ARBAB MIR MUHAMMAD vs Mst. IRAM ILTIMAS And 4 OTHER

ORDER

TARIQ PARVEZ, J.--- Petitioner is ex-husband of respondent No. l and father of respondents Nos.2 and 3.

2. Suit No.63/FC was filed by respondent No. l for the recovery of past maintenance of minor sons (respondents 2 and 3) and also for fixation of their future maintenance allowance at the rate of Rs.3,000. This suit was filed on 22-12-1984 and decided on 24-6-1986, whereby the learned Judge, Family Court allowed past maintenance allowance at the rate of Rs.2,000 per month (one thousand each son) and the same amount was fixed for the future maintenance. This order was not challenged by either of the parties 'and remained enforced till 18-4-1995 when a fresh application was moved by the respondents against the petitioner for enhancement of maintenance allowance for the two children as Rs.10,000 each, per month. The application was contested, the learned trial Judge recorded statement of respondent No. l as well as the petitioner and vide order, dated 16-7-1998 held that the petitioner is bound to pay Rs.4,000 per month to each minor regularly till they attain the age of majority or complete their education.

3. The order of the Judge, Family Court was assailed in appeal before Additional District Judge-III, Peshawar by the petitioner unsuccessfully.

4. Learned counsel for the petitioner submitted that there is no provision under the Family Court Act, 1964 for institution of a petition for enhancement of future maintenance allowance when the same stands already fixed by Court. He contended that future maintenance allowance was decided by a Court of competent jurisdiction and was accepted by the present respondents as they did not file any appeal, therefore, they are debarred to make fresh application. Learned counsel also referred to the judgment of the learned Appellate Judge and submitted that the same does not contain points for determination nor he has given reasons in support thereof. It was lastly contended that one of the respondents, namely, Arbab Taimoor Khan, is now major and petitioner is not bound/supposed to pay any future maintenance allowance to him.

5. Mr. Jehanzeb Rahim Barrister appeared on behalf of the respondents on pre-admission notice and vehemently opposed the contention, above raised, by the petitioner. He submitted that in the matter of maintenance and its re-fixation the Court is to keep in view the changed circumstances and need of the minor, there is no principle of res judicata and fresh application is maintainable. As to the objection with regard to respondent No.2 who has become major, it was submitted that a father is duty bound under the law to maintain his son though he has attained majority, if circumstances are such that the major has not yet become independent, for example, has not completed his education or having completed the education but is jobless. Learned counsel for the respondents relied on 1984 CLC 1216(d) and 1995 SCM R 1079.

6. After hearing the arguments and having perused the evidence, we tend to agree with the submission made by the learned counsel for the respondents that there is no bar in filing fresh application for the enhancement of future maintenance because the rate that was fixed m the year 1986 is bound to be changed due to rate of inflation and the requirements of children. The two Courts below who had jurisdiction over the matter, considering the evidence recorded by the trial Court have come to a finding of fact and any such finding is not amenable to our writ jurisdiction.

The objection as to the payment of maintenance allowance to respondent No.2 has been left open by the learned Appellate Judge by filing an objection before the executing Court where the petitioner may prove that respondent No.2 has become major and that he is no longer bound to maintain him. It will be again for the executing Court or the Judge, Family Court to determine this question of fact of majority of respondent No.2 and further maintenance.

It, therefore, follows that there being no illegality in the orders of the two Courts below and their orders being within their Jurisdiction and competence and there being no violation of any constitutionally guaranteed right of the petitioner, this writ petition on the subject-matter of maintenance is not maintainable. The same is, therefore, dismissed in limine alongwith Civil Miscellaneous.