KHADIM HUSSAIN M. SHAIKH, J. Through this petition, petitioner Faiz Ahmed son of Haji Ahmed Khan has challenged the judgment dated 06.01.2018 and decree dated 08.01.2018, passed by learned Additional District Judge, Matiari dismissing the Family Appeal No.14 of 2018, re-Faiz Ahmed v. Mst. Soni filed against the judgment and decree dated 31.07.2017, passed by the court of Family Judge-II, Matiari in Family Suit No.54 of 2016, re-Mst.
Soni v. Faiz Ahmed Kalhoro , partly decreeing the said suit to the extent of past maintenance of the plaintif f at the rate of Rs.5000/- per month and past maintenance of the petitioner's own daughter Shazia at the rate of Rs.2000/- per month and future maintenance at the rate of Rs.5000/- per month with 5% annual increase.
2. Briefly , the facts of the case are that plaintif f/respondent No.1 Mst. Soni was married with the petitioner/defendant Faiz Ahmed Kalhoro in the year 1987. Out of this wedlock the parties were blessed with two daughters, namely , Shabana aged about 27 years, who after her marriage is residing with her husband, and Mst.
Shazia aged about 23 years, who being unmarried, is residing with respondent No.1 Mst. Soni. The behaviour of the petitioner and other inmates of his house with the respondent Mst. Soni remained harsh and insulting and even on petty domestic matters she was physically and mentally tortured by them. Ultimately the petitioner had driven out respondent No.1 along with her daughter Mst. Shazia in three clothes from his house and got his second marriage without her permission. The petitioner , who is serving in educational department as primary teacher , is drawing handsome salary of Rs.40,000/- to 45,000/-. Since the month of January , 2008, the petitioner deserted the respondent Mst. Soni and his daughter Mst. Shazia, having also not provided a single penny as maintenance to them. The efforts of respondent No. 1's parents for reconciliation yielded no fruit, hence the respondent No.1 filed the subject suit for maintenance.
3. The petitioner filed his written statement, wherein he denied the allegations of the respondent No.1 and stated that dower amount was paid to the plaintiff on the day of her marriage and plaintif f left his house on her own accord.
4. On the divergent pleadings of the parties, the following issues were settled:-
1. Whether the plaintiff is entitled for maintenance, if so, since what rate and for which period?
2. Whether the plaintiff is entitled to claim maintenance of her major daughter namely Shazia from the defendant, if so since what rate and for which period?
3. What should the decree be?
5. The parties led their respective evidence and then after hearing the parties, the learned Family Court passed the judgment and decree dated 31.07.2017 whereby the suit was partly decreed as discussed in paragraph-1 [ supra ].
6. Having felt aggrieved by the aforesaid judgment and decree passed by the learned Family Court, the petitioner preferred appeal being Family Appeal No.14 of 2017 in the learned Court of District Judge, Matiari, which was dismissed by the learned Additional District judge, Matiari vide judgment dated 06.01.2018 and decree dated 08.01.2018. Then the petitioner has filed this petition.
7. The learned counsel for the petitioner has mainly contended that the learned Trial Court as well as appellate Court have not properly appreciated the evidence brought on record while passin g the impugned judgments and decrees; and, that the judgments and decrees passed by both the courts below are illegal. He, therefore, prays that this petition may be allowed and the suit filed by the respondent Mst. Soni may be dismissed.
8. Learned counsel for the respondent Mst. Soni has submitted that the petitioner has been dragging her and her daughter Mst. Shazia instead of providing maintenance to them. The petitioner has filed this petition with mala fide intention, which may be dismissed.
9. Learned Assistant Advocate General supported the contention of the respondent No.1.
10. I have considered the submissions of the learned counsel for the parties and learned Assistant Advocate General and have gone through the material available on record.
11. From a perusal of the record, it would be seen that the petitioner having contra cted second marriage, deserted the respondent Mst. Soni, (his first wife) and his own daughter Mst. Shazia, having also not provided the maintenance to them. It is worthwhile to mention here that the husband is under obligation to maintain his wife and the father is also obliged to provide maintenance to his son till he attains majority and to his daughter till she gets married and needless to say that maintenance includes food, shelter , clothing and all other things which are necessary for the life; admittedly the petitioner has two daughters, namely , Mst. Shabana and Mst. Shazia of them Mst. Shabana is a married lady and wher eas Mst. Shazia being un-married is residing with respondent Mst. Soni, who has claimed her maintenance and the maintenance of only her unmarried daughter namely Mst. Shazia. The learned trial Court keeping in view the source of the income of the petitioner has allowed the past maintenance to the respondent Mst. Soni and the past and future maintenance to the petitioner's daughter namely Mst. Shazia, as discussed in paragraph-1 [supra], otherwise such an amount during these hard days in which the price of the essential commodities and the articles of basic requirements is so exorbitant that one can hardly meet expenses of the basic requirements on such an amount, having been allowed by the learned trial Court. The learned appellate Court also after re-appraisal of the evidence has dismissed the appeal filed by the petitioner . Needless to add that constitutional jurisdiction of High Court cannot be converted into that of an. Appellate Court, by allowing the disputed questions of facts to be re-agitated in writ jurisdiction after appraisal of the evidence by the learned Trial Court and the Appellate Court as well. It follows that the finding of fact recorded by the forums on appraisal of evidence cannot be disturbed in writ jurisdiction. It is also well settled that High Court is not obliged to press into service its constitutional jurisdiction in every case and the Court is to see whether the grant of relief prayed for will foster the cause of justice or will it perpetuate injustice. Even otherwise, I have gone through the material brought on the record and find that the conduct displayed by the petitioner during the trial and onwards remained dubious and mala fide, for, the petitioner during the evidence made a vain attempt to deprive the respondent Mst. Soni and his own unmarried daughter namely Mst. Shazia of their right of maintenance by improving his case, taking the plea that he had divorced the respondent Mst. Soni thirty years back, beyond his pleadings. It is reiterated that the parties are bound by their pleadings and the evidence adduced beyond the pleadings is not permissible under the law and the party has to first plead facts and pleas in the pleadings and then to prove the same through evidence and no one can be allowed to improve the case beyond what is originally set-up in the pleadings. It follows that evidence or argument with regard to a plea not taken in the pleadings cannot be looked into and no one is allowed in a judicial proceeding to adduce evidence in support of contention not pleaded by him, which can certainly be ruled out of consideration and the decision of the case cannot rest on such evidence and contention beyond the pleadings. And thus, in my humble view both the learned Courts below have rightly rejected the plea of alleged divorce by the petitioner to the respondent. The petitioner by filing this petition has attempted to deprive the respondent and his own daughter the fruits of the decree in their favour and to delay the payment of maintenance to them as long as he could and such contumacious conduct displayed by the petitioner is deprecated. The judgments and decrees passed by both the learned Courts below are apt to the facts, circumstances and the law and both the judgments and decrees of the learned lower Courts are based on appraisal of evidence, which suffering from no illegality or any jurisdictional defect do not call for any interference in exercise of jurisdiction of this Court under Article 199 of the Cons titution of Islamic Republic of Pakistan, 1973. Learned counsel for the petitioner has not been able to point out any illegality or infirmity or jurisdictional defect in the impugned judgments and decrees passed by both the learned Courts below . Accordingly , this petition is liable to be dismissed. These are the reasons of short order announced by me on 30.08.2018, whereby this petition was dismissed with no order as to costs.