SHAH JAHAN and others vs Syed AMJAD ALI, HAWALDAR and others

ORDER

' MAMOON KAZI, J.---This appeal calls into question the judgment of a learned Single Judge in the High Court of Sindh, dated 8-4-1997, allowing the Constitution Petition filed by the respondent No,1 and reducing the amount of maintenance awarded to the appellants.

2. Brief facts of the case are that, the appellant No,1 was divorced by the respondent No,1'. They had seven children born out of the wed-lock out of whom appellants Nos.2 to 6 were minor at the time of divorce. Maintenance was awarded to the said appellants by the Family Court at the rate of Rs,300 per month per child, totaling Rs,1,500 per month. The respondent No,1 filed appeal, but the judgment of the Family Court was maintained by the appellate Court. Thereafter, the respondent No,1 filed a Constitution Petition which was decided by the learned Judge in Chambers and the amount of maintenance was reduced to Rs,200 per month per child.

3. Leave was granted to examine the question, whether the impugned judgment of the learned Judge in the High Court was delivered in consonance with law.

4. We have heard Mr. Umer Farooq Khan, learned counsel for the appellants, but none appeared on behalf of the respondents in spite of notice.

5. Admittedly, the respondent No,1 was working as "hawaldar" in Karachi Port Trust and according to the evidence recorded by the Family Court, he had a total income of Rs,3,000 per month. It also transpired that the respondent No,1 had remarried after divorcing the appellant No,1 and he had four children from his second wife. However, an undertaking had been given by him in writing to the appellant No,1 that, he would pay Rs,500 per month to her as maintenance for her five children and the evidence indicated that the former had abided by the said undertaking. Upon this evidence, the learned Judge in the High Court, finding the rate of Rs,300 per month per child as unreasonable, reduced the same to Rs,200 per month per child.

6. Contention of the learned counsel for the appellants before us has been that the learned Judge in the High Court did not possess jurisdiction to substitute his own judgment for that of the family Court. The order of the family Court has also been supported by the learned counsel on merits.

7. The said contentions appear to carry a lot of force. To assess evidence or to determine the amount of maintenance was the function of the Family Court which has been vested with exclusive jurisdiction to decide such matters. Evidently, neither there appears to be any misreading of evidence nor any material piece of evidence appears to have been overlooked by the Family Court while determining the amount of maintenance awarded to the appellants. It is pertinent to point out that, when the High Court exercises Constitutional Jurisdiction, its powers are not analogous to those of an appellate Court. Therefore, although it can strike down an order passed by a subordinate Court or a Tribunal as without lawful authority and of no legal effect but it cannot substitute its own judgment for that of the subordinate Court or Tribunal. The impugned judgment indicates that the amount of maintenance was reduced to Rs,2,00 per month per child by the learned Judge in the High Court mainly for the reason that the respondent No,1 had also to maintain four children from his second marriage. But the Family Court already appears to have taken notice of the same by allowing the said respondent to retain half of his monthly income.

Therefore, a balance appears to have already been struck by the learned Family Court while allowing maintenance to the appellants at Rs,300 per child. Consequently, 'no infirmity can be found either in the judgment of the Family Court or that of the Appellate Court justifying interference by the learned Judge in the High Court in the exercise of Constitution Jurisdiction.

8. The leave petition, as indicated by the office note, was barred by four days, but keeping in view the circumstances of the case and the short period of delay, the same is condoned.

9. In the result, the appeal is allowed and the judgment of the learned Judge in the High Court is set aside. The parties are left to bear their own costs.