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Petitioner: GHULAM MURTAZA VS Respondent: Mst. KHURSHID LUBNA and another
Court Name: Sindh High Court Judge(s): Agha Faisal Title: GHULAM MURTAZA vs Mst. KHURSHID LUBNA and another Case No.: C.P. No, S-819 of 2015 Date of Judgment:2018-02-27 Reported As: 2018 YLR 2003 Result: Petition dismissed
Judgment ORDER AGHA FAISAL, J.---The present petition was instituted in 2015, wherein the following relief was sought:-- "(a) That this Honourable Court may be pleased to declare/set aside he judgment and decree passed by respondent No,2 dated 12.08.2015 is illegal, suffers from misreading of evidence, illegality and is not based on evidence. (b) That this Honourable Court may be pleased to declare that grant of Rs,15000/- as maintenance is unjustified and illegal and without determination of quantum of medical expenses on the basis of cogent and positive evidence. Without considering that the petitioner is already paying maintenance of Rs, 3600/- per month with enhancement of 10% per annum. The second suit is barred by General Principles of res judicata. The quantum of maintenance was illegally fixed and without iota of evidence. (c) That the cost of the petition be granted. (d) That any other relief this Honourable Court deems fit be granted." 2. A brief encapsulation of the facts of the present case are delineated herein below:-- (i) The respondent No,1 had filed a suit, for dissolution of marriage, dower, dowry, maintenance and custody of her minor baby girl, against the petitioner, being Family Suit No,16 of 2011 before the Court of IInd Civil and Family Judge, Nawabshah (hereinafter referred to as the "Trial Court"), and the said suit was decreed in favour of the respondent No,1 herein vide the Judgment dated 25.08.2011. . (ii) It may be pertinent to reproduce the relevant portion of the aforesaid Judgment herein below: "ISSUE NO.3. This issue relates to with the custody of minor. Though defendant has raised legal
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objection in his written statement regarding, the jurisdiction of this court but at the time of arguments learned counsel for defendant has conceded the fact that mother is entitled to keep the custody of minor under law of Hizanat and he only prayed for visiting right of defendant. I have gone through the martial available on record. It is settled law that right of custody of minor is not an absolute right rather it is always subject to the welfare of the minor, the issue before me is to consider the question of custody of minor at this stage because minor Zahra is suckling baby and hardly aged about 11 months. In the light of law laid down by Supreme Court and the principles of Islamic law, it is not in the interest and welfare of minor to handover her custody to father at this stage but rather her welfare surely lies with her mother. As above mentioned Zahra is aged about 11 months and it is in her welfare that her custody be remained with her mother at least till she attains the age of puberty. Defendant being father is entitled to meet with the minor. I am of the considered opinion that minor should remain in custody of plaintiff with direction to give access to defendant to meet with Zahra in court on 14th of each calendar month for 3 hours and such._ time will gradually increase by half an hour per year. The issue is decided accordingly. ISSUE NO.4: Now finally question arises as to what reliefs are the plaintiff's entitled. In view of detail discussion, findings on Issues Nos,1 to 3 and for the reasons recorded herein above, I am of the humble opinion that the plaintiff is entitled for the grant of relief of maintenance for her Iddat period at the rate of Rs,2000/- per month, whereas, minor Zahra is entitled for the grant of maintenance at the rate of Rs,2500/- per month with effect from filing of suit till the age of puberty or marriage with 10% yearly increase until prove otherwise. The claim regarding the remaining dowry articles declined while the custody of minor will remain with mother. Defendant is entitled to meet with minor in court on 14th of each calendar month for 3 hours and such time will gradually increase by half an hour per year. Defendant further directed to deposit the Iddat period maintenance as well as past maintenance of minor within 30 days of passing of decree. He is further directed to deposit monthly maintenance of minor on or before 14th of each month. The suit of the plaint(ff is hereby partly allowed and partly dismissed with no order as to cost." (iii) Subsequent thereto, the respondent No,1 filed a suit for enhancement of the maintenance for the minor, on account of the expenses required for the medical treatment of the minor, being Family Suit No,269 of 2013 in the court of Family Judge, Nawabshah. The said suit was also decided in favour of the respondent No,1 vide the order dated 25.11.2014. (iv) It may be pertinent to reproduce the relevant portion of the aforesaid order herein below: "4. In order to arrive at a just conclusion brief look at evidence recorded before this court is also of paramount significance. Scanning of evidence record up till now shows that plaintiff and her witnesses have well corroborated their version so far the need of enhanced maintenance of medical grounds of minor ailing baby Zahra is concerned. On this point their credit remained un- impeached by the defence during cross. It is crystal clear from the scrutiny of evidence that plaintiff hails from a poor family and her father is truck driver by profession. Plaintiff has been successful to establish that minor baby Zahra aged about one and half year is suffering from chronic disease. Defendant has admitted during his cross-examination that he has contracted three marriages. Which proves the factum of his lavish way of life, affluence and prosperity which is contradiction of his stated version. Further defendant witness did not corroborate the defendant's claim regarding payment of maintenance. He stated in his cross "I do not know whether defendant is paying any medical expenses to ailing minor". Now here question arises the person who is real brother of defendant how he can be so ignorant of his private state of affairs. Besides there are material contradictions between the statements of defendant and his witness. It is pertinent to mention here that in order to ascertain the financial position of defendant this court appointed a commission (commission's report is available on record) according to which defendant owns an Electro Shops and deals in sale of new electronic items such as T.V, A.C, Fridge etc. which
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contradicts the claim of defendant to be a salesman of shop. It would be apt to quote a cardinal principle of law of evidence that "Man may tell a lie but documents not." There is ample material available on the record to conclude that the entire proclivity and demeanor of defendant throughout the proceedings is to somehow by hook or by crook seek the adjournments and to humiliate the plaintiff and to make her suffer from the mental torture and agony of protracted proceedings (since matter pertains to the year 2013) and to aggravate the suffering of ailing and diseased minor child. 5. Perusal of record shows that this court fixed the minimum amount of Rs,1000/- as interim maintenance of ailing minor pending adjudication of suit under section 17-A of West Pakistan Family Courts Act, 1964 vide order dated 23.09.2014. Thereafter plaintiff moved the application under discussion. Heard advocate for plaintiff, he argued that since the defendant has not only failed to pay interim maintenance of Rs,1000/- in compliance of court's order dated 23.09.2014 but also intentionally avoided and disgrace the order of this court, consequently defendant is amenable to the penal provisions contained in section 17-A of West Pakistan Family Courts Act, 1964, which is reproduced here for brevity and clearance and goes as; a) In a suit for maintenance of children, shall immediately after filing of the written statement pass order for maintenance; and b) In any other suit for maintenance, may at any stage of proceedings pass an interim order for maintenance where under the payment shall be made by 14th of each month in advance, failing which the court shall strike off the defence (Family Court (maintenance Act, 2008) date 19th August, 2009 as passed by the national assembly] On the other hand advocate for defendant opposed the application and contended that order has been challenged before competent forum and section 17-A has not been applied with facts of present case. The applicant has concealed the real facts from court and filed the second suit for enhancement of maintenance. Plaintiff is already receiving Rs,3300/- per month ordered in her first suit by the Civil Judge and JM-II. Matter is already under adjudication and fixed for evidence of defendant side and at this stage suit cannot be decreed and case is ripe up for conclusion hence the application is liable to be dismissed. Keeping in view the foregoing and attending circumstances this court is of the considered view that admittedly willful deliberate or contemptuous disobedience or non-compliance may attract penal consequences of striking off defence of party. Before having recourse to penal action family court should apply its judicial mind to the facts and circumstances of the whole case: In this respect the factum of non- payment of interim maintenance and medical expenses to a disable and ailing child who has no fault of her own for her present condition is cruelty and criminal negligence and should be taken seriously otherwise it would not be out of place to say that such acts of unblushing injustice might well make Words to groan out of his grave. This court is of the considered view that the application under discussion is fit case for attracting the penal consequences enunciated in the provision, of 5.17-A of West Pakistan Family Courts Act given the aforementioned facts of the case and conduct of defendant towards the court proceedings. ,Hence keeping in view all the circumstances the suit of plaintiff for enhancement of maintenance of ailing and disable minor baby Zahra aged about 1-1/2 years on medical grounds is decreed to the extent of Rs,15000/- (Fifteen thousand only) per month. No order as to the remaining prayers in the suit as the same have already been withdrawn by the plaintiff Defendant is directed to deposit enhanced maintenance of minor baby on or before 14th of every month in this court. Let such decree be prepared and a certified copy be sent to defendant through registered post A/D according to law." (v) The petitioner then filed an appeal against the aforesaid order, being Family Appeal No,01 of 2015 before the Ist Additional District Judge Shaheed Benazirabad and the same was dismissed
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vide the Judgment dated 12.08.2015. (vi) It may be pertinent to reproduce the relevant portion of the aforesaid judgment, which reads as follows: "Learned counsel for the appellant/defendant has argued that the learned trial Court has passed the order for interim maintenance at Rs,1000/- per month under section 17-A Family Courts Act, 1964, to the minor, but the same has not been deposited or paid by the appellant/respondent as he has already paying' maintenance to the minor at the rate of. Rs,3300/- per month in previously decreed suit for maintenance, therefore, there was no any need to pay any interim maintenance to the minor and due to that on the application of the learned counsel for the respondent/plaintiff decreed the suit in rest without taking into consideration that the minor has been provided maintenance. Learned counsel has also argued that the suit is not maintainable and the learned trial court has wrongly decreed the suit and prayed for setting aside the order dated 25.11.2014. On the other hand learned counsel for the respondent/plaintiff has argued that the minor is suffering from mental disease and she has been treated in hospital and in this respect respondent/plaintiff has produced numbers of medical certificate/receipts before learned trial court and on the medical ground the application for maintenance was moved, which is a fresh ground and fresh cause of action and previously the suit was decreed for maintenance of minor at the rate of Rs,3300/-, but now since the minor is not a normal child and is suffering for mental disease, therefore, respondent/plaintiff cannot afford the medical expenses of the minor and the appellant/defendant is father of minor is bound to provide the medical expenses to the minor and therefore, suit was filed and the same was decreed under the provisions of Section 17-A Family Courts Act, 1964. I have gone through the arguments of learned counsel for the both parties and material brought on the record and so also the evidence recorded by the learned trial court. The suit for maintenance for the minor is filed on the ground of Illness of the minor, as she is steering from mental disease and is a disabled child, therefore, in my humble view the father is duty bound to provide proper Medicare and medication to the minor child. Record shows that previously the suit was decreed for maintenance, but in that suit it was not mentioned that the minor was mentally ill and no any medical ground was taken, but this suit was filed only on the ground of illness of the minor, the maintenance is required for medical expenses, therefore, the suit is maintainable. The application under section 17-A Family Courts Act, 1964, was moved and learned trial Court has directed the appellant/respondent to pay the interim maintenance at Rs, 1000/- per month, but the learned trial court has struck of the defence and decreed the suit under section 17-A Family Courts Act, 1964. I would like to reproduce the Section 17-A Family Courts Act, 1964, which reads as under:- a) In a suit for maintenance of children, shall immediately after filing of the written statement pass order for maintenance; and b) In any other suit for maintenance, may at any state of proceedings pass an interim order for maintenance where under the payment shall be made by 14th of each month in advance, failing which the Court shall strike off the defence and decree the suit" In view of the above discussion, 1 am of the humble view since the appellant/defendant has not complied with the order, therefore, the learned trial Court has rightly struck of the defence and decreed the suit vide order dated 25.11.2014 and decree dated 02.12.2014, which needs no interference, hence, the appeal in hand is hereby stand di sinissed. There is no order as to cost." 3. The present controversy appears to be confined to the quantum of maintenance of the minor girl, who is stated to inter alia suffer from epilepsy and does not have control of her motor skills. 4. The arguments advanced by the learned Counsel for the petitioner in support of his contentions were as follows:
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(i) The learned Counsel for the petitioner has argued that irrespective of the medical condition of the petitioner's daughter, the quantum of maintenance has to be based upon the income and capacity of the petitioner and not upon any other factor. (ii) It is contended that the petitioner earns Rs,7000 to Rs,9000/- per month and does not have the means to pay the maintenance awarded by the concerned learned Family Courts. (iii)It was further contended that even though the gravity of the medical condition of the minor cannot be denied by the petitioner, as being a father he is well aware of the same, but that the respondent No,1 was unable to prove the said disability during the successive family suits and hence the question of maintenance should at best be remanded back to the concerned Family Court for re- determination. 5. The learned Counsel for the petitioner has relied on the case of M. Saleem Ahmad Siddiqui v.. Mst. Sabira Begum and others, reported as 2001 YLR 2329, and drew the Court's attention to the following paragraphs. - "4. The case of petitioner is primarily based on the plea that he draws a salary of Rs,2,838.90 as evidenced by the Salary Slip. It was vehemently contended that the petitioner would not be able to pay the aforesaid amount of maintenance which comes to Rs,4,300 per month. In this context it may be observed that the terms 'salary' and 'income' connote different aspects relating to one's earnings. Salary is the net amount of payment made for a fixed period usually a month, by the employer to the employee, whereas the term income is co-related to the entire earnings including the salary (or salaries if there are other jobs also) for the said period. No doubt the 'Income' and 'total earnings' cannot be confined to a particular salary, but then, in order to compel particular salary, but then, in order to compel the father to pay an amount of maintenance to his children beyond his salary it should be shown that his earning or say, the income was much more than that. 5. The judgment of trial court shows that the petitioner in his cross-examination in the trial court denied that he was doing any part time job. He had also denied that he was receiving rent from tenants to the tune of Rs,3,000/- per month. On the contrary he stated that he was beaten and driven out of the house by his children; and he left the house on 17.11.1997. Obviously, in such a situation the petitioner had to arrange a new accommodation incurring new expenditures. The trial court has, however, taken note of the admission by the petitioner that he used to pay Rs,5,000/- to respondent/plaintiff No,1 when he lived with her. This admission by itself is not enough to establish legitimate income of the petitioner. In the event of denial by the petitioner of any extra source of income the burden shifted to respondents to establish that the quantum of legal earnings of petitioner was much more than he ostensible income. It would be beyond the proportions of law and propriety to presume that the petitioner's admission that he paid Rs,5,000/- to his wife, prove his lawful income. 6. The learned Counsel then referred to the case of Syed Saleem Imtiaz Husssain through Syed Imtiaz Hussain v. Muhammad Salim and 02 others, reported as 2004 M LD 1548, and drew the Court's attention to the following passage:-- "I have heard the learned counsel for the parties. Undoubtedly the father is legally and morally bound to maintain his child. One of the criteria for determining the quantum of maintenance, obviously is the income and status of the father, but it does not mean that, by taking the total income of the father and dividing it on some subjective and unknown principles, the Court should grant allowance on unfounded mathematical rule. The Court of law cannot act whimsically, and in a capricious manner, but is supposed to find out from the evidence on the record, as to what is the requirement of the minor for the purpose of his subsistence, which means the support to his life; this definitely includes the food, clothing, lodging, education, medical care and some amount for extracurricular activities of the minor etc. Unfortunately, the learned Court below has neither
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undertaken this exercise, nor it has been so proved by the respondent on the record, that for his subsistence, the amount of Rs,34000/- per month is essential. Moreover, while passing the judgment, under condition No,5, only the amount of 20% of the maintenance allowance of Rs,34,000/- has been directed to be spent upon the minor, which comes to about Rs,7000. Whereas, for the remaining amount of Rs,27,000/-, the mother has been directed to purchase the Defence Saving Certificates in the name of the minor, which shall only be en-cashable, when the minor attains the age of majority. This part of the judgment has not been challenged by the respondents. The above, therefore, clearly shows that the learned Court below in fact has granted Rs,7000/- as maintenance to the minor and this cannot be reduced having been fixed by a Court of competent jurisdiction, but the balance of Rs,27,000/- per month is for his future security. I am not convinced, if the maintenance, which undoubtedly is in the nature of a support allowance meant for the purposes mentioned above, can be equated with the future security of the minor, usable by him after he attains the age of majority. Therefore, such judgment and decree cannot be sustained. 7. Thereafter, the learned Counsel cited the case of Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 02 others, reported as PLD 2009 Supreme Court 760, and drew the Court's attention to the following paragraphs:-- "9. We have given our anxious consideration to the entire facts and circumstances of the case, the minors are entitled to be maintained by the father in the manner befitting the status and financial condition for the father and for this reason the Family Court is under an obligation while granting the maintenance allowance, to keep in mind the financial condition and status of the father. It has to make an inquiry in this regard. It cannot act arbitrarily or whimsically. Furthermore, at the same time, the unjust enrichment for the minors cannot be permitted at the cost of the father. In the present case, there is nothing on the record to show that the appellant is a rich man and can afford paying at the end, Rs,6.88 crores to the minors towards their maintenance. We have also noticed that the Family Court had no basis before it and had no criteria for awarding 20% annual increase in the maintenance allowance granted by it and it gave no reasons for ordering such an increase. It thus acted arbitrarily, illegally and whimsically in awarding such an exorbitant annual increase in the maintenance allowance. There was no justification for the annual increase of maintenance allowed at the rate of 20%. It was not a reasonable exercise of authority by the Family Court. It is well settled that the judicial officers are required to act justly and fairly and reasonably in discharge of judicial functions. The argument that school fees of the minors are more than the rate of maintenance allowance granted by the Family Court, therefore, the annual increase granted by the Family Court should not be interfered with, has also no force. The mother, if she so desires or can afford, may put the children in expensive schools but the father's obligation to maintain the minors is only to the extent of his status and financial condition and the Family Court must keep these factors in mind while granting maintenance allowance. 10. There is no cavil to the proposition that the executing court cannot go behind the decree but at the same time the executing Court can look into the questions whether the decree or part thereof is executable or inexecutable and if for any reason the decree has become inexecutable, the executing court is empowered to declare so and if a part of the decree is inexecutable and that part is severable from other part(s) of the decree then the executing court is empowered to refuse the execution of the inexecutable part of the decree and may proceed with the execution of the rest of the decree. In the present case, there is nothing on the record to show that the appellant has the means to pay the increase as ordered by the trial Court. As for the future prospects, the minors can always approach the Family court for the increase in the maintenance allowance due to any chance in the circumstances. The impugned judgments of the High Court and the Courts below are, therefore, not sustainable to the extent of annual increase of 20% in the maintenance
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allowance of the respondent's minors who shall be entitled only to the 5% annual increase in such an allowance as offered by learned counsel for the appellant, which in our opinion will meet the ends of justice." 8. The learned Counsel also cited the case of Muhammad Aslam v. Muhammad Usman and others, reported as 2004 CLC 473, and drew the Court's attention to the following paragraphs:-- "6. In view of judgment M. Saleem Ahmad Siddiqui v. Mst. Sabira Begum and cthers 2001 YLR 2329 the salary cannot be attached beyond half of it. Islam does not compel a person to do an act beyond capacity, therefore, social status of the petitioner and level of legitimate financial sources which are eminent factors for deciding the quantum of maintenance shall not be ignored. "7. In the present case these aspects have not been dilated upon by the learned Courts below with realistic approach not the evidence is appraised with the precision. The petitioner has given oral account of the income of the defendant but she has not produced the evidence. At this stage, the learned counsel for the petitioner submits that he is drawing near about Rs,15,000/- as his salary, therefore, the fixation of quantum of near about Rs,15,000/- per head to my view is not correct and even the maintenance of Rs,5,000/- per head to my view is not correct and even the admission of the petitioner that he…
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