NADEEM AHMED Versus V-ADDITIONAL DISTRICT JUDGE
RAHSEED AHMED SOOMRO, J.--- This petition is directed against the concurrent findings of learned respondents Nos. 1 and 2 given in their respective judgments dated 11-09-2014 and 22-10-2013 in F.S. No. 704/10 and F.A. No. 71/13 respectively.
2. Briefly the facts giving rise to this petition are that the respondent No. 3, who is maternal cousin of petitioner was married to him on 14-03-2006 against a dower of Rs.11,000/-. It is stated that out of this wedlock one baby was born, died after 3 days of birth. After marriage disputes started between the spouses. The respondent No. 3 leveled many allegations against the petitioner including non-maintaining her. It is stated that petitioner did nothing to run family affairs and that her father arranged job for him at Dubai and had also provided him a Motorcycle but he left the job and never maintained respondent No. 3. It is further stated that in the month of June 2009, the petitioner turned the respondent No. 3 out of his house after snatching all her ornaments and other valuables so she had serious hatred developed against the petitioner and ultimately she filed suit and got the decree of khula. The respondent No. 3 also prayed for decree for recovery of maintenance and dowry articles. According to respondent No. 3, petitioner is working as private Electric Contractor and his monthly income is Rs. 30 to 35 thousand per month, therefore, she demanded maintenance @ Rs.10,000/- p.m. w.e.f. June 2009 and return of her all dowry articles in the alternate an amount of Rs.6,90,000/- towards costs of dowry articles.
3. The petitioner in his written statement has denied the allegations of respondent No. 3 and prayed for dismissal of suit, with prayer directing the respondent No. 3 to rejoin him as his legally wedded wife and to perform her matrimonial obligations. According to petitioner, the dispute arose on the demand of arranging separate accommodation for respondent No. 3 but on refusal; she started abusing the petitioner by using filthy language otherwise he had love and affection, with respondent No. 3. It is stated that the respondent No. 3 at the instigation of her parents had herself left the house of petitioner with her brothers and she had also taken away, with her not only her dowry articles, gold ornaments and other belongings but also took away gold ornaments of petitioner's side worth Rs.4,70,500/-, cash Rs.18,000/-, Mobile Phone, worth Rs,5,000/- and motorcycle worth Rs.45,000/- and the respondent No. 3 is liable to pay Rs.5,38,000/-. According to petitioner, he is serving as Electrician in a Garment Factory, wherefrom he is earning Rs.9000/- p.m. Further respondent No. 3 is not performing marital obligations; therefore, she is not entitled for any maintenance as she claimed. The petitioner further stated in written statement that few common and ordinary articles were given by the parents to the respondent No. 3 at the time of rukhsati and most of them were either used and rest were taken away by her, while she left the house of petitioner. The petitioner denied the list of dowry articles and prayed for dismissal of suit, being without any cause of action.
4. The learned trial Court framed as far as two issues, viz.
(1) Recovery of maintenance and
(2) Recovery of dowry articles.
5. After recording evidence of parties, the learned respondent No.2 fixed the maintenance @ Rs.4000/- p.m. w.e.f. June 2009 till Iddat period as the marriage was already dissolved by way of khula vide order dated 08-10-2010, whereas some of the dowry articles were ordered to be return to respondent No. 3.
6. The petitioner has challenged the impugned judgment of learned trial Court and the learned appellate Court dismissed the appeal by maintaining the findings of learned trial Court, hence the petitioner preferred this petition.
7. Heard learned counsel for the parties and have perused the entire material placed before me. It is argued by learned petitioner's counsel that the impugned orders are contrary to law and arbitrary in nature further the case laws cited in orders were also distinguishable to the facts of the case. According to learned counsel, the respondent No. 3 has leveled false allegations against petitioner though she herself chosen to live away from him, therefore, she is not entitled for any maintenance. He next submitted that the petitioner produced managed receipts after granting khula and failed to examine the authors of those receipts. According to learned counsel, the Courts below have failed to consider that the respondent No.3 has taken away petitioner's valuables worth Rs.5,38,500/- thus he prayed for setting aside the impugned judgments. He has relied on PLD 2006 SC 602 and 2008 SCMR 402.
8. The learned counsel for the respondent No. 3 has argued that the petition is not maintainable against concurrent findings of two Courts below. According to him, the petitioner has failed to point out any illegality or irregularity in the impugned judgments and has tried to misguide this Hon'ble Court just to avoid payment of decretal amount. He supported the findings of learned lower Courts and prayed for dismissal of petition. He has relied on case law; 2009 CLC 364, 2012 MLD 756 and 2008 SCMR 1584.
9. I have considered the arguments advanced by both the learned counsel for the parties and have also gone through the impugned judgments as well as evidence on record and the case law relied on by learned counsel for parties. In my humble view, initially the burden of proof lies upon the respondent No. 3/plaintiff, who produced cogent evidence on record and the learned trial Court after applying her judicial mind, has passed the impugned judgment by granting maintenance and recovery of dowry articles. The petitioner has failed to shake the evidence of respondent No. 3 that she left the house of petitioner of her own. For the sake of arguments, if statement of petitioner is accepted as true, the question arises as to why he did not make efforts to bring back respondent No. 3 till khula was granted to her on 08-10-2010. Being ex-husband, the petitioner is legally bound to provide maintenance to respondent No. 3 till her Iddat period.
10. Now only the question of rate of maintenance is to be seen if it is rightly decreed. It has been observed in series of authorities reported in 1999 CLC 305, 2000 CLC 558 and KLR 1985 Civil Cases 482 Lahore that the quantum of maintenance should have been decided considering the income of husband. The respondent No. 3 has prayed for Rs.10,000/- p.m. as her maintenance but the learned trial Court after recording evidence has granted Rs.4000/- p.m. towards maintenance. Record shows that the petitioner has admitted his monthly income to be Rs.9000/- p.m. however, according to petitioner, he is living in a rented house and has to support his old age sick mother as well as brother and sister, therefore, rate of maintenance looks beyond petitioner's reach. The respondent No. 3 has failed to bring on record any such evidence, which shows that the petitioner is earning Rs. Thirty to Thirty Five Thousand per month, therefore, following the case law cited above I reached to the conclusion that the rate of maintenance is to be reduced, therefore, I hereby modify findings on issue No. 1 and reduce the monthly maintenance from Rs.4000/- to Rs.3,000/- p.m.
11. As far as issue No. 2, the learned Courts below have rightly concluded by accepting only genuine receipts/cash memos produced by respondent No. 3 and have fully discussed the evidence on record, therefore, such findings do not call for any interference and I hereby maintain the same accordingly.
12. With the above observations and modifications, this petition stands disposed of.
ZC/N-1/Sindh Petition dismissed.