ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitution Petition No.S-167/2018

Date

               Order with signature of Judge

           

                                                                         

                                                Before:

 

                                                Mr. Justice Amjad Ali Sahito.

 

Petitioner:                 Abdul Hameed son of Ghulam Qadir

                                    By caste Soomro, Adult, Muslim, resident of Kandhra City,

                                    Taluka Rohri, District Sukkur.

 

                                    Petitioner in person

 

Respondent:          Mst. Fozia d/o Gul Hassan by caste Soomro

Adult, Muslim, R/o Village Wadi Patni, Taluka Rohri, District Sukkur.

Through: Mr. Mujeeb Rehman Soomro advocate

 

Date of hearing:      17.09.2018

Date of Decision:    17.09.2018.

 

J U D G M E N T

 

 

                                                *****************

 

AMJAD ALI SAHITO,J. Petitioner Abdul Hameed  has challenged the order dated: 15.01.2018 and decree dated: 17.01.2018, passed by learned Additional Sessions Judge-I Sukkur,  whereby appeal of the petitioner against the judgment and decree dated: 16.09.2017 passed by learned Civil/Family Judge-II Rohri was dismissed with directions to the trial court that petitioner/defendant may be allowed to deposit the remaining amount in installments according to his salary.

  

2.         The facts leading to this petition are that the respondent/plaintiff Mst. Fozia filed family suit No. 77/2017, Re. Mst Fozia v Abdul Hameed for her maintenance and maintenance of her children, which was decreed in favour of the Mst. Fozia by the learned Civil/Family Judge-II Rohri in which Rs. 5000/- per month till the period of Iddat including last two years from the filing of suit and Rs. 4000/- for minor child were fixed till minor attained the age of 18 years with the increase of 10% per annum. Thereafter petitioner has challenged the judgment and decree of learned Civil/Family Judge-II Rohri before learned Sessions Judge Sukkur which was transferred to learned Additional Sessions Judge-I Sukkur who have dismissed the said appeal, hence this petition.

 

3.         I have heard petitioner in person, learned counsel for the respondent and have perused the material available on record.

 

4.         Petitioner in person contended that learned trial court as well as first appellate court has passed the impugned order and decree on the assumptions and presumptions, as he has filed his written statement in which he clearly mentioned that one agreement was executed between him and respondent. He also argued that he has given the divorce to the respondent, therefore, he is bound to pay Rs. 2000/- per month to the respondent and Rs. 1000/- per month to her minor child, but such plea was not considered by the learned trial court as well as first appellate court. He also argued that he has also requested to pay the delivery expenses and maintenance at the rate of Rs. 2000/- per month for respondent and Rs. 1000/- per month for minor as per such agreement. He also argued that the he is serving in Education department as PST and also brothers and sisters are also depends upon him, so also two sons and one wife. Therefore, he is unable to pay Rs. 92,000/- according to agreement at once and agreed to pay the amount in monthly installments. He, therefore, prayed that petition may be allowed and judgment and decree of trial court as well as impugned order and decree of first appellate court may be set-aside.

 

5.         Conversely, learned counsel for the respondent argued that impugned order and decree are well-reasoned and speaking and are liable to be maintained. He also argued that on oath, during the trial for the case, the trial court passed the impugned judgment and decree in which Rs. 5000/- was fixed for her maintenance ad Rs. 4000/- per month for her child with increase of 10% per annum. He also argued that the petitioner is government servant and his salary is more than 50,000/-per month and he can easily pay the maintenance. He, therefore prayed that petition may be dismissed.

 

6.         I have considered the arguments of both the sides and perused the record as well as impugned order and decree of learned Additional Sessions Judge-I Sukkur and judgment and decree passed by learned Civil/Family Judge-II Rohri. Perusal of the record reflects that during the course of pre-trial proceedings, the petitioner stated that if the respondent takes special oath on Holy Quran that she did not receive her own maintenance and maintenance of her minor child amount of Rs. 3000/- per month for last two years and delivery expenses amount from him, then he will pay all the maintenance and delivery expenses to the respondent. The respondent administered on Holy Quran and states that she did not receive her own maintenance and maintenance of her child for last two years and also delivery expenses, but after administration of special oath, the petitioner /defendant stated that he will pay maintenance as per agreement, the petitioner has not approached this court with clean hands hence, respondent is entitled for relief claimed by her in her prayer clause, made before the family court.

 

7.         In view of above, I am of the view that learned Civil/Family Judge-II Rohri as well as learned Additional Sessions-Judge-I Sukkur has given correct findings of the facts while passing their judgment/order. Accordingly, impugned order and decree require no interference, therefore, instant petition, being devoid of force is dismissed with no order as to costs.

 

 

                                                                                                            JUDGE     

                                                           

 

Sajjad