ASHFAQUR REHMAN Versus DISTRICT JUDGE

ORDER

1. For orders on Misc. No. 54/89.

2. For Katcha Peshi.

1. Granted subject to all just exceptions.

2. This Constitutional petition is directed against the judgment dated 26-2 1989 passed by the District Judge, Karachi Central, whereby he dismissed the appeal filed by the appellant and affirmed the judgment and decree dated 31 5-1988 passed by the IXth Civil and Family Judge, Karachi West.

The facts leading to the filing of the above petition are that the respondent No. 3 through her mother filed a suit for recovery of maintenance allowance under Section 5, Family Courts Act, 1964. The case as set out in the plaint was that she is a minor aged about four years. Since last over one and half years she has been completely neglected and not maintained at all by the petitioner without any lawful excuse. The further case of the respondent No. 3 was that although she is m custody of her mother under the principle of `HIZANAT', yet under law and principles of Islamic Shariat, it is the bounden duty of the petitioner to pay allowance for the maintenance of the minor until she attains the age of puberty, no matter wherever she stays. The further case of the respondent was that the petitioner has substantial means of earning as he is employed in a State-owned firm and is drawing handsome salary of more than 10,000 per month. The respondent No. 3 claimed Rs. 1,000 per month. The petitioner resisted the suit. The petitioner pleaded in his written statement that the income shown is very high. The learned Family Judge framed the following issues:-

"(1) What is the salary of defendant ?

(2) Whether plaintiff is entitled for recovery of past maintenance ?

(3) Whether plaintiff is entitled for recovery of future maintenance and for what rate ?

(4) What should the decree be ?"

The learned Family Judge on assessment of the evidence observed that the income of Rs.10,000 appeared to be genuine. The Family Judge came to the conclusion that Rs.1,000 per month is too much. She allowed part maintenance at the rate of Rs.200 per month for the period July, 1983 upto April, 1986. She further allowed Rs.500 per month with effect from 1-5-1986.

The petitioner being aggrieved against the judgment and decree dated 31-5-1988 filed Family Appeal No.34 of 1988 before the District Judge, Karachi Central.

The learned District Judge dismissed the appeal vide judgment dated 26-2-1989. The petitioner raised two points before the learned Judge. First point which was urged was that fixation of maintenance allowance at the rate of Rs.500 was made on the basis of admission of the petitioner's father. The witness admitted in his deposition that the petitioner draws Saudi Riyals which are equivalent to Rs.15,000. This point was rejected as the respondent No.3 could not summon the salary record from Saudi Arabia. The second point was that the fixation of maintenance allowance at the rate of Rs.500 is excessive. This point was also rejected.

The petitioner being aggrieved against the judgment of the Appellate Court has filed the present petition.

I have heard Mr. Jamil Ahmed Advocate for the petitioner and perused the impugned judgments of the respondents 1 and 2. The Family Court on consideration of evidence produced by the parties held that the respondent No.3 is entitled to past maintenance allowance at the rate of Rs.200 per month from July 1983 to April 1986 and at the, rate of Rs.500 per-month from May 1986 till her legal entitlement with ten per cent increase. The petitioner went m appeal before respondent No. 1 which was also dismissed. The learned District Judge confirmed the finding of the learned Family Judge. In so far as the question of maintenance at the rate of Rs.500 per month with effect from May 1986 is concerned, it was found as a question of fact by the learned Family Judge and affirmed by the learned District Judge.

This extraordinary jurisdiction under Article 199 of the Constitution is not meant for correction of mere errors of law or fact committed by the subordinate Courts during the proceedings of a Family suit. For that purpose adequate machinery has already been provided by the relevant law by way of appeal. When the appropriate remedy has already been utilized, the controversy must come to an end. If the law provides no further remedy to the aggrieved party, finality must attach to the judgment deciding the controversy one way or the other, when the law does not provide for a revision, Article 199 could not be involved as a substitute for revisional jurisdiction. In my view, the Courts below correctly determined the maintenance allowance. It is not necessary for this Court to substitute its own finding while exercising powers under Article 199 of the Constitution which are supervisory in nature and this Court cannot convert itself as a Court of Appeal. Therefore, this is not n fit case where this Court can interfere with the judgments of the Courts below.

For the aforesaid reasons, the petition fails and is accordingly dismissed in limine.

M.Y.H./A-614/L

Petition dismissed.