This judgment will dispose of Writ Petition No. 10933 of 1999 and Writ Petition No.13971 of 1999 together as both are against the impugned judgment dated 24-5-1999 passed by the learned Additional District Judge, Lahore.
2. Bilqees Begum mother of Mst. Nabeela Tabassum respondent No. l has moved an application that she be allowed to withdraw her power of attorney in favour of her counsel Mr. Saiful Haq Ziay, Advocate in both the aforesaid writ petitions. The application is allowed and she represents the case of her daughter herself:
3. Briefly stated the facts of the case are that respondent No. l Nabeela Tabassum was married to the petitioner Syed Najam-ul-Hassan on 30-i2-1995 for a consideration of Rs.50,000 as prompt dower and an amount of Rs.500 per month as pocket money allowance was fixed for her. Rukhsati took place and marriage was consummated and on 21-2-1996 respondent No.1 asked the petitioner to pay prompt dower but he did not accede to her demand and Mst. Syeda Hameed, mother of the petitioner who is midwife got flared up on which the petitioner and his mother ousted respondent No.1 from the house while she was pregnant. Since 21-2-1996 respondent No. 1 has been forced to live with her parents. The petitioner and his mother imputed false charge against respondent No. l that her pregnancy was illegitimate, the same caused torture to respondent No.1 who became seriously ill and that a sum of Rs.30,000 had been spent on her treatment.
Respondent No.2 was born on 16-10-1996 in Jinnah Hospital, Lahore and Rs.20,000 had been spent on maternity expenses by parents of respondent and that on birth of respondent No.2 the petitioner was informed through telegram and on telephone but he did not care even to have a glimpse of his newly born daughter and that the petitioner/defendant was Homoeopathic doctor by profession and is running his clinic and his mother Syeda Hameed is also working there as midwife and that the appellant is earning more than Rs.30,000 per month and he has his own residential accommodation and can easily pay Rs.10,000 per month to respondent No. l and Rs:500 per month to respondent No.2 as their maintenance allowance and that the petitioner has no other liability except to maintain respondents/plaintiffs. The suit was contested by the petitioner/defendant and the following issues were framed:-----
(1) Whether the plaintiff is entitled to recover maintenance allowance from the defendant? If so on what rate and for what period? OPP.
(2) Relief.
The parties led their respective evidence and after hearing the learned counsel for the parties the learned Judge Family Court decreed the suit vide his judgment dated 13-4-1998. An appeal was preferred before the learned District Judge, Lahore alleging that the learned Judge Family Court had not considered the fact that respondent No. 1 herself left the house of the petitioner and had been residing apart from the petitioner and was, therefore, not entitled to any maintenance allowance and that the maintenance allowance awarded to the respondents was excessive and beyond his income. It was urged by the learned counsel for the respondents that respondent No. l being a legally wedded wife and respondent No.2 being minor daughter of the appellant are entitled to be maintained by the petitioner. The appeal was partly accepted by the learned Additional District Judge, Lahore by way of modifying the order of the learned Judge Family Court to the extent that respondent No. l would be entitled to maintenance allowance at the rate of Rs.2,000 per month since 21-2-1996 till deposit of dower amount by the petitioner in the name of respondent No. l and that respondent No. 2 minor daughter of the petitioner at the rate of Rs.1,000 per month since 16-10-1996 till her marriage or her custody is handed over to the petitioner and that maintenance allowance awarded to respondent No.2 will be subjected to 20% annual enhancement after a year from 24-5-1999 in view of her school going age and prevalent rate of inflation.
4. The present writ petition is against the appellate order, dated 24-5-1999 passed by the learned Additional District Judge, Lahore.
5. The learned counsel for the petitioner contends that the learned Courts below have not considered the source of income of the petitioner while fixing the monthly amount of maintenance.
The mother of the petitioner is a midwife while the petitioner himself is only a helping hand to his mother and that the mother of the petitioner is an old lady of 70 years and their total income is not more than 2,000 per month.
6. Learned counsel for the petitioner has drawn my attention to the deposition of P.W.1 the plaintiff herself. Learned counsel could not point out a single discrepancy whereby it could be inferred that the income of the petitioner was only Rs.2,000. Zahid Iqbal (P.W.2) also did not depose a single word regarding income of the defendant. Syed Najmul Hassan (D.W.1) in his cross-examination stated that it was incorrect to suggest that their income is of Rs.30,000. Then Syed Faqir Muhammad Shah (D.W.2) deposed that according to his assessment the monthly income of the mother and the son i5 two or three thousands. Amjad A.I (D.W.3) in his cross-examination stated that it was incorrect that the defendant's income was Rs.30,000.
7. The written statement and the evidence of both the parties reveal only that 'the plaintiff herself deposed the income of the defendant.
According to the deposition of the plaintiff the defendant took a fee of Rs.200 (Two hundred only) per patient. He has his own house of 10 Marlas. His mother is a midwife and is running a clinic independently and that the defendant is a Homoeopathic doctor.
8. 1 am of the considered opinion that even if the least amount of Rs.200 fee from one patient a day is admitted as the only 'income of the petitioner then the monthly income comes to Rs.6,000 per month, and the fixation of maintenance at the rate of Rs.2,000 p.m. For the wife, and Rs.1,000 p.m.
For the daughter seems to be correct and proper in the financial condition of the petitioner. The learned Additional District Judge has committed no illegality in the exercise of his jurisdiction. The respondent (plaintiff) was entitled to get maintenance from 21-2-1996 to 5-11-1998 i.e. 32 months which comes to Rs.64,000. The yearly increase of 20% in future maintenance is not justified in both the cases of the wife and the minor daughter of the petitioner, as such the same is disallowed. The petitioner has admittedly deposited Rs.49,500 with the Deputy Registrar (Judl.) of this Court, he is directed to deposit the balance amount of Rs.14,500 within two months from today.
9. Regarding the maintenance of the remaining period from 5-11-1998 to the date of decision of the Qazaf's case no execution shall be instituted till the final decision of the Qazaf's case. After such decision both the parties shall proceed in the light of that order, in accordance with law.
10. The maintenance of the daughter at the rate of Rs.1,000 per month from 16-10-1996 till todate i.e. 14-9-2000 i.e. For 47 months and thus, comes to Rs.47,000 sad that the petitioner shall continue depositing of Rs.1,000 as current maintenance, of the minor daughter and Rs.2,000 per month as arrears till it's fully paid.
11. The parties are left to bear their own costs.