KHADIM HUSSAIN M. SHAIKH, J.---Through this petition, the petitioner Shahzado has called in question judgment dated 28-01-2016, passed by III-Additional District Judge, Khairpur, in Family Appeal No,65 of 2014 re--Shahzado v. Mst.Bashira, dismissing the appeal filed against the judgment dated 28.08.2014, passed by 2nd Civil Judge and Family Judge, Khairpur in Family Suit No,73/2013 re-Mst.Bashira v. Shahzado, whereby the said suit was partly decreed and partly dismissed.
2. Briefly the narrated facts of the case are that plaintiff/respondent Mst.Bashira was married to the defendant/petitioner (the said parties hereinafter will be referred to as the respondent and the petitioner, respectively). Out of this wedlock the parties have six children namely Nudrat, Neelam, Sidra, Awais Ahmed, Shahzaib and Sheraz. The petitioner, having contracted second marriage, had deserted the respondent and her aforesaid children and has never provided maintenance to them since July 2012. Promised dower (two tola gold in shape of ornaments) has also not been given to the respondent by the petitioner despite her demand. It is further stated that petitioner has sold out the bangles of gold weighing one and half tola belonging to the respondent. The petitioner is running private school in village Bagirji in the name of Oxford School. The respondent along with her minor children is residing in the rented house and passing miserable life and the respondent despite doing labour, hardly cope-up with the life essential requirements. The children of the respondent are getting education in various schools and huge amount of school fees etc. is outstanding against the respondent, for which the school authorities are forcing the respondent for payment thereof. As the efforts of the respondent yielded no fruit, hence, she filed the above suit with the following prayers:-- "a) That this Honourable Court may be pleased to direct the defendant to pay the maintenance allowance of plaintiff at the rate of Rs,5000/- per month and Rs,10,000/- per child from July 2012, dower in the shape of golden ornaments weighing to two Tolas, golden bangles weighing one and half tola, cash Rs,50,000/- being amount of VC to the plaintiff, in case he avoids to pay the same, the same be got recovered by way of attachment of the movable and immovable property of the defendant according to law or by putting the defendant in civil prison, till recovery of maintenance, dower and other articles as shown above. b) To grant any other relief which deems fit and proper under the circumstance of the case. c) To award costs of the suits."
3. The petitioner, after service of summons, filed his written statement, wherein he admitted his marriage with the respondent and the children born out of his wedlock with the respondent. It is further stated that the petitioner had paid the rent of the house and also used to send Rs,15000/- per month to the respondent as maintenance for her and her children and he has denied to have taken away the bangles of ornaments or other articles etc. He claiming to be earning salary of Rs,8000/- per month, stated that he is unable to pay the amount claimed by the respondent.
4. On the divergent pleadings of the parties, following issues were framed:-- "I. Whether, the plaintiff and her children are entitled for grant of maintenance, if so, from what period and at what rate?
2. What dower was fixed at the time of Nikah and either it remains unpaid as claimed by the plaintiff and it remains paid as shown in the Nikahnama and claimed by the defendant?
3. Whether, the defendant is liable to pay and return gold ornaments weighing at three and half tolas and Rs,50,000/- cash, as claimed by the plaintiff?
4. Whether, the defendant is not under legal obligation to pay the maintenance to the plaintiff and her children?
5. Whether, the plaintiff is entitled for grant of relief, as prayed?
6. What should the decree be?"
5. The respondent examined herself at Ex.11 and produced copy of the decree and order sheet at Ex.11/A & 11/B. She also examined one Wazir Ahmed as P.W-2 at Ex.12 and then her side was closed.
The petitioner examined 'himself at Ex.14 and thereafter learned counsel for the petitioner closed his side.
6. After hearing the parties' counsel, the trial court partly decreed the suit and partly dismissed it vide impugned judgment and decree dated 28.08.2014, which were appealed against by the petitioner and ultimately the appeal was decided by the III-Additional District Judge, Khairpur vide impugned judgment and decree dated 28.01.2016, hence this petition.
7. Learned advocate for the petitioner has mainly contended that the trial Court had not properly considered the evidence brought on record; that the learned appellate court also without considering the material aspects of the case has dismissed the appeal filed by the petitioner; and, per him, both the judgments passed by the learned Courts below are illegal. He, therefore, prays that the impugned judgments, passed by both the Courts below may be set aside and case may be remanded to the trial Court for deciding it afresh by re-considering and re-appreciating the evidence available on record. He has placed his reliance on case of Asif Rafique v. Mst. Quratullain and 3 others (2016 M LD 425) and case of Mst. Amreen v. Muhammad Kabir (2015 YLR 170).
8. On the other hand the respondent Mst.Bashira, who is present in person, has contended that the petitioner has deserted her and her five children namely Nudrat, Neelam, Sidra, Awais Ahmed and Sheraz and the sixth one namely Shahzaib is putting up with the petitioner; that all the five children living with her are residing in a rented house and all of them are school going; that since July 2012 till date the petitioner has not paid a single penny to the petitioner and her children as maintenance; that the petitioner is wealthy man running three private schools and earning handsome amount from his schools and also from his business of transport which he runs for schools in school timings and for remaining period of the day as private transport; that the respondent has been doing labour of handicrops and sewing cloths, which, per her, hardly cope- up and meet the routine expenses of her children and house rent etc; that she is aged of about 50 years and is now exhausted; and that the petitioner instead of providing maintenance to his own children has been dragging the respondent in Court un-necessarily and she being unable to bear the expenses of litigation could not be able to engage her counsel.
9. I have considered the arguments advanced by the learned counsel for the petitioner and the lady respondent.
10.From a perusal of the record it would be seen that the respondent had filed the suit for recovery of maintenance, dower and dowry articles etc, on 24.04.2013; admittedly, the petitioner Shahzado married with the respondent Mst. Bashira and out of this wedlock six children were born; out of whom five children namely Nudrat, Neelam, Sidra, Awais Ahmed and Sheraz, of the parties, are residing with their mother, the respondent since their childhood; that earlier the petitioner, per his, own case, continuously paid maintenance of Rs,15000/- per month to the respondent plus rent of the house, in which the petitioner's aforesaid five children are putting-up with their mother, the respondent, upto April 2013 and whereafter the petitioner, per his, own case and admissions in his evidence has neither paid maintenance to his children nor has he paid the rent of the house till date; the trial Court partly decreed the suit and partly dismissed it vide impugned judgment dated 28.08.2014. The relevant paragraph of the judgment of the trial Court is reproduced here for the sake of convenience:-- "17- In view of my above discussions and findings on issues Nos,1 to 4, 1 have come to my conclusion that the suit of the plaintiff is decreed to the extent of maintenance allowance of five children and dismissed the claim of plaintiff in respect of dower, golden ornaments and cash amount of Rs,50,000/-. The defendant is directed to pay the " past maintenance to five children namely Miss Nudrat, Neelam, Sidra, Awais Ahmed and Sheraz at the rate of Rs,5000/- per month for each child, total Rs,25,000/- from the month of July, 2012 till duly, 2014 for the period of 24 months, amounting to Rs,600,000/- past maintenance and future maintenance with the same rate till boys attain the age of minority and daughters get puberty and are married, with increase of 10 percent per annum. The defendant is directed to deposit Rs,600,000/- as arrears of past maintenance within 60 month to the office of Nazir of this Court. However, the parties bear their own costs. Let the decree be prepared and same be sent to the concerned U.C. Administrator, as required under the law.
11. The petitioner being aggrieved by the aforesaid judgment, filed appeal being Family Appeal No,65/2014 in the Court of District Judge, Khairpur, which was ultimately heard and decided by the III-Additional District Judge, Khairpur, vide judgment dated 28.01.2016. For the sake of convenience, the relevant paragraphs of the judgment dated 28-01-2016 of the appellate Court, are reproduced here:-- "During the evidence, appellant admitted that he used to pay Rs,15,000/- as maintenance and rent up to April, 2013, thereafter he was stopped by respondent and approached the Court. Such fact was not contradicted during cross-examination, though opportunity was provided to other side during trial.
It is admitted that appellant used to pay Rs, 15000/- as maintenance and Rs,2500/- as rent up to April, 2013. No evidence has come on record regarding income of husband / father / appellant.
Appellant has admitted during cross-examination that he owns transparent business as well.
Appellant has also failed to produce any proof of income before the Court, his claim of earning only Rs,8,000/- cannot be taken when he used to provide Rs,15,000/- as maintenance to respondent with rent of Rs,2,500/-. Respondent though failed to produce proper income proof of appellant but from record it is well established that he is well of enough to support his family/ minors, even otherwise he is duty bound to maintain the minor children, the ground that two of his daughters are earning through teaching is out of question and cannot be considered.
In view of the discussion made supra, I do not find any illegality or irregularity in the impugned judgment and decree, but the decree requires some interference as to maintenance rate and past maintenance period. Hence, I grant maintenance of each minor at Rs,4,000/- per month, appellant is also directed to pay 1/2 of rent of house at fixed rate of Rs,1250/- per month. Appellant is further directed to pay the past maintenance from May, 2013 a 4,000/- per minor which would be Rs,660,000/- The future maintenance is to be paid till minor get majority age for male minor and till marriage of female minors with 10% increase per annum. The appellant is directed to deposit past maintenance in 06 equal installments on monthly basis after the expiry of 30 days of order. Appellant is also directed to deposit Rs,1,500/- per minor 15 days before every Eid Festival i,e, Eid-ul-Fitr and Eid-ul-Uzha, with Nazir of the Court. The appeal in hand stands disposed of accordingly".
12. From the above, it is crystal clear that the trial Court after evaluating the evidence and considering the merits of the case, declined the maintenance allowance of the respondent Mst.Bashira, dower, dowry articles and cash of Rs,50,000/- being the amount of COMMITTEE'
(common pool), claimed by the respondent, but allowed maintenance of the above named five children at the rate of Rs,5000/- per child' per month from July, 2012 and that too as against Rs,10,000/- per child per month claimed by the respondent; moreover, the appellate Court while deciding the appeal filed by the petitioner further reduced the maintenance of the children from Rs,5000/- per child per month to Rs,4000/- per month plus half of the rent amount of Rs,1250/- out of Rs,2500/- per month and that too from May 2013 instead from June 2013 allowed by the trial Court i,e, for the period of default admitted by the petitioner in his written statement and in his evidence, wherein he admitted that he had paid the maintenance of Rs,15000/- per month plus house rent to the respondent upto April 2013 and whereafter he has not paid any amount of maintenance of his children and the rent of the house to the respondent.
13. In view of what has been discussed above, I am of the considered view that the learned trial Court after considering the evidence brought on record only allowed the aforementioned maintenance in respect of the children of the petitioner in the wake of admissions of the petitioner regarding earlier payment of maintenance etc. to the tune of Rs,15000/- per month plus rent of the subject house continuously paid upto April, 2013 and thereafter stopping the payment of the maintenance and the rent, more particularly, the appellate Court by taking lenient view has further reduced the rate of maintenance from Rs,5000/- to Rs,4000/- per child per month, which in the wake of rising the cost of the living, in my humble view, is not higher on side; and that too for the period of admitted default i,e, from May, 2013 onwards instead of July, 2012, allowed by the trial Court. On a query, learned counsel B for the petitioner has conceded that the petitioner has not paid any amount towards the maintenance of the aforesaid five children from May, 2013 till date, which adversely reflects upon the petitioner, who by dragging the matter here and there with intent to increase the miseries and agonies of the respondent Mst. Bashiran, has also put his own children in . hardships and sufferings despite being duty bound to provide proper maintenance to them, and, such conduct of the petitioner even in not sparing his own children, is deprecated; the petitioner by filing this petition has attempted to delay the satisfaction of the decree, passed by the Competent Courts against him, and to deprive his own children of the fruits of the decree, infringing their right of maintenance. The case law quoted at bar by the learned counsel for the petitioner, are not help ful for the petitioner rather one of them namely case of Asif Raaflq, (supra) is against the petitioner, wherein the suit filed by the respondent Mst.Quratullain for recovery of dower amount, maternity expenses, maintenance and dowry articles etc. was decreed and this Court, modifying the judgments and decrees of the Courts below, allowed the dower amount of Rs,200,000/-, maintenance of Rs,10,000/- per month, dowry articles and cash of Rs,350,000/- to the respondent/defendant and Rs,10,000/- as maintenance of each child with 5% increase per annum, and whereas the case of Mst. Amreen (supra) being distinguished on facts and circumstances, is not attracted to the case one in hand.
14. Under the above circumstances, I am of the considered view that the findings rendered by the Courts below in the impugned judgments after appreciating the evidence and considering the merits of the case, suffering from no illegality or perversity or jurisdictional defect, do not attract the exercise of constitutional jurisdiction of this Court under the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Accordingly, the petition being devoid of any merit, is dismissed with no order as to costs.