Mst. SHAZIA ZAHOOR Versus ARSHAD SULTAN

ARSHAD MAHMOOD TABASSUM, J.--- Mst. Shazia Zahoor, wife, petitioner No.1, and Mst. Hamna Emaan, minor daughter petitioner No. 2 of Arshad Sultan, respondent No.1, herein on 5-10-2010, instituted suit for recovery of maintenance allowance against respondent No.1. The petitioner No.1 claimed maintenance for the period of Iddat at the rate of Rs.10,000 per month total amounting to Rs.30,000, whereas, the minor claimed her maintenance allowance at the rate of Rs. 10,000 per month total amounting to Rs. 6,40,000 being past maintenance allowance and at same rate for future maintenance allowance. The suit was contested by the respondent apart from filing an application under section 25 of the Guardians and Wards Act, 1890, for the custody of the minor. The learned Judge Family Court, after framing relevant issues put the parties to trial. Both the parties produced their pro and contra evidence, and ultimately, the learned Judge Family Court decreed the suit of the petitioners-plaintiffs vide judgment and decree dated 9-12-2011. Petitioner No.1 was awarded maintenance allowance for the period of Iddat at the rate of Rs. 5000 per month, whereas past maintenance allowance for the minor was fixed @ Rs. 1500 per month from the date of her birth i.e. 29-4-2005 till the institution of the suit, and thereafter at the rate of Rs. 3000 per month from the institution of the suit till her legal entitlement, with 10% annual increase. The application for custody of minor filed by the respondent was, however, dismissed. Both the petitioners preferred an appeal against the judgment and decree dated 9-12-2011 passed by the learned JFC, claiming enhancement in the rate of maintenance allowance as had been prayed by them in the suit. The said appeal was, however, dismissed by the learned first appellate court vide judgment and decree dated 10-4-2012, hence this petition.

2. Having heard the learned counsel for the parties and perusing the documents annexed with this petition, it is observed that the learned first appellate court dismissed the appeal of the petitioners with the following observations:--

"As far as maintenance allowance of Hamna minor is concerned, she is getting education under the supervision of her mother. Learned trial judge only decreed Rs. 3000 pm as maintenance with 10 % annual increase. No doubt the respondent is public servant but it is an admitted fact that he got three kids from his second wedlock. In addition to that the respondent has also his parents with him and he is looking after both his parents from his resources. Except salary no detail of resources of the respondent has been provided. In the said situation to my mind Rs. 3000 pm maintenance allowance of minor is reasonable amount which is to be increased annually as 10 %. Therefore, the learned trial Judge has rightly addressed the said situation."

3. Having considered what has been observed by the learned first appellate court in his impugned judgment, it appears that the same suffers from misreading and nonreading of evidence available on record. To substantiate this observation, it may be pointed out that monthly income of the respondent-father, as admitted by him during his cross-examination is Rs. 34.000 while he is also drawing an amount of Rs. 8539 on account of hiring of his accommodation. He is residing in a double storey house which belongs to his father. So has been stated by DW-2 in his cross-examination in the following words:--

Although learned counsel for the respondent during the course of his arguments has argued that the respondent father has to maintain his old ailing parents, his brother and sister as well, but the record suggests otherwise. In this regard, a portion of the statement of respondent-father which he made during cross-examination, is quite relevant which reads as under:--

Similarly he states:-

DW2 also states during cross-examination:-

Respondent father also further states during cross-examination:--

The above reproduced portions of the evidence of the respondent clearly indicate that he has no liability to maintain his parents or his brother and sisters rather his father is having some income through his pension, whereas his brother is also doing Job in a Bank. As per claim of respondent himself the said brother of his is also maintaining his motor car. The monthly income of the respondent as pointed out above including his income from agricultural land suggests that he can pay more than the amount decreed by the learned JFC towards the maintenance allowance. It is also noteworthy that there is inflationary trend in the economy and an amount of Rs. 3000 in the circumstances of the case appears to be insufficient to cater for the needs of the minor, who is also getting education, therefore, to my mind, past maintenance allowance as also future maintenance allowance awarded to the minor by the learned JFC requires to be enhanced. Accordingly, by allowing the instant petition the past maintenance allowance to the minor is fixed at Rs. 2000 per month, whereas, the future maintenance allowance of the said minor is fixed at the rate of Rs. 5000 pm with 10% annual increase.

4. This petition is allowed in the above terms by modifying the impugned decree accordingly.

AG/S-117/L Petition allowed.