1. ' By this Constitutional petition, the petitioner through his counsel, has challenged the legality and proprietary of the judgment and decree, dated 15-6-2001 passed by Respondent No,1 in Family Appeal No,22 of 2000 whereby he upheld the judgment and decree, dated 13-2-2001 passed by respondent No .2 .
2. ' The brief facts leading to the present litigation are that respondents Nos.3 and 4 through their mother filed a suit for recovery of maintenance vide Suit No,1040 of 1998 in the Court of respondent No,2 i,e, 1st Family Judge, Karachi East stating that their mother was married with the petitioner on 7-4-1983 at Punjab according to Sunni Muslim Law against dower amount of Rs,60 (Rupees sixty only) and out of the said wedlock, their mother gave birth to eight children out of whom five expired whereas three, including Respondents Nos.3 and 4, aged about 11 and nine years, respectively, and their one brother Hameed aged about four years, (being in the custody of the petitioner) are alive.
3. It was further stated that after the marriage with the petitioner, their mother lived with him in his house as a faithful and obedient wife but from the very first day of the matrimonial life, the attitude of the petitioner was very harsh, insulting and humiliating with her, in July, 1995 petitioner- defendant turned out the respondents Nos.3 and 4 mother from the house after snatching minor Hameed when in the morning some quarrel occurred between husband and wife upon restricting the petitioner not to beat the minor Saeed. During the quarrel, petitioner pronounced the divorce verbally and in August, 1995 he confirmed such divorce in writing. It was further averred that petitioner-defendant was employed with PIA as an Aircraft Engineer and he earned approximately Rs,40,000 per month but he never paid a single penny-to the mother of respondents Nos.3 and 4 for maintenance who after sewing clothes in her house bore their all the educational and other expenses. Respondent No,5 is Hafiz-e-Qur'an and was studying in fifth class and also getting tution whereas respondent No,2 was studying' in an English Medium School and was also getting tuition at the time of filing of the said suits. Besides, respondent No,3 is kidney patient whereas respondent No,4 is TB Patient and both of them were provided medical facilities by their mother within her capacity. It was further averred that petitioner was several times requested to provide new medical cards from P.I.A. But he failed to do so. In these circumstances, following relief was prayed against the petitioner in the said suit:
(a) to give the direction to the defendant (petitioner herein) to pay arrears of maintenance to the plaintiffs Nos.1 and 2 (respondents Nos.3 and 4 herein) since August, 1995 to October, 1998 which comes to Rs,3,90,000;
(b) to order the defendant (petitioner herein) to pay Rs,5,000 per month to the plaintiff No,1 (respondent No,3 herein) and this amount may increase for Rs,1,000 per annum till her marriage;
(c) to order the defendant (petitioner) to pay Rs,5,000 per month to plaintiff No,2 (respondent No,4 herein) and this amount may increase for Rs,1,000 per annum till his majority;
(d) Cost of the suit and any other relief or reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case.
4. ' The petitioner filed written-statement denying all the allegations levelled Against him. He stated that his ex-wife voluntarily surrendered and handed over the physical custody of respondents.
5. Nos.3 and 4 to him, which fact was also admitted .By her before the Punchayat Committee on 12- 12-1995, but on 14-1-1996 she, with mala fide intention, got their custody not only against her undertaking/compromise but also attempted to black mail him just to get money in the names of the minors. It was further stated that mother of the children also filed suit for recovery of maintenance at Liya Multan vide Suit No,41 of 1996 which was subsequently dismissed. However, petitioner admitted that due to aforesaid illegal acquirement of the custody of the minors by his ex-wife and their shifting to Liya he could not contact with the minors. He admitted to the extent that the minors were getting said education but after getting minors custody through aforesaid illegal means she is not entitled to get their maintenance. It was further stated that petitioner also filed Guardian and. Wards proceedings before the VIIIth Senior Civil Judge, Karachi East vide Guardian and Wards Application No,113 of 1999.
6. ' In this background, the learned trial Court framed the following issues:
(i) Whether the defendant is earning Rs,40,000 per month from his department of PIA?
(ii) Whether the plaintiffs Nos.1 and 2 are entitled of relief claimed. If yes, on what rate and from what period?
(iii) What should the decree be?
7. ' Both the parties adduced their evidence ultimately the learned trial Judge decreed the suit in favour of plaintiffs-respondents Nos.3 and 4.
8. ' Being aggrieved with the judgment and decree, dated 13-2-2001, the petitioner filed an appeal before the Court of learned Vth Additional District Judge, Karachi (East) who also maintained the judgment and decree of the learned trial Court and dismissed the appeal of the petitioner vide order, dated 15-6-2001 which has been impugned by the petitioner through this petition.
9. ' I have heard the learned counsel for the petitioner as well as the learned counsel appearing on behalf of respondents Nos.3 and 4.
10. ' It has been contended by the learned counsel for the petitioner that the orders, impugned in this Constitutional petition, are not only illegal, and without lawful authority but have been passed by the learned trial Court as well as the Appellate Court emotionally without applying judicial mind although the petitioner adduced evidence of his two witnesses in his support that he. Has liabilities of other children from his second wife and in spite of his salary being around Rs,37,000, is getting much low home taking salary after deducing different type of loans. It has, further, been contended that prior to the present proceedings, a suit for maintenance was also filed on behalf of respondents Nos.3 and 4 at Layia (Punjab) where mother of respondents Nos.3 and 4 shifted after she was divorced by the petitioner and the said suit was dismissed. As such, the present proceedings, being initiated on the same issue between the same parties, comes within the definition of 'res judicata'. The learned counsel has relied upon the cases of Iftikhar Hussain and another v. Muhammad Aslam and others (1991 M LD 1500), Javaid Akhtar Bhatti v. Deputy Commissioner and others (1991 M LD 1498) and Mehboob Ali v. The Director, Kachi Abadi and another (1996 M LD 865) in support of his contentions.
11. ' On the other hand, learned counsel appearing on behalf of respondents Nos.3 and 4 has contended that the learned trial Court after considering the entire matter passed judgment and decree in favour of respondents Nos.3 and 4 on merits which was even maintained at the appellate stage by the learned Additional District Judges Karachi (East). It has, furtehr, been contended that the petitioner divorced the mother of respondents Nos.3 and 4 in August, 1995 whereafter she shifted from Karachi to Layia (Punjab) where she filed suit for maintenance but the same was dismissed for non-prosecution, therefore, the contention, advanced on behalf the petitioner, that the present proceedings come within the definition of res judicata, is untenable. It has, also, been contended that, earlier, the learned 1st Additional District Judge, Karachi (East) remanded back the judgment and decree passed by the 1st Civil and Family Judge, Karachi (East) with the direction to assess the salary and personal belonging by calling the service record of the petitioner. Resultantly, the service record of the petitioner was called and it came on record that the petitioner being an employee of PIA, working in the capacity of Air-Craft Engineer, gets handsome salary of more than Rs,38,000 per month and he has also owned agricultural land in Punjab besides a house valuing of Rs,10 lacs.
12. ' On the basis of such assesment, the learned trial Judge passed the impugned judgment and decree which was maintained by the 1st Additional District Judge Karachi (East) vide her judgment, dated 15-6-2001 passed in Family Appeal No,22 of 2001. The learned counsel has relied upon the case of Danish Hussain v. Additional District Judge-I Central Karachi and others (2001 CLC 1214) in support of his contentions.
13. ' I have considered the arguments, advanced on behalf of both the parties, perused the record and gone through the case law cited, as above.
14. Perusal of record shows that the petitioner, after divorcing his first wife (mother of respondents Nos.3 and 4) contracted second marriage and out of the said wedlock he has also children whom he is maintaining very well but, though being real father of respondents Nos.3 and 4, neither he paid any amount for their maintenance nor has any knowledge about their education as well as health.
15. According to the Injunctions of Islam it is the duties and obligations of the petitioner to maintain the minors. The above facts reveal the status of the petitioner and as such it would be a rightful claim on the part of children (respondents Nos.3 and 4) to have their due maintenance looking to the standard of their father. It cannot be understood what lavish expenditure can be made from the maintenance allowance of Rs,10,000 per month or their mother which in these days would be hardly sufficient to meet their bare necessities. Looking to the standard of the petitioner and keeping in view his admission, clearly and unequivocally made with regard to non-payment of maintenance to respondents Nos.3 and 4 and also absence of knowledge about their education as well as health, I am of the firm view that the learned trial Court has fully adverted to the evidence on record and assessed the same in true perspective, therefore, the Appellate Court was wholly justified in not interfering with the same.
16. The decision (faisala) of the Punchayat Committee so relied upon by the petitioner cannot be considered since none of the parties has examined any witness in this behalf.
17. For what has been discussed above, I am of the considered view that this Constitutional petition has no force, which, accordingly, is dismissed.
18. ' C.P. No, S-377 of 2001 stands dismissed along with listed application.