1. ' In this petition, the petitioner has challenged the judgment dated 16-1-1997 of learned VIIth Additional District Judge, Karachi (South) whereby she allowed the appeal of the respondent and set aside the judgment and decree of learned Family Court.
2. ' The relevant facts of the petition are that petitioner filed suit for maintenance against the respondent, her husband which was allowed by learned VIth Civil/Family Judge, Karachi (South) on 16-9-1996 and she was allowed maintenance since July, 1990 to 21-1-1995 with further maintenance for Iddet period at the rate of Rs,1,500 per month. This judgment was challenged in appeal by the respondent who succeeded in proving the same and the order of Family Judge was set aside. The facts of the case of petitioner are that she contacted marriage with respondents on 9th December, 1988 and an amount of dower was fixed at Rs,200. Her case further is that she became pregnant and lost the child due to the maltreatment at the hands of the respondent. Irrespective of the above, respondent used to abuse, insult and beat her usually. She was ultimately ousted from the house in the month of July, 1990 and the dowery articles were retained by the respondent in his house. Because of these reasons, she was compelled to file suit for dissolution of marriage. She has further averred that since the above date, respondent never sent maintenance allowance though he being a rickshaw driver used to earn Rs,9,000 per month. In the suit she claimed for her past maintenance since July, 1990 at the rate of Rs,1,500 per month and future maintenance at the same rate till the disposal of the suit.
3. ' Respondent contested the suit and filed his written statement wherein he denied the above allegations and disclosed that he always treated the petitioner with great love and kindness and provided her proper maintenance within his financial resources but she acted with mala fide intention and started demanding to transfer respondent's house in favour of her father. On refusal to meet the demands, she left the house and started residing with her father. In spite of many efforts to reconcile, he failed to bring her back to his house. It is also pleaded by the respondent that petitioner had also filed Suit No,119 of 1994 for dissolution of marriage by way of Khula' on the similar allegations. She had also filed Suit No,1024 of 1994 for return of dower articles while agitating the same allegations.
4. ' On the above pleadings, the learned trial Court framed the following issues:
(1) Whether the plaintiff is entitled for her maintenance. If so, from which date and at what rate?
(2) What should the decree be?
5. ' In support she examined herself and her father Shah Muhammad while respondent examined himself and D.W. Muhammad Naseem. On assessing the evidence, the learned trial Court decreed the suit for maintenance.
6. ' I have heard Mr. Riazuddin, learned counsel for the petitioner and Mr. K.B, Bhutto, learned counsel for the respondent at length. It is contended by petitioner's counsel that the learned appellate Court has not considered the legal and factual aspect of the case and has misread and non- appraised the evidence led before the trial Court. According to him, the learned trial Court has rightly granted her maintenance by considering the entire facts of the case. The ground of Khula' taken by her in the suit for dissolution of marriage does not wash away her past maintenance as she was not only maltreated but was expelled from the house by the respondent. Learned counsel further contended that petitioner had filed suit within time and was not hit by the Law of Limitation and her case is covered under Article 120 of Law of Limitation. He states that plaint was presented on 29-9-1994 and maintenance was granted from 1-7-1990 till Iddat period as such the trial Court has granted maintenance within the scope of period of limitation. He has submitted that since the period of limitation for filing the suit is not provided in the Family Courts Act, 1964, hence as per Article 120 of Law of Limitation suit for maintenance can be brought within six years from the date the right to sue accrues. In support he placed reliance on the case-law reported in PLD 1972 SC 302, PLD 1981 Karachi 773, 1988 CLC 1134 and 1990 CLC 934.
7. ' On the other hand respondent's counsel vehemently refuted the contentions of petitioner's counsel and has stated that trial Court has not furnished any cogent reasons for allowing the suit of the respondent with regard to the recovery of maintenance. The said Court ignored the fact that it was the petitioner who left the house of the respondent on her own will and filed suit for dissolution of marriage on the ground of Khula' on 18-4-1994 wherein she had specifically pleaded that she had developed hatred against respondent and she cannot live with him within the limits prescribed by God as his wife. He further argued that the learned trial Court has given contradictory observations on the burden to prove Issue No,1 which according to the judgment was to be proved by the petitioner but while in the judgment it is said that the burden to prove issue lies upon respondent. Thus, the judgment of the trial Court suffers from serious illegalities. He lastly contended that the petitioner contacted another marriage after decree of dissolution against the respondent as such she is also not entitled to the maintenance. In support he placed reliance on the case-law reported as 1993 SCMR 511(c), PLD 1961 Peshawar 66 and 1996 SCMR 859.
8. ' The important aspect of the case, dealt with by the trial Court as well as the Appellate Court with regard to the claim that the petitioner is entitled to past as well as future maintenance is the major issue to be looked into in this petition. Irrespective of the above it is also to be adjudicated whether the petitions in the family matters are maintainable or otherwise. At the very out it is found that the petitioner had lived with respondent for 4-1/2 months after marriage and thereafter she started living with her parents and according to the contents of suit for maintenance, she had filed suit for dissolution of marriage on the ground of cruelty, maltreatment and Khula' . Furth Lemore the petitioner in her examination-in-chief has further disclosed that her suit for dissolution of marriage by way of Khula' has been decreed by the trial Court. This apparently shown that suit for maintenance was filed after the suit for dissolution of marriage. The petitioner in suit for dissolution of marriage has specifically pleaded that she has developed hatred against the respondent and cannot live as his wife within the limits prescribed by Allah and claimed the dissolution by way of Khula' . Against this the respondent pleaded before the trial Court that petitioner always treated with love and affection and on his refusal to transfer the title of the house in the name of petitioner's father she got annoyed and left his house. On the point of daily earning, the contention of the respondent that presently he is jobless and has one rickshaw from which he earns Rs,50 per day, has not been considered by the Trial Court. In these circumstances, the allowing of maintenance to the extent of Rs,1,500 per month without adducing evidence on this particular point is not justified. Under the above circumstances, allowing the past as well as future maintenance is not proper and there is no exception to the judgment of the Appellate Court. The citations referred by petitioner's counsel have no bearing with the facts of petitioner's case but are on entirely different factual as well as legal aspect. Whereas the law referred by respondent's counsel coincided with his case. In the case of Mst. Shereen Zadi v. Ghulam Muhammad PLD 1961 W.P.)
9. Peshawar 66, it has been held that where there is no reliable evidence to establish any default on the part of the husband and it was the wife who deliberately refused to return to her house, the husband was under no duty to provide maintenance in her parent's house. Hon'ble Supreme Court in the case of Export Promotion Bureau and others v. Qaiser Saifullah 1994 SCMR 859(c) has held as under: "Art. 199---Constitutional jurisdiction of High Court under Art.199--- Nature and scope--- Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal."
10. I feel appropriate here to refer the case of Said Rasool Khan v. Additional District Judge, Lucky Marwat, District Balm and others 1991 MLD 1732(b). It has been observed in this judgment that when Court had come to the conclusion that wife has developed such eversion for her husband as to justify dissolution of marriage on the basis of Khula than wife was not entitled to either past or future maintenance.
11. ' In the light of what has been observed above, there seems to be no justification to interfere with the judgment of Appellate Court while exercising Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Accordingly petition is dismissed in limine. The parties are left to bear their own costs.