IN THE HIGH COIURT OF SINDH AT KARACHI
C.P. No.S-316 of 2006.
PRESENT:
MR. JUSTICE NADEEM AZHAR SIDDIQI
Date of Hearing: 08.04.2009.
For the Appellant/ Mr. Abdul Karim Siddiqui, advocate.
Petitioner:
For the Respondent: Nemo
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JUDGMENT
NADEEM AZHAR SIDDIQI, J:- The petitioners are aggrieved by the Judgment dated 23.2.2006 passed by I Additional District Judge, Karachi Central in Family Appeal No.61 of 2003, whereby the same was dismissed.
2. Facts of the case are that Petitioner No.1 married the Respondent No.1 on 19.6.1993 while Rukhsati was performed on 23.7.1995 and out of the wed-lock Petitioners No.2 and 3 were born. It is alleged that the Petitioner No.1 alongwith Petitioner No.2 were turned out by Respondent No.1 in December, 1998. Petitioner No.3 was born on 18.1.1999. Ever since the Petitioner No.1 alongwith her children is living in the house of her parents. Petitioner No.1 filed Family Suit No.390 of 2001 claiming maintenance for herself as well as for Petitioners No.2 and 3. The learned trial Court dismissed the suit to the extent of prayer for grant of maintenance to the Petitioner No.1 but allowed maintenance at the rate of Rs.1500/- per month per child respectively from December, 1998 and January, 1999 till their marriage/attaining the age of majority. Being aggrieved by this judgment, the Petitioners filed Family No.61 of 2003, which was dismissed. Hence, this petition.
3. Learned counsel for the petitioners submitted that the learned trial Court as well as the learned appellate Court erred in allowing maintenance to the Petitioners No.2 and 3 at the rate of Rs.1500/- per month per child as the Respondent No.1 is holding a senior position in a reputable foreign company viz. Siemens Pakistan Engineering Company Limited and is getting a lucrative salary. He also submitted that in another case the respondent No.1, deposing as PW-2 for the plaintiff in that case, has admitted that he was earning Rs.80,000/- per month which fact was not considered by the two Courts below.
4. The suit for maintenance filed by the Petitioner No.1 for self and on behalf of minor Petitioners No.2 and 3 was decreed by the trial Court in the following terms:
“In view of above discussion on issue No.1 I decree the suit of the plaintiff only regarding the prayer clause of maintenance of plaintiffs No.2 & 3 and dismiss regarding the prayer clause of plaintiff No.1 with no order as to costs with direction to the defendant to pay Rs.1500 (fifteen hundred) p.m. for plaintiff No.2 since December, 1998 till her marriage and Rs.1500 (fifteen hundred) p.m. for plaintiff No.3 since January, 1999 till his age of puberty.”
5. The learned Appellate Court, while deciding the quantum of maintenance in respect of the minors held as under:
“The third point agitated by learned counsel for the Appellants is that the rate of maintenance fixed for minors are meager and it is required to be increased. Trial Court granted past maintenance and future maintenance of Rs.1,500/- per month of each child keeping in view the income certificate produced by the respondent. Appellant in her evidence deposed that appellant is earning handsome amount and he is not maintaining children according to his means, burden was on her to prove that the income of respondent is handsome, on the contrary respondent produced income certificate which has not been denied by the Appellant nor it has been challenged seriously. It is settled law [that] rate of maintenance [is] always fixed keeping in view the income of father. Husband proved to be earning monthly income between Rs.9,000/- to Rs.10,000/-. Grant of maintenance of Rs.1,500/- of each child can not be said to be out of proposition of husband’s income. Trial Court while granting maintenance had neither flouted provision of law nor maintenance amount fixed by her was excessive.
I am therefore, of the view that rate of maintenance could not be increased keeping in view the income of the respondent and the position that he is also maintaining his second wife, children, old age mother and divorcee sister.”
6. As regards the deposition of the respondent No.1 in another suit that he was earning Rs.80,000/- has no bearing on this case as the said respondent was referring to the period when he was employed at Kuwait. It is not stated by him that he was earning such amount while he was working in Pakistan for his present employer.
7. The learned counsel has not been able to point out any infirmity or illegality in the judgments of the two Courts below calling for interference by this Court in its Constitutional jurisdiction.
8. In view of the above, I dismiss this petition but modify the decree of the two Courts below to the extent that the petitioners No.2 and 3 would be entitled to maintenance at the rate of Rs.1,500/- per month each from their respective dates of entitlement as mentioned therein till December, 2008 and, thereafter, at the rate of Rs.2000 per month each with 10 per cent increase after every two years as future maintenance for the period mentioned in the judgment of the trial Court.
Judge
Karachi, the ____ April, 2009.