IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Const. Petition No.S-263 of 2021

Petitioner Khursheed Ahmed son of Raheem Dad Shaikh

through Mr. Sarfraz A. Akhund, Advocate.

Respondents 1 to 5 Tasmeena Shaikh & 4 others

through Mr. Abdul Mujeeb Shaikh, Advocate.

Respondent 6 & 7 The Family Judge, Sukkur

The District Judge, Sukkur

through Mr. Mehboob Ali Wassan, Assistant

Advocate General.

Date of hearing 26.09.2022

Date of order 14.10.2022

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O R D E R

SHAMSUDDIN ABBASI, J:- By means of instant constitution petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks following relief(s):-

(a) To issue writ of certiorari whereby declaring that the judgment and decree dated 29.06.2021 passed by Family Court Sukkur in F.C. Suit No.126/2020 and judgment and decree dated 15.10.2021 passed by District Courts in three consolidated family appeals viz No.22/2021, 24/2021 and 25/2021 have been passed without lawful authority, hence of no legal effects, hence the Family Suit No.126/2020 is liable to be dismissed.

(b) To award cost of the petition and grant any other relief as deem fit.

2. Respondents 1 to 4 namely, Tasmeena Shaikh, Bilqees Shaikh, Aiman Rani and Dua Rani, are daughters of petitioner whereas respondent No.5 namely, Mst. Imtiaz Khatoon, was his wife. They filed Suit No.126 of 2020 claiming maintenance @ Rs.20,000/- per month each from July 2011 till filing of the suit as well as a direction to the petitioner to deposit Rs.20,000/- per month each with the learned trial Court for welfare of Respondents 1 to 4 till their marriage. It is averred in the plaint that due to a dispute, the respondent No.5 alongwith her children (respondents 1 to 4) shifted to her parents’ house all expenses relating to their health and education were borne by her father and after his death by her brother, who was retired from SEPCO.

3. The petitioner contested the suit and filed his written statement, wherein he has denied all the allegations leveled against him by the respondents. It is stated that respondent No.5 is a disobedient wife and she at her own left his house despite he paid maintenance to her @ Rs.8,000/- to Rs.10,000/- per month through her brother Ahmed Ali and insofar as respondents 1 to 4 are concerned, he is ready to keep his daughters at his house and also to maintain them.

4. The issues were framed. The parties led their evidence. The learned Family Judge, Sukkur, after hearing the parties’ respective counsel, partly decreed the suit vide judgment and decree dated 29.06.2021 granting past maintenance @ Rs.5,000/- per month for respondent No.5 from January 2019 till filing of the suit and Rs.7,000/- per month till her divorce and Rs.10,000/- per month as Iddat maintenance and a sum of Rs.30,000/- for three months of her Iddat period as well as Rs.5,000/- each per month for respondents 1 to 4 as past maintenance from January 2019 till filing of the suit and Rs.7,000/- each per month since filing of the suit till the date of judgment and Rs.8,000/- each per month as future maintenance with 10% annual increment.

5. Impugning the judgment and decree passed by the learned Family Court, the respondents 1 to 4 (daughters) filed appeal (Family Appeal No.22 of 2021) whereas respondent No.5 (wife) filed appeal (Family Appeal No.25 of 2021) seeking modification and enhancement of their maintenance as prayed in Suit No.126 of 2020. The petitioner, on the other hand, filed appeal (Family Appeal No.24 of 2021), mainly agitating that the findings recorded in the impugned judgment and decree are based on technicalities and not on merits, hence liable to be set-aside.

6. The proceedings in three appeals come to an end vide judgment and decree dated 15.10.2021, penned down by the learned District Judge, Sukkur, whereby the appeal filed by the petitioner was dismissed while the two appeals filed by the respondents 1 to 4 and respondent No.5 were allowed with modification observing as follows:-

“19……….Here the father of children deliberately concealed his salary and on showing his salary slip he admitted about drawing Rs.224,000/- (two lac twenty four thousand). In order to evaluate status of father with regard his monthly income the maintenance for each daughter fixed by Family Judge in light of above discussion as Rs.5000/- since January 2019 till filing the Family Suit, Rs.7000/- per month, since filing the Family Suit up till the judgment dated 29.06.2021 and Rs.8,000/- per month for future maintenance with 10% increment without justification to consider the monthly earning of Khursheed Ahmed, which is required to be considered, therefore, the maintenance amount evaluated by Family Judge for children is modified and same is enhanced to the extent of Rs.15000/- per month for each daughter from the period of six year before filing of the above suit up till the impugned judgment passed on 29.06.2021 and so also for future maintenance at the same rate of Rs.15000/- per month for each daughter with 10% annual increment.

20. The maintenance assessed by Family Judge for Mst. Imtiaz Khatoon at the rate of Rs.5000/- per month from January 2019 does not appear to be justified. The past maintenance though claimed for last nine (9) years could not be allowed being beyond the period of limitation but the law provides a period of six years from the date of claiming the maintenance governed by Article 120 of the Limitation Act, 1908 from the date of accrual of cause of action as held in PLD 2005 Peshawar 194 (re: Mst. Anar Mamana and another vs. Misal Gul @ 2 others). In this regard, reliance is also placed upon 2017 CLC Note 26 (Re: Zahir Shah vs. Mst. Seema & others). Accordingly the same is hereby modified and enhanced upto the rate of Rs.10,000/- per month for the previous period of six years from the date of Divorce Deed executed by Khursheed Ahmed when he divorced her. She is also entitled for her maintenance during Iddat period Ordained by Almighty Allah in Ayat No.6 & 7 of Surah-e-Tal’aq elaborated with English transaction as under:-

“ Lodge them [in a Section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then stand of them until they given birth. And if they breastfeed for you, then give them their payment and confer among yourself in the acceptable way; but if you are in discord then there may breastfeed for the father another women.

Let a man of wealth spend is restricted wealth, and he whose provision is restricted let him spend from what Allah has given him. Allah does not charge a soul except [according to} what He Has given it, Allah will bring about, after hardship, ease”.

21. It is observed that the appellant never stated before Family Court about his liabilities to maintain his old parents, two unmarried sisters and one sister being widow as mentioned at ground No.5 of the memo of appeal No.24 of 2021 and it appears that he raised the above ground being after thoughts while filing the above appeal. Be that as it may, the appellant Khursheed Ahmed was liable to have prove the same by adducing evidence of his sisters or parents, for which, he failed to give any explanation. Consequently, Mst. Imtiaz Khatoon is entitled for her maintenance for three months Iddat period at the rate of Rs.10,000/- per month as fixed by Family Judge is maintained”.

7. Aggrieved of consolidated Judgment passed in aforesaid appeals, the petitioner has filed this petition on the ground that the findings recorded in the impugned judgments are harsh and contrary to his income, hence liable to be reversed.

8. Heard and record perused minutely.

9. Reviewing the claim of the respondents 1 to 5 in Suit No.126 of 2020, it is noted that, they claimed Rs.20,000/- per month for each from July 2011 till filing of the suit as well as a direction to the petitioner to deposit Rs.20,000/- per month with the learned trial Court for welfare of each daughter till their marriage. In support of their claim, the respondents 1, 2 and 5 examined themselves and also produced Mazhar Ali, as their witness. On the other hand, the petitioner appeared in the witness box and also produced Muhammad Imran as his witness. The learned Family Court did not agree with the rate of maintenance as claimed by the respondents 1 to 5 in its entirety, but held the petitioner liable to pay maintenance to them and granted Rs.5,000/- per month towards past maintenance for respondent No.5 from January 2019 till filing of the suit and Rs.7,000/- per month till divorce and Rs.10,000/- per month towards her Iddat maintenance and a further sum of Rs.30,000/- for three months of her Iddat period as well as Rs.5,000/- per month for each daughter towards past maintenance from January 2019 till filing of the suit and Rs.7,000/- per month for each of them since filing of the suit till the date of judgment and Rs.8,000/- per month towards their future maintenance with 10% annual increment. The learned appellant Court agreed with the findings recorded by the learned Family Court granting maintenance to respondents 1 to 5, it only differ the findings to the extent of rate of maintenance fixed by the learned Family Court and hold that the rate of maintenance fixed by the learned Family Court is unjustified in view of the fact that the petitioner has concealed his actual income of Rs.224,000/- per month and tried to misguide the Court, hence he is liable to pay maintenance to the respondents 1 to 5 at the enhanced rate, referred herein above, and not at the rate fixed by the learned Family Judge and, thus, modified the judgment and decree passed by the learned Family Judge to that extent only.

10. The respondents 1 to 5 in their plaint have claimed that the petitioner is an engineer in Sui Southern Gas Company (SSGC) and drawing salary of more than Rs.200,000/-. They have also supported the fact of drawing such a handsome salary in their evidence while appearing before the learned Family Judge. The petitioner, on the other hand, concealed his actual income in his pleadings. He only admitted when his salary slips were confronted to him, which shows his designation as Deputy Chief Engineer in SSGC and his gross salary as Rs.224,698/-, available at page No.215 and 217 of the file. Insofar as the contention of learned counsel for the petitioner that the judgment, impugned herein, is bad in law and facts and contrary to his income is not legally correct in view of my foregoing discussion. I am convinced that appellate Court has appreciated the evidence brought on record in line with the documentary evidence and scrutinized the material available on record in complete adherence to the principles settled by the Hon’ble apex Courts in various pronouncements and has reached a just conclusion that the petitioner while drawing handsome salary of more than Rs.200,000/- has concealed his actual income from the Court, hence liable to pay maintenance to respondents 1 to 5 at the enhanced rate as per his status and income and not at the rate fixed by the learned Family Judge. The learned appellate Court while holding that the petitioner has concealed his actual income from the Court has placed reliance on the case of Saifullah Bajwa vs Mst. Sajida Manzoor & 2 others (PLD 2020 Lahore 343) and also referred Ayyat No.6 and 7 of Surah-e-Tal’aq while granting maintenance at the enhanced rate including the maintenance of respondent No.5 for her Iddat period. I am, therefore, of the view that the impugned judgment and decree, passed by the learned District Judge, Sukkur, is based on fair evaluation of evidence and documents brought on record. As to the contention raised by the learned counsel for the petitioner that impugned judgment passed by the learned appellate Court is harsh because the petitioner is also maintaining his old parents, two unmarried sisters and another sister, who is a widow and obtained loan. I am clear in mind that petitioner neither have a right to have a new plea and seek a decision on the basis such pleas nor can such a pleas be allowed to be raised and entertained at subsequent stage when the same has not been agitated before the Family Court. The petitioner has also not produced his parents and sisters before the learned Family Court for recording their evidence to substantiate that his parents and three sisters are also his dependents and obtained loan after passing impugned judgment. This argument, on the face of it, seems to be after thought and misconceived and the learned appellate Court has rightly discarded the same.

11. Under constitutional jurisdiction re-appraisal of evidence in order to have a different conclusion than already inferred by a Court of competent jurisdiction has never been considered an option to be upheld. The Court under constitutional jurisdiction has to see whether any illegality has been committed or the findings of the fact are based on material extraneous to the pleadings of the parties to justify interference on its part. The learned counsel for the petitioner too failed to point out any illegality or irregularity and/or jurisdictional defect in the impugned judgment warranting interference by this Court while exercising extra ordinary constitutional jurisdiction. The impugned judgment and decree dated 15.10.2021, passed by the learned District Judge, Sukkur, is well reasoned and according to law, therefore, there is no reason to interfere more particularly when the same are outcome a proper application of judicial mind to the facts and circumstances of the case. Thus, this Court is hesitant to interfere. Resultantly, the instant petition is bereft of merit stands dismissed and the judgment and decree passed by the learned appellate Court is upheld.

JUDGE