CM. No, 540-17.
For the reasons stated in this CM., the same is allowed and the Writ Petition is restored to its original number. CM. stands disposed of.
2. Learned counsel for the parties are agreed to argue the matter today. Let it be reflected in the today's cause-list.
Main Case.
3. Through this order I propose to decide Writ petition No, 6111 of 2016 titled "Muhammad Umar Awan v. Additional District Judge, etc." and Writ Petition No, 8115 of 2016 titled "Mat. Tasleem Umar etc. v.
Additional District Judge, etc." as-both the Writ Petitions arise out of the same judgments and decrees rendered by the learned Courts below.
4. According to the facts gathered from the record Respondent No, 3 filed a suit for recovery of dower and maintenance allowance for herself and for Respondents No, 4 to 7 (minors) in the Court of learned Judge Family Court at Bahawalpur. The said suit was coptested by the petitioner by filing written statement whereby he controverted the assertions of Respondent No, 3 taken by her in the plaint. The learned Family Court after framing certain issues out of the pleadings of the parties recorded pro and contra evidence adduced by the parties and after its due appraisal vide judgment dated 09.02.2016 proceeded on to decree the suit in favour of Respondents No, 3 to 7 as follows: "Suit of Plaintiffs No, 2 to 5 for recovery of maintenance allowance is decreed and the plaintiffs are entitled receive the amount Rs,40001- per-head per month (total Rs,16,0001-) from the defendant with 15% annual increase from 26.04.2013 to the date of institution of suit as previous maintenance allowance and from the date of institution of suit till their legal entitlement and Plaintiff No, 1 is entitled to receive maintenance allowance at the rate of Rs,4000/-from 26.04.2013 to 31.01.2014 and for Iddat period Rs, 150001- lump sum, while suit Of Plaintiff No, 1 for recovery of dower is dismissed".
Aggrieved by the above-said judgment of the learned Family Court, both the petitioner as well as Respondents No, 3 to 7 preferred independent appeals. The learned Additional District Judge vide judgment dated 21.06.2016 partly accepted the appeal filed by the petitioner while modifying the decree to the extent of disentitling Respondent No, 3 for any maintenance allowance. However, appeal filed by Respondents No, 3 to 7 was dismissed maintaining the judgment of learned Family Court to the extent of Respondents No, 4 to 7 hence this petition.
5. I have heard learned counsel for the parties and have also gone through the record appended with this petition.
6. So far as the question of payment of dower is concerned perusal of the copy of Nikah Nama appended with this Writ Petition is suggestive of the fact the same has been paid to Respondent No, 3 at the time of Nikah which fact is also admitte' by her while appearing in the witness box as (PW-1) though it was maintained that the said gold ornaments (dower) were later on snatched from her by the petitioner. So, the findings of the learned Courts below are not needed to be interfered with to this extent.
In order to corroborate her stance in relation to her rest of the claim, Respondent No, 3 also got examined Muhammad Ayub, her real father as (PW-2) and Khadim Hussain (PW-3). The PWs deposed in line with the statement made by Respondent No,
3. Respondent No, 3 also produced copies of birth certificates of minors as (Ex.P1 to P4). No objection was raised upon the said documents by the petitioner. She also produced copy divorce notice (Ex.P5) and Jamabandi showing agricultural and residential land owned by father of the petitioner (Ex.P5 to P9) as documentary evidence. Marks 'A to C are the copies of receipts relating to payment of fees of the minors.
The petitioner has put all the witnesses produced by Respondent No, 3 to a length cross- examination but they could not be shaken on material points.
7. In rebuttal, the petitioner put himself in the witness box as (DW-1) who while recording his statement has denied the assertions made by Respondent No, 3 in the plaint as well as in her statement as (PW-1). The petitioner also got examined Muhammad Saif Ullah Awan, his real brother as (DW-2), who supported the statement of the petitioner. No independent witness has been produced by the petitioner to provide corroboration to his case.
8. I have scanned the evidence available on record perusal of which indicates that the petitioner has never made any attempt for reconciliation. At one hand, the petitioner stated that he has been trying to patch up the matter with Respondent No, 3 but on the other, he sent notice of divorce to the said respondent which speaks volumes about the conduct and behavior of the petitioner. What for talk about the alleged way adopted by the petitioner for reconciliation? It is also evident from the record that no elders from the family was ever sent to the house of Respondent No, 3 to bring her back rather a notice of divorce was sent to her as mentioned above, family matters cannot be patched up by sending notice for divorce rather some positive steps have to be taken by the elders particularly when couple is blessed with minors. So, mere oral statement with regard to reconciliation without there being any constructive effort is nothing but a bald assertion.
Even, he could have approached the learned Family Court through a suit for restitution of conjugal rights but no such attempt has been made by the petitioner.
Furthermore, this Court astonished to have a look on the replies given by the petitioner during the course of cross-examination. He in reply to a question stated that his qualification is B.A. but he did not know how much agricultural holdings/landed property his father has? This Court is not going to believe such kind of statement which rather prompted this Court to presume that he has not stated the things truly and as such tried to mislead the Court. So, keeping in view the deposition of the petitioner it can safely be held that the petitioner. has not come to the Court with clean hands and as such is not entitled to any discretionary relief from this Court. Reference in this behalf is made to "Mirza Bashir Ahmed and another v. Habib and 6 others" (2006 M LD 148).
Another aspect which attracted this Court to disbelieve the petitioner is his deposition made by him during the cross-examination that he did not know the market value of Rafiq shopping centre, which admittedly is owned by his father and he being educated one and serving in the said centre.
A man of prudent mind by any stretch of imagination would not believe such deposition coming from the mouth of the petitioner.
It is observed that a father who is in a position to provide requisite maintenance to the minors, if is not discharging his duties for which he is bound by law of the land, principle of religion as well as morality, does not deserve any leniency. One must not lose sight from the fact that when the minors are not getting maintenance, there is hardly any chance left to develop them into useful citizen.
9. Learned counsel for the petitioner while making reference to the statement of the petitioner made by him while getting recorded during the course of evidence that his income is Rs,10,000/- per month and as such the quantum of maintenance so granted by the learned Courts below is on exorbitant side. I am afraid that this contention of the petitioner cannot be endorsed merely because that presumably he is living with his father in a joint family system and proved to be in a strong financial position. That being so, he can recourse to his father and convince him to illuminate his stated poverty and provision of his share enabling him to maintain his minor children, who admittedly are getting education in different institutions, so that they may also keep abreast in the present era and become a solemn citizens. It would be a good impact upon the social set up as well as in family that the father must paid his "destitute" son so to boost up his financial sources.
It is a good sign that the petitioner should convince his father to come forward and to save his progeny from hungers and tears of the society because the petitioner and the grand-children are presumed to be backbone of the grandfather in our social set up.
Even otherwise, it is also the mandate of Section 370 of Muhammadan Law by D.F. Mulla, that a father is bound to maintain his children until they have attained the age of puberty. It is also mandate of Section 352 ibid that a father is not relieved from the obligation of maintaining them even though they are in the custody of their mother.
Appraisal of the documents appended with this petition as well as going through the provisions of Muhammadan Law, this Court is of the affirmed view that it is obligation of the father to pay maintenance to his minor children. Maintenance includes food, raiment, and lodging etc. In order to grapple with the spike hike commodities and catering for present days social, physical, mental growth, upbringing and wellbeing of the minors, keeping in mind the status of the family, the norms of the society and their educational requirements but obviously corresponding to and commensuration with the means and the capacity of the father to pay are obligatory in nature and cannot be brushed aside mere on the sole ground that the father being infirm or destitute.
Reliance in this behalf is placed on the dictum laid down by the Apex Court in "Humayun Hassan v.
Arslan Humayun and another" (PLD 2013 SC 557), necessary part of clinched from (supra) judgment is reproduced hereunder for facility of reference: "Ammer Ali (Syed) in his commentaries on Muhammadan Law, revised edition by Justice S.H.A.
Raza has opined as under: "Maintenance of male children.--The obligation of maintaining the male children lasts until they arrive at puberty. After this, a father is not bound to maintain his male children, unless they are incapacitated from work through some diseases or physical infirmity, or are engaged in study.
When male children are strong enough to earn their own livelihood, though not actually adult, the father may set them to work for their own subsistence or hire them out for wages.
If the male children are actually able to work, but the employment found for them is unsuitable or improper for their rank in life, they would be placed on the same footing as children labouring under some infirmity. Ability to work must, in such cases, be considered with reference to the social position of the children, as well as the parents; so that a father occupying a respectable position, in which the children have been brought up delicately, must not hire them out for work which is degrading in its nature or. associations".
10. So far as quantum of maintenance allowance granted to the minors (Respondents No, 4 to 7) is concerned, admittedly they all are getting education in different institutions. So, keeping in view the prevailing circumstances in the country and price hike days, the same is bit on the lower side. In the above circumstances, this Court feels it appropriate to enhance the maintenance allowance so granted by the learned Courts below from Rs,4000/- each per month to Rs,5000/- each per month with the 10% increase from 26.04.2013 till the legal entitlement under the law.
11.So far as claim of Respondent No, 3 with regard to payment of maintenance allowance is concerned, she appearing in the witness box stated that she was taken to the house of her parents by the petitioner in a fraudulent manner. In Para No, 9 of her plaint, Respondent No, 3 averred that on 19.04.2010 Respondent No, 7 was born and when she asked the petitioner for payment of delivery expenses, he flatly refused and did not approach her after 26.04.2013. The petitioner while submitting written statement has not attended to this assertion of the respondent and has simply denied. However, the petitioner has admitted during his examination-in-chief that he lastly visited his in-laws in January, 2014 along with the minors. During the course of arguments, learned counsel for the petitioner has placed on record copy of divorce deed according to which he has divorced the petitioner on 22.08.2017.
12. In view of the above scenario, the decree granted by the learned Judge Family Court awarding maintenance allowance to Respondent No, 3 is maintained but it will also include the maintenance allowance for the Iddat period at the same rate w.e.f. 22.08.2017, the date of pronouncement of divorce by the petitioner.
13. Writ Petition stands disposed with the above modification(s).