ARBAB MIR MUHAMMAD Versus Mst. IRAM ILTIMAS

SYED DEEDAR HUSSAIN SHAH, J.-- -Petitioner seeks leave to appeal against judgment dated 4-6-2002, passed by a learned Division Bench of the Peshawar High Court, Peshawar, in Writ Petition No.412 of 2000.

2. Briefly stated the facts of the case are that the petitioner was married with Mst. Iram Iltimas and out of this wedlock two sons, namely, Arbab Taimoor and Arbab Zeshan were born, but unfortunately, the marriage ended in divorce. The learned Judge, Family Court, in suit filed by respondents Nos. 1 to 3, granted decree for maintenance allowance at the rate of Rs.1,000 each with effect from April, 1984 vide judgment dated 21-6-1986. During the execution of the decree for maintenance, the Judge Family Court, after hearing the parties and keeping in view the prevailing socio-economic conditions of the country, enhanced the maintenance amount from Rs.1,000 to Rs.4,000 each vide order dated 16-7-1998. The petitioner challenged this enhancement by filing appeal but the same was dismissed by the Additional District Judge through judgment dated 11-2-1999. The petitioner again approached executing Court submitting that his son Arbab Taimoor has attained majority and he is not liable to maintain him, consequently, his application was dismissed. Petitioner assailed this order before the appellate authority and the learned Additional District Judge, after hearing the parties, dismissed the same vide order dated 3-4-2000 on a variety of grounds specifically for the reason that the petitioner is well to do person and his son Arbab Taimoor was getting education and has not completed the same.

3. While the writ petition was pending decision, the petitioner was directed to deposit an amount of Rs.3,87,000 with the Registrar of the Court within a period of two weeks as arrears of maintenance for his son Arbab Taimoor. The petitioner again assailed this order by filing C.P. No.93-P of 2002 before this Court, which was also dismissed on 6-3-2002 with the observation that "the amount if deposited, shall remain with the Court and ultimately shall be disbursed according to the judgment to be rendered in the writ petition filed by the petitioner". During pendency of the writ petition, he filed C.M.No.474 of 2002 for correction of the arrears of maintenance mentioned in order dated 19-2-2002. The learned High Court, after hearing the parties, dismissed the same. Hence, this petition for leave to appeal.

4. Mr. Abdul Samad Khan, learned Advocate Supreme Court for the petitioner, inter alia, contended that legally the petitioner was not bound to maintain his son because the son had attained the age of majority. He referred to section 370 of Mahomedan Law by D.F. Mulla and reiterated that a father in any case is not bound to provide maintenance to his adult son unless she is disabled or infirm.

5. Mr. Muhammad Munir Paracha, learned counsel for respondent No.1 controverted the contentions of the learned counsel for the petitioner and supported the impugned judgment, and pointed out that the petitioner is a man of means and has sufficient property. The petitioner has inherited a huge agricultural and commercial property from his father; that he has a house on the main University Road which spreads over two acres of land and that his two sons from his other wife are living and enjoying luxuries of life from the income of the petitioner, each of them have been provided a car and none of them has taken any job/service, whereas Arbab Taimoor is getting education in a well reputed institution and mere maintenance of Rs.4,000 awarded by the Judge Family Court and maintained by the First Appellate Court and upheld by the learned High Court, does not require any interference.

6. We have considered the arguments of the learned counsel for the parties and carefully examined the record available. It is admitted fact that the petitioner is well-to-do person and providing luxury of life to other sons from his other wife by providing Car to each one of them, which fact is not denied by the petitioner. The maintenance allowance awarded by the Courts below is entirely in consonance with the law, which is purely for the welfare of the sons of the petitioner. The discriminatory treatment so given by the petitioner between his sons, has rightly been considered by the Courts below.

7. The impugned judgment is based on the proper appreciation of the material available with the Court and is also based on the well-settled principles of equity, fair play and justice.

8. For the facts, circumstances and reasons stated hereinabove, we are of the firm opinion that the petition is without merit and substance, which is hereby dismissed and leave dismissed.

M.H./A-99/S Petition dismissed.