2022 M L D 731

[Lahore]
Before Safdar Saleem Shahid, J
SAMIA ANWAR and another---Petitioners
Versus
NASIR HUSSAIN and 2 others---Respondents
Writ Petition No.32224 of 2015, decided on 10th January, 2022.
(a) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Suit for recovery of maintenance, delivery charges and dowry
articles---Petitioner/plaintiffs (wife) claimed that respondent (husband) behaved
cruelly and ousted the petitioner from his house (in 4th month of marriage); that
minor was born out of wedlock; that respondent was working abroad and owned land
and could pay maintenance of Rs.30,000/- per head/per month; that he pronounced
divorce; that he had refused to pay maintenance and delivery charges of Rs.40,000/ -
incurred by petitioner---Respondent, in written statement, alleged that petitioner left
his house nearly 4 years after marriage and refused to rehabilitate; that on petitioner's
demand, he pronounced divorce on 20/05/2013; and that he was ready to return dowry
articles as per his list attached with written statement---Trial Court decreed suit
holding the wife entitled to recover of Rs.7000/- per month as maintenance till the
period of Iddat, whereas minor was held entitled to Rs.7000/- per month from the said
date; and suit to the extent of recovery of delivery expenses was dismissed---Appeals
filed by both parties were dismissed by District Court---Held, that matter regarding
recovery of dowry articles was settled during pendency of suit---Petitioner/wife
admitted in cross-examination that minor was born in hospital through normal
delivery; that she had no proof regarding financial income of respondent---Courts
below had concurrently fixed the maintenance allowance @ Rs.7000/- per month after
due consideration of the needs/requirements of minor andby taking into account
financial status of respondent---Constitutional petition was dismissed accordingly.
Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through L.Rs.
and others 2015 SCMR 1081 rel.

(b) Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Maintenance, re-fixation of---Determining factor---Financial status--
-Principle---Family Court had exclusive jurisdiction relating to maintenance
allowance and matters connected therewith---If the granted rate for per month
allowance was insufficient/inadequate, institution of fresh suit was not necessary,
rather the Family Court may entertain any such application---Court may
increase/decrease the maintenance after considering financial status of
husband/father---For enhancement of maintenance allowance on behalf of minors,
application could be filed by the person having custody of minors---If maintenance
allowance was fixed without considering the financial status of person who had been
burdened with such future financial liability, he could file application for re-fixation
of maintenance allowance.
S.M. Zeeshan Mirza, Rana Muhammad Majid, Zaheer Abbas, Tahir Mahmood
Mughal and Naveed Khalid Rana for Petitioners.
Nemo for Respondent No.1.

ORDER
SAFDAR SALEEM SHAHID, J.----This petition is directed against
concurrent judgments and decrees dated 23.01.2015 and 04.05.2015 passed by the
learned Judge Family Court and learned Additional District Judge, Gujrat.
2. Brief facts necessary for decision of the instant petition are that the petitioners
filed a suit for recovery of maintenance allowance, delivery charges and dowry
articles, alleging that petitioner No.1 was married with respondent No.1 on
23.07.2009 but behavior of respondent No.1 remained cruel and ultimately he ousted
petitioner No.1 from his house in November, 2009, whereafter a son (petitioner No.2)
was born out of the wedlock. It was claimed that respondent No.1 works in Dubai and
also owns landed property and can easily pay maintenance allowance of Rs.30,000/-
per head per month. According to the petitioners respondent No.1 has pronounced
divorce, but has refused to return the dowry articles given to petitioner No.1 by her
parents at the time of marriage and has also refused to pay maintenance allowance
and the delivery charges Rs.40,000/- incurred by petitioner No.1. The suit was
contested by respondent No.1 by filing written statement, wherein he alleged that
petitioner No.1 left his house on 30.04.2013 and refused to rehabilitate as such on her
demand he pronounced divorce on 20.05.2013 and that he is ready to return the dowry
articles as per list attached with the written statement, which are lying with him.
3. Out of divergent pleadings of the parties, the learned trial Court framed issues,
recorded evidence of the parties and after having gone through the same partially
decreed the suit holding petitioner No.1 entitled to recover Rs.7000/- per month as
maintenance allowance from 30.04.2013 till the period of Iddat, whereas petitioner
No.2 was held entitled to recover Rs.7000/- per month as maintenance allowance
from 30.04.2013 till his legal entitlement with the direction that the interim
maintenance allowance already given shall be adjusted in his maintenance. The suit to
the extent of recovery of delivery expenses was, however, dismissed, whereas to the
extent of recovery of dowry articles the same was dismissed as withdrawn. Both the
parties assailed the judgment by filing their respective appeals, but both the appeals
were dismissed by the learned Additional District Judge.
4. Despite repeated calls no one appeared on behalf of respondent No.1, hence he
is proceeded against ex parte. The case has been taken up for hearing with the
assistance of the learned counsel for the petitioner.
5. The petitioners have filed the instant petition with the prayer that by setting
aside the judgments and decrees of both the Courts below, their suit be decreed as
prayed for. Matter regarding recovery of dowry articles was settled during the
pendency of the suit, whereas since in her cross-examination petitioner No.1 had
admitted that Ali Hassan minor was born in a hospital through a normal delivery, the
suit to the extent of recovery of delivery expenses was rightly dismissed by the Courts
below. As regards prayer for grant of maintenance allowance, petitioner No.1
admitted in her cross-examination that there was no proof with her regarding financial
income of respondent No.1. In the circumstances, learned Courts below decreed the
suit holding the petitioners entitled to recover the maintenance allowance at the rate
of Rs.7000/- per month each for the periods mentioned against each of them. Courts
below have concurrently fixed the maintenance allowance after giving due
consideration to the needs/requirements of the minor and by taking into account the
financial status of respondent No.1. Besides, the concurrent findings of facts recorded
by the Courts below do not suffer from any illegality, infirmity or perversity, which
could convince to interfere in the same while exercising constitutional jurisdiction of
this Court. In this regard reliance can be placed upon the case of Syed Hussain Naqvi
and others v. Mst. Begum Zakara Chatha through L.Rs. and others (2015 SCMR
1081), wherein it has been held as under:-
"15. There are concurrent findings of fact recorded by the learned courts below
against the appellants. This Court in Muhammad Shafi and others v. Sultan
(2007 SCMR 1602) while relying on case-law from Indian jurisdiction as well
as from the Pakistani jurisdiction has candidly held that this Court could not
go behind concurrent findings of fact "unless it can be shown that the finding
is on the face of it against the evidence or so patently improbable, or perverse
that to accept it could amount to perpetuating a grave miscarriage of justice, or
if there has been any misapplication of principle relating to appreciation of
evidence or finally, if the finding could be demonstrated to be physically
impossible." No such thing could be brought on record to warrant interference
by this Court."
6. Furthermore, legislature has established the Family Courts for expeditious
settlement and disposal of the disputes relating to marriage, family affairs and the
matters connected therewith. Under the provision of section 5 of the Family Courts
Act, the Family Court is vested with the exclusive jurisdiction to entertain and
adjudicate upon the matter specified in the schedule. The matter of maintenance is at
serial No.3 in the schedule. Thus, the Family Court has exclusive jurisdiction relating
to maintenance allowance and the matters connected therewith. Once a decree by the
Family Court in a suit for maintenance is granted thereafter, if the granted rate for per
month allowance is insufficient and inadequate, in that case, according to scheme of
law, institution of fresh suit is not necessary rather the Family Court may entertain
any such application and if necessary make alteration in the rate of maintenance
allowance.
7. In the circumstances, in case the petitioners think the rate of maintenance at
lower side, they can move application before the learned trial Court which is
empowered to increase the same after having considered financial status of
respondent No.1. It is statutory provision, that for enhancement of maintenance
allowance on behalf of the minors, the application can be filed by the person, having
custody of the minors; similarly if the maintenance allowance is fixed without
considering the financial status of the person, who has been burdened with such future
financial liability can file application for re-fixation of maintenance allowance in
view of financial status of the person is also entertainable under the same analogy.
8. The learned counsel for the petitioner has been unable to point out any
exercise of excess of jurisdiction by the learned Courts below or indeed that their
decisions are perverse. The learned counsel for the petitioner has similarly been
unable to point out any illegality or material irregularity having been committed by
the learned Courts below. Under the circumstances this petition fails and is
accordingly dismissed with no order as to costs.
ZH/S-13/L Petition dismissed.
;