The synoptic view of the instant matrimonial controversy, culminating into instant writ petition, is that Tanveer Ahmad (petitioner) and Najma Parveen-respondent No.3 (respondent) were married in December, 2002. Out of this wedlock respondent No.4-Tanzeela Tanveer was born, who at present is in custody of respondent/real mother. Respondent was divorced in February, 2012. Respondent filed family suit for maintenance allowance of respondent No.4 @ Rs.5000/- per month with 25% annual increase. (she also prayed for decree for recovery of dowry articles, not subject matter in the instant petition). The petitioner contested the suit, claiming that neither demanded maintenance is appropriate nor he is in a position to pay the same. To resolve controversy, learned Judge Family Court, Fort Abbas, District Bahawalnagar framed issue No. 1. After recording evidence of parties, the suit of respondent No.4 stood decreed in her favour @ Rs.1500/- per month from the date of filing of suit till her legal entitlement with 15% annual increase vide impugned judgment and decree dated 23.12.2015, passed by learned Judge Family Court, Fort Abbas. The minor through her next friend (real mother) filed appeal against the impugned judgment and decree and vide judgment and decree dated 15.03.2016, passed by learned Additional District Judge, Fort Abbas, the appeal was allowed and maintenance of minor was enhanced to Rs.3000/- per month with the following observations:- "Mst. Tanzeela Kosar minor daughter was born out from the marriage of Mst.Najma Perveen with Tanveer Ahmed and Mst. Najma Perveen appeared as PW-1 and there is no dispute that the minor daughter of Tanveer Hussain is not the daughter of Tanveer Hussain (DW-4). Tanveer Hussain (DW-4) admitted that he is an agriculturist and he has solemnized 2nd marriage and has two children from his 2nd wife and unable to pay the maintenance allowance. It is settled law and as per Islamic Law father is duty bound to pay the maintenance allowance to the children whether he has solemnized 2d marriage or not and without number of children. Plaintiff (PW-1) has not produced any document regarding source of income of Tanveer Ahmed respondent/plaintiff, however, minor is aged about five years and it means that she is school going child andn the learned trial Court has passed the maintenance allowance @ Rs.1500/- which is a meagre amount, under the present circumstances and keeping in view the maintenance of the minor the learned trial court has misread the evidence and other facts of the minor and has not passed the maintenance allowance as per requirements of the minor, so, the rate of the maintenance allowance is enhanced from Rs.1500/- to Rs.3000/- per month with 15% annual increase till her legal entitlement, so this issue is decided in favour of appellants/plaintif fs.
2. The petitioner has assailed the impugned judgment and decree passed by learned Additional Judge, Fort Abbas by filing the instant writ petition on the grounds that the same is against facts, law and suffers from misreading and non-reading of evidence. Prayer has been made for setting aside the same and dismissal of suit of respondent No.4.
3. Heard.
4. Admittedly, Tanzeela Tanveer is minor daughter of present petitioner and is of school going age. Learned Additional District Judge has fixed Rs.3000/- maintenance allowance for the minor. Keeping in view the rocketing prices of the daily commodities and ever increasing needs of minor, the maintenance allowance fixed by learned Additional District Judge is reasonable and cannot be termed as harsh or arbitrary. From the evidence on record, it is established that the petitioner as DW-4 in his examination in chief has made generic statement of his poverty and inability to pay maintenance allowance. During cross examination he has conceded that his deceased father owned eight acre land and as such the petitioner alongwith other co- heirs inherited that property. Worth mentioning that in introductory para of statement of DW-4/petitioner, he has mentioned his profession "Zamindar". The petitioner has contracted second marriage and has issues from the second wife and this fact also hints that petitioner has sound financial status. Thus to my view petitioner has failed to establish that the impugned judgment and decree passed by learned Additional District Judge, Fort Abbas suffers from misreading and non-reading of evidence. Constitutional jurisdiction under Article 199 of the Constitution cannot be exercised as an appeal. Findings of Courts below on facts and law cannot be disturbed in Constitutional jurisdiction unless petitioner succeeds in proving any error or jurisdictional defect in judgments of Courts below. Precedents 2009 SCMR 1243 Waigar Haider Butt Versus Judge Family Court and other' and 2010 MLD 1498 Lahore `Tariq Hussain Versus Additional District Judge' are relied.
5. The learned Judge Family Court has introduced formula of enhancement in maintenance allowance @ 15% per annum, the same has been upheld by learned Additional District Judge, Fort Abbas. Under Section 17-A 2(b) and (3) of the West Pakistan Family Courts Act, 1964 as substituted by The Punjab Family Courts (Amendment) Act, 2015 (XI of 2015), the Family Court is competent to prescribe the annual increase in the maintenance and in case of non-prescribing the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased @ 10% each year. For convenience of reference, the same is reproduced here under:- [17-A.Suit for maintenance.- (1)--------
(2) In a decree for maintenance, the Family Court may:
(a) fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances; and
(b) prescribe the annual increase in the maintenance.
(3) If the Family Court does not prescrib e the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year .
((4)..........
Under Section 17-A(2)(3) of the Act ibid, if the Family Court does not prescribe the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year. Thus from language of this section, it is manifest that it is the primary duty/responsibility of Judge Family Court to determine that at what rate/percentage, the minor or wife would be entitled to enhanced future maintenance. But it cannot be inferred or readily accepted that Family Court cannot fix annual increase at higher rate than 10%. No such restriction has been imposed on the discretion of Court and there is no ambiguity in Section 17-A(2)(b) of Act ibid in this regard. Of course the Family Court keeping in view the source of income, potential for increase of such income of judgment debtor and demands of minor/s, wife/ decree holder/s, and the increase of further needs, i.e. schooling, admission in college/university applying golden rule of "welfare of minor/s" and also taking into consideration special circumstances of each case, can prescribe the rate of annual increase in maintenance allowance and such order will be fair, proper, justified and legal one. As such, to my view, the contention of learned counsel for the petitioner that the formula of increase given in the impugned judgments and decrees is in violation of Section 17-A(2)(3) of Act ibid is without force and thus is outrightly rejected.
6. Consequently , I have come to the irresistible conclusion that the findings of Courts below are based on proper appreciation of evidence and do not suffer from misreading and non-reading of evidence.This writ petition is accordingly dismissed