1. ' This petition has been filed by the ex-husband of respondent No,1 assailing the judgment dated 31-5-1995 of VIIth Additional District Judge, dismissing appeal under section 14 of the Family Courts Act, thereby maintaining the judgment of Family Court No, XIV, Karachi-South dated 22-1-1995 whereby maintenance in relation to the five minor children was granted and the petitioner was ordered to pay a sum of Rs,300 per child as maintenance.
2. ' The short point involved in this case is that the petitioner has divorced to respondent No,1 and there are seven (7) children born out of the said wedlock, two children are major and have since married. Talaqnama is admitted. The petitioner further states that he has given undertaking in which he has stated that he will pay the maintenance for the four children at Rs,500 p.m. And pursuance to such undertaking he has been sending money orders to the respondent No,1 and such evidence is not disputed. The only point urged before me by Mr. Wajid Wyne appearing for the petitioner is that there is no evidence available on record' which may warrant wringing out from the undertaking dated 10th March, 1992 which has been faithfully observed by the petitioner.
3. Admittedly, salary of the petitioner is Rs,3,000. Both the parties after the divorce, married again and petitioner has four children from his second wife.
4. ' As against such contention of the learned counsel for the petitioner, learned counsel for the respondent has urged that the petitioner was drawing salary of Rs,5,000, according to him, the maintenance is distinct from divorce. He has further averred that in the Constitutional jurisdiction this Court cannot appreciate the evidence and substitute its own findings. He has relied upon the case as Mst. Mubarak Bibi and others v. The Additional District Judge, Sargodha and others 1989 SCMR 1786 and Ashiq Ali v. Mst. Rasoolan Bibi NLR 1992 Civil 542.
5. ' The counsel for the petitioner has stated that Qanun-e-Shahadat is applicable to the proceedings of the Family Court and that in case of conflict between oral evidence and the documentary evidence, documentary evidence is to prevail, particularly Annexure P/6 which is available on record at page 69 i,e, undertaking.
6. ' I find that in the undertaking, the petitioner has undertaken that during the service he will maintain only four children, who are residing with their mother and will send Rs,500 p.m. This undertaking has been faithfully observed by the petitioner. I am informed that the petitioner is depositing Rs,1,500 p.m. As ordered by this Court on 15-1-1996.
7. Reverting to the legal contention urged by the learned counsel for the respondent that this Court cannot appreciate the evidence and substitute the findings of the Tribunals below even if this Court comes to the contrary to the conclusion, such principle of law is firmly embedded in the legal system of this country. However, this principle does not have universal application. Where the findings of the Tribunals are based upon of no evidence or material evidence has been ignored or founded on misreading of evidence, this Court can interfere with such findings in exercise of the Constitutional jurisdiction, as held by the Honourable Supreme Court in the case of A. Razzak v.
8. Sindh Labour Appellate Tribunal and others 1992 SCMR 505. Moreover, no Court or the Tribunal has the jurisdiction to decide the matter wrongly and if any Court or Tribunal decides the matter wrongly, the said Court/Tribunal goes outside the jurisdiction. This principle of law has been laid down by the Supreme Court in the case of Utility Store Corporation and reported as PLD 1987 SC
448. Even otherwise to be dealt with in accordance with law in inalienable right of every citizen and if this Court comes to the conclusion that a party arraigned before Court or Tribunal has not been dealt with in accordance with law then Constitutional jurisdiction could be exercised.
9. Consequently, I therefore, overrule the legal objections urged by the learned counsel for the respondent.
10. ' After Qanun-e-Shahadat was promulgated, the said law is applicable in relation to the proceedings before the Tribunals. The Evidence Act of 1872 was not applicable to the proceedings before the Tribunals. This change of law has been taken note of by my learned and noble brother Mr. Justice Wajihuddin Ahmed in a case reported as Mst. Bakht-e-Rawida v. Ghulam Habib and 2 others PLD 1992 Karachi 46. According to Qanun-e-Shahadat in case of conflict between oral and written evidence written document is to be preferred. The written evidence on the record particularly in the form of undertaking has not been taken note of by the Courts. Consequently, therefore, the trial Court as well as the first Appellate Court have gone outside the jurisdiction, and the order passed by them are not valid and in accordance with law, and liable to be quashed.
11. ' However, even if the orders are declared to be void, this Court in its Constitutional jurisdiction has to do complete justice between the parties. In deciding Constitution petition, the paramount Consideration before this Court has always been to pass such an order which may be reasonable and in accordance with dictates of the justice. While, I find that there was no justification for the trial Court as well as the First Appellate Court to order that the maintenance be given at Rs,300 per child i,e, 1,500 for all children and the same is not sustainable, but at the same time, this Court cannot entertain the undertaking which was given in 1992 to be subsisting in 1997. When the undertaking was given or when the suit was filed, the petitioner may have earned Rs,3,000 per month but Court can always take notice of the amendments in the law relating to the salary of a servant which have been increased time and again and even in the budgetary legislation which is promulgated under the authority of Parliament. Thus increases have been given by the Parliament by amending various laws relating to the salary structure to provide the substantial relief to the employees employed by Government or the other sector dealing with the economy of the country.
12. From the undertaking, I find that the petitioner has undertaken to pay the maintenance for 4 children and not for 5 children.
13. ' This Court also cannot ignore that both respondent No,1 and the petitioner have married again while the case of respondent No,1 is irrelevant as she may be maintained by the second husband, but the petitioner has the responsibility to maintain second wife and four children from that marriage. Equally this Court cannot ignore the minor children from his first wife (respondent No,1) and has to strike a balance, in relation to the maintenance of minor children.
14. It will be, therefore, in the interest of justice and in consonance with the principle governing maintenance that the maintenance be increased. While, I find that Rs,300 per child may not be bearable for the petitioner, it is ordered that Rs,200 per child shall be given by the petitioner to the respondent with effect from 1st April, 1997. The amount deposited by the petitioner pursuant to the order of this Court dated 15-1-1996 which has been lying in this Court is allowed to be withdrawn by the respondent No,1 at Rs,1,000 per month and the remaining amount shall be given to the respondent No,1 for settlement of the future claim, such note will be kept by the Nazir before whom the amount is deposited.
15. ' In view of the above discussion and observations, this petition is disposed of with no order as to costs.