay."
10. As far as the financial status of the respondent is concerned, it is an admitted fact that he is an Orthopedics Surgeon serving as Professor in BS-20 in Federal Postgraduate Medical Institute, Lahore where his take home salary in the year 2012 was Rs.1,20,719/- which should have been increased at a reasonable rate with the passage of time. It is also not denying the fact that respondent is also rendering his services at Zainib Memorial Hospital. No doubt the respondent has taken the pica that he is serving there without any monetary benefit but he failed to bring on record any documentary evidence from the Administration of the Hospital in support of his version.
It is an admitted fact that all patients in the Zainib Memorial Hospital are not treated free of cost, therefore, in the absence of any evidence in rebuttal it is presumed that the respondent is also getting financial benefits from the said hospital.
11. In view of the aforesaid facts and circumstances of the case, the maintenance allowance at the rate of Rs.15,000/- per month for the petitioner is very nominal qua the financial status of the respondent. The petitioner is at a growing up age and besides her educational expenses she requires money for her medical treatment, attendant for her care and other personal needs as well but the quantum of maintenance allowance fixed by the learned courts below neither corresponds to the needs of the petitioner nor commensurate with the financial status of the respondent, therefore, the same is liable to be modified.
12. For what has been discussed above, Writ Petition No.4892/13 filed by the petitioner is allowed the impugned judgments and decrees of the learned courts below dated 11.05.2012 and 08.12.2012 are modified in the terms that the petitioner is held entitled to recover maintenance allowance from the respondent at the rate of Rs.33,000/- per month from the date fixed by the learned Judge Family Court till her legal entitlement with 10% annual increase. Writ Petition No.173/13 filed by respondent being devoid of any merits is dismissed. No order as to costs.
13.Before parting with the matter in hand, this Court has noted that Mr. Anjum Raza Syed, learned Additional District Judge while reducing the rate of maintenance of the petitioner from Rs.25,000/- to Rs.15,000/- per month has not duly appreciated the factual grounds and circumstances of the case. He has grossly misconstrued while holding that "maintenance is to be fixed according to the needs of the minor and not according to the income of the father". It is emphasized that while fixing maintenance allowance the courts are required, inter-alia, not only to take into consideration the needs of the minor but also the financial status of the father. Obviously a child whose family belongs to lower financial strata of the society would be used to being maintained in lessor amount while a child who belongs to a middle class or financially strong segment of the society will be used to some extra perks and privileges which the parents of said child may be able to afford. The Courts must also take into consideration all the surrounding circumstances of the minor, for instance in this case the minor is suffering from a serious disease as such she is required to be provided medicines and proper treatment for ensuring continuity of life and in case the said medicines are not provided to the child her survival would be jeopardized, therefore, the basic duty of the court while determining quantum of maintenance is to, inter-alia, look into financial position/status of the father, needs of the child and other contributing factors which may come to the notice of the court to ensure that the child may not become .victim of discord between his/her parents by having the right to life and survival being put in jeopardy. Fixation of maintenance of a child is, therefore, not a trivial matter to be dealt with in a cursory or superficial manner but the Courts have to apply their mind and then come to a figure which is reflective of the facts and circumstances of the ease. Income of the father or supporting parent has to be one of the major consideration for the courts while awarding maintenance allowance, therefore, the observation of the learned Appellate Court referred supra is not only preposterous but also against the basic logic and rationale. It appears from the manner in which the maintenance of the minor has been reduced that the learned Judge had some extraneous factors disturbing his sense of judgment. His judgment is not reflective of his legal acumen and judicial mind. He has also departed from the instructions and directions as contained in Order XLI, rule 31 of the C.P.C. for writing judgments which, inter-alia, calls upon the Court to state (a) :the points for determination; (b) the decision thereon; (c) the reasons for the decision. All these points are invariably missing in the impugned judgment of the learned Addl. District Judge. A copy of this order will be sent to the MIT of this Court who will call for explanation of the said Judicial Officer and submit before me in Chamber along with his own comments within one month.