Rasaal Hasan Syed, J. This Constitutional petition stems from order dated 14.3.2022 of the learned Judge Family Court, Lahore dismissing an application for permission to summon the principal and accountant of "Lahore Grammar School, Nasheman-e-Iqbal Branch, Lahore" with original service record of respondent No.2.
2. Facts as will be germane for the disposal of this petition are that the petitioner No.1 instituted a suit for recovery of her maintenance allowance and also that of her minor son, petitioner No.2 herein, claiming that she was married to the respondent, that the conduct of the respondent was cruel towards her, that she was expelled from the house with her minor son and that the respondent had failed to pay the maintenance to the petitioners and further that the petitioners were entitled to recover maintenance allowance @ Rs.15,000/- per month each with 10% annual increase.
3. In defence, the respondent controverted the allegations claiming that his monthly income was Rs.17,976/-, that he had old parents and many other expenses and that he shall not be in a position to pay huge maintenance allowance to the petitioners. It was not disputed that the respondent was full-time employee at the above-stated school. The evidence of the petitioners was recorded whereafter respondent No.2 appeared as D.W.1 and in his statement tendered a copy of salary slip which was marked as "Mark-DA". He was extensively cross-examined in respect of "Mark-DA" as according to the petitioners the same was not a genuine salary slip/document.
4. The petitioners moved an application for permission to summon the principal and accountant of the school with complete original record of respondent No.2 from the date of his appointment till the date he appeared as witness. Stance taken therein was that the salary slip "Mark-DA" was not verified by any responsible officer of the school and that the record keeper or any other responsible officer of the school was not produced and further that the document was tendered in a statement of the respondent himself which, as such, was not admissible as no official of the school had confirmed the genuineness of the document. Based on this it was requested that with a view to decide the quantum of maintenance allowance which the petitioners were entitled to in law it shall be necessary to confirm actual salary of the respondent No.2 and, being so, permission be accorded to summon the principal and accountant of the school with original service record of the respondent.
5. The application was resisted. The learned Judge Family Court dismissed the application vide impugned order dated 14.3.2022 observing that the document was simply marked and not exhibited as it was not produced by a person who had issued the same and that the court could not summon the concerned persons at the wish of the petitioners and that there was no provision in the Family Courts Act, 1964 (the "Act") to summon a person whose name was not included in the list of witnesses of the parties especially when such a person had not tendered the document before the court.
6. Heard.
7. Perusal of the pleadings reveals that in her plaint the petitioner No.1 asserted that respondent No.2 was an employee of abovementioned school and that he was also partner of woodwork and furniture business and that he was earning an amount of more than Rs.80,000/- per month and that the petitioners had a legal right to demand monthly maintenance allowance @ Rs15,000/- each with 10% annual increase and that the respondent had failed to discharge his obligation.
Scrutiny of the written statement filed by respondent No.2 reveals that in paragraph No.7 thereof the respondent took a contradictory stance as, firstly, he denied the contents of the corresponding paragraph No.7 of the plaint but, thereafter, admitted that he was a full-time employee of abovementioned school and that his monthly income was Rs.17,976/-. While appearing as his own witness as D.W.1 respondent No.2 tendered a salary slip for June 2021 on a printed form of "Lahore Grammar School" which was simply marked as "Mark-DA" and rightly so as neither the record of the school nor the alleged branch accountant who purportedly signed the document appeared in witness-box to prove the document. Respondent No.2 took a vacillating stance in respect of his salary as in his written statement and affidavit he claimed the salary to be Rs.17,976/- while in his statement under oath as D.W.1 in examination-in-chief stated that his monthly salary was Rs.17,800/- and "some rupees". He was, thereafter, confronted with "Mark-DA" which was reflecting a different figure from what he had stated. The witness was extensively cross-examined on the genuineness of "Mark-DA" as according to respondent No.2 the same was not a genuine document.
8. In this backdrop, petitioners moved an application seeking permission to summon the school principal and accountant with the original service record of the respondent claiming that "Mark- DA" had not been verified by any responsible officer of the school nor the record keeper nor any responsible official was produced by the respondent and that, in the circumstances, it will be in the interest of justice that the responsible officers viz. the principal and accountant of the school may be summoned with the service record of respondent No.2. The application was rejected by the learned Judge Family Court with the observation that the document was not tendered by the person who had allegedly issued the same and, as such, it was not exhibited and was simply marked and that there was no provision in the Act to summon a person whose name was not included in the list of witnesses of any party and specifically when the person had not tendered the document before the court. The assumption of the learned Judge Family Court that only the persons mentioned in the list of witnesses by the parties could be summoned and other than that the court did not have any power to summon any person or record was based on incorrect interpretation of law and non-consideration of the proviso to section 7(2) of the Act: "7. Institution of suits.-(1)...
(2) The plaint shall contain all material facts relating to the dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose: ...
Provided further that parties may, with the permission of the Court, call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice."
(emphasis supplied)
In "Syed Zamin Hussain Abidi v. Mst. Mubarak Bang and 2 others" (PLJ 1985 Kar.22) while considering section 7 of the Act it was observed to the effect that the words "call any witness" are very wide in their scope and gave ample power to call any witness, whether named in the list of witnesses or not. In view of the proviso to section 7(2) of the Act the learned Judge Family Court proceeded on illegal assumption as to the absence of jurisdiction to summon a person not mentioned in the list of witnesses filed with the plaint or written statement. To the contrary relevant provisions of the Act empower the Family Court to call any person or witness at any stage which is deemed necessary to do substantial justice and is also necessary for the effective decision of the case. In "Muhammad Asim and others v. Mst. Samro Begum and others" (PLD 2018 SC 819), the honourable Supreme Court of Pakistan observed to the effect that where the husband is required to maintain his wife, former wife during her iddat period or child and is required to pay maintenance including arrears of maintenance, his present and past earnings must be disclosed by him, because his financial status determines the amount of maintenance that should be awarded and that in case of non-disclosure an adverse inference can be drawn against him and further that learned Family Judges should try to ascertain the salary and earnings of the husband/father who is required to pay maintenance allowance.
9. Reference can also be made to section 17(A)(4) of the Act while considering the powers of the Family Court in the domain of requisitioning documentary evidence: "17-A. Suit for maintenance.-
(1) ...
(2)...
(3)...
(4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant."
(emphasis supplied)
In the presence of the noted proviso to section 7(2) read with sections 15 and 17(4) of the Act the Family Courts are clearly vested with the authority to summon any witness or record in the interest of justice for complete adjudication of the issue and, as such, their powers are not restricted to the record and witnesses as mentioned in the list tendered by the parties only. Rather, these provisions enlarge the scope of jurisdiction of the Family Courts to ensure substantial justice and also to unearth the truth from the material evidence which would be necessary to reach just and fair decision in the suit.
10. In maintenance matters question regarding fixation of quantum of the maintenance allowance characteristically depends on known sources of income and other sources of the income of the husband/father. In the instant case respondent admittedly is an employee of a certain school and claims to be in its service for a number of years. Stance of the petitioners was that his monthly income from the salary and business of woodwork and furniture was to the tune of Rs.80,000/- per month. As against this respondent claimed his income to be Rs.17,976/- in his reply whereas in his statement as witness deposed that his income was Rs.17,800/- and "some rupees". Strangely enough the respondent did not produce any record keeper, accountant or responsible officer of the school to confirm the amount he was earning as salary. "Mark-DA" obviously having not been proved learned Judge Family Court rightly observed that it was not exhibited as no person responsible for its issuance tendered the same. After having observed that such document was not exhibited and placing the document on record as "Mark-DA" it behoved the learned Judge Family Court for fair and just decision of the case to permit the petitioner to summon the principal and accountant of the school in question with regard to monthly salary of respondent. As a matter of fact the examination of the document will be necessary to confirm the known sources of income of the respondent from the school. The determination of other sources as claimed by the petitioner obviously will depend on other evidence on record but nevertheless to resolve the actual amount of salary the examination of the record of the school was the primary and most material source/basis which the court ought to have requisitioned and it appears that the Family Court was proceeding under incorrect assumption as if it did not have jurisdiction to summon the witnesses or record other than the ones mentioned in the list filed by the parties themselves notwithstanding the fact that the provision of the Act noted supra enlarged the scope of jurisdiction of the Family Court to summon any persons and record to do substantial justice and, as such, the power of the Family Court to summon the record and person who issued the document could not be obviated.
11. The observations of the learned Judge Family Court that the petitioners are only under obligation to prove the monthly income of the respondent appears to be on incorrect reception of the law. As a matter of fact the stance of the petitioners that the respondent was an employee of the above noted school was admitted by the respondent in his written statement and statement-in-chief. It was, as such, his obligation to prove as to what amount of salary he was receiving from the school by producing the record and the concerned officer who could verify its authenticity and the claim as to the actual salary of the respondent. Even otherwise when parties led evidence it is the preponderance thereof on the basis of which the case gets decided. The respondent having claimed limited resources and denied the actual income will be under obligation to prove the actual income through evidence and record of the school officials and non-production on his part could stimulate inference against him. Be that as it may, the petitioner having herself applied to the court to summon the concerned officials along with the record for the assistance of the court to reach correct and fair determination of the issue, it could not have been declined on erroneous assumption and misinterpretation of law. The learned Judge Family Court illegally refused to exercise jurisdiction and that too for extraneous reasons not admissible in law. The impugned order, as such, is legally untenable and is, accordingly, declared to be so.
12. In result, the Constitutional petition is allowed. The impugned order is set aside and in consequence thereof the application of the petitioners for summoning the accountant and principal of the school with service record of the respondent stands allowed.