ARSHAD MEHMOOD vs ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 5

ORDER

' MUHAMMAD BASHIR JEHANGIRI, J.---The above petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the judgment, dated 15-2-2000 passed by the learned Lahore High Court, Rawalpindi Bench, whereby Writ Petition No,266Q of 1993 filed by the petitioner was dismissed.

2. The petitioner married Mst. Tanzeem Akhtar. The marriage was apparently not successful because according to the petitioner, his wife deserted him to live with her father. It appears that the petitioner had also half-heartedly attempted to get the custody of his children through a learned Guardian Court but then abandoned his efforts. On 15-2-1998 Tazeem Akhtar filed a suit before respondent No,2 claiming maintenance for her four children with effect from 28-5-1997. She had also filed a similar suit for herself and recovery of dower amounting to Rs,50,000. Arshad Mehmood petitioner in turn filed a suit against Mst. Tazeem Akhtar for restitution of conjugal rights. All the three suits were consolidated. The learned trial Judge dismissed the suit of Mst. Tazeem Akhtar to the extent of her maintenance allowance, but decreed her claim for recovery of dower amounting to Rs,50,000. Her suit for recovery of maintenance allowance for her children was also decreed and the maintenance allowance per child per mensem was fixed at Rs,1,500. The suit for restitution of conjugal rights filed by the petitioner was, however, decreed. Both the parties preferred appeals but all the appeals were dismissed except that the maintenance allowance for the children was reduced from 1,500 to Rs,1,000 per mensem per child.

3. Feeling still dissatisfied, the petitioner challenged the decision of the learned Judge Family Court and that of the learned Additional District Judge in Writ Petition No,2660 of 1993 which had given rise to the titled C.P.L.A. The only ground agitated by the petitioner in the writ petition was that the maintenance allowance fixed by the lower Court and reduced by the learned Appellate Court was not supported by any evidence produced by Mst. Tazeem Akhtar in the trial Court. The learned Judge in Chambers of the High Court, seized of the writ petition, observed that the trial Court had come to a definite conclusion that a sum of Rs,1,500 was sufficient to meet the expenses of the minor but that amount has since been reduced to Rs,1,000 by the Appellate Court. The stance of the petitioner that he was employed in a Tailor Shop and earning Rs,100 per day was found negatived by the stance taken by him in his application for custody of his children wherein he has himself admitted that he was running a Tailoring Shop and was "earning a handsome amount". The learned Single Judge in the High Court has rightly noticed that the conduct of the petitioner was not reconcilable on the above score. It was further noted by the learned High Court that the petitioner was not willing to pay even a single penny to the minors to meet their expenses and thus this conflicting and contradictory stance on the part of the petitioner was enough to non-suit him.

In this background the impugned order of Maintenance allowance fixed by the Court on appeal was upheld.

4. Mr. Muhammad Aslam Uns, learned Advocate Supreme Court, appearing for the petition before us has reiterated the contentions which were raised before the High Court in its writ jurisdiction.

5. We have ourselves gone through the evidence of the parties and reached the conclusion that the finding of the two Courts below, that the petitioner was liable to pay maintenance of her children and that Rs,1,000 per mensem was the proper maintenance allowance per child was one of fact which was within the exclusive jurisdiction of the learned Judge Family Court and the learned Additional District Judge. Therefore, the petitioner could have challenged the finding successfully in the limited Constitutional jurisdiction of the High Court only if he had succeeded in proving that the finding of the two learned Courts below was not based on any evidence or was based on a total misreading of evidence. The learned counsel did not even attempt to show us how it could be contended that the finding against the petitioner was not based on any evidence or was based on a misreading of evidence.

6. The writ petition was dismissed by the High Court and rightly dismissed on the ground that the petitioner had no case. The petition is accordingly dismissed.