IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Family Appeal No.S-01 of 2022
[Parveen Khatoon versus Punhal Khan]
Constitution Petition No. S-153 of 2022
[Punhal Khan versus Parveen Khatoon]
ORDER WITH SIGNATURE OF HON’BLE JUDGE
1. For orders on office objection ‘A’.
2. For hearing of main case.
Mr. Gulsher Junejo, Advocate for the Appellant in Civil Family Appeal No. S-01/2022, and for the Respondent in C.P. No. S-153/2022.
Syed Kashif Hussain Shah, Advocate for the Respondent in Civil Family Appeal No. S-01/2022, and for the Petitioner in C.P. No. S-153/2022..
Adnan Iqbal Chaudhry J.- Learned counsel for the Appellant (Parveen Khatoon) in Family Appeal No.S-01/2022 concedes that the ‘Family Appeal’ before this Court is not maintainable and that the Appellant should have filed a Constitution Petition. He prays that said appeal may be converted to a Constitution Petition. Given settled case-law that a superior Court can convert one proceeding to another subject to all just legal objections, learned counsel for the Respondent (Punhal Khan) has no objection. Therefore, Family Appeal No.S-01/2022 is converted to a Constitution Petition. The office shall register the same accordingly.
2. The underlying facts are that Family Suit No.03/2018 filed by Parveen Khatoon (mother of minors) against Punhal Khan (father of minors) was decreed partially by the Family Judge-I, Shahdadkot, vide judgment/decree dated 09-10-2021, awarding to her maintenance of 4 minors in her custody @ Rs. 5000 per month each for 2 girls, and @ Rs. 4000 per month each for 2 boys, both w.e.f. April 2017 with a 10% increase per annum, with it being clarified that the interim maintenance deposited by Punhal Khan in court would be adjusted in the decree. It was not disputed that there was a 5th minor who was in custody of Punhal Khan and was being maintained by him.
3. Against the above decree passed by the Family Court, Punhal Khan preferred Family Appeal No. 08/2021 before the District Judge, Kamber-Shahdadkot at Kamber. However, on a statement filed by Parveen Khatoon that the appeal be disposed of to enable nekmards of the locality to resolve the dispute, the appeal was withdrawn by Punhal Khan. But the settlement failed. Punhal Khan therefore filed a fresh Family Appeal No. 06/2022 along with an application to condone limitation. Such power is vested in the appellate court under Rule 22 of the West Pakistan Family Court Rules, 1965. Though the specific order condoning the delay has not been placed on the record, however, on the hearing before this Court that aspect of the matter has not been pressed by learned counsel for Parveen Khatoon.
4. In appeal, Punhal Khan prayed for reduction in the monthly maintenance and for setting-aside the award of past maintenance. The learned appellate court modified the decree vide judgment/decree dated 26-04-2022 by reducing the monthly maintenance to Rs. 3000 per month for each of the 4 minors while keeping the other terms intact. Both sides are aggrieved of such judgment/decree passed by the appellate court, and hence these two petitions. The grievance of Parveen Khatoon is with the reduction made in the amount of monthly maintenance. The grievance of Punhal Khan is that he cannot even afford the reduced quantum of monthly maintenance let alone the past maintenance. However, at the hearing of these petitions, counsel for Punhal Khan pressed his petition only against the award of past maintenance.
5. The judgment of the Family Court notes that Parveen Khatoon had not brought any documentary evidence of specific expenses of the minors, and yet the court was inclined to award maintenance at the rate noted in para 2 above. Apparently, such rate was fixed with the view that the admitted salary of Punhal Khan being Rs. 51,000/- per month, he was able to afford an expense of Rs. 18,000/- for 4 minors along with past maintenance from April 2017. The learned appellate court however, was of the view that even with the stated salary, the rate of maintenance fixed by the Family Court was on the higher side keeping in view that Punhal Khan was also maintaining the 5th minor, and that he was also under a monetary debt. Learned counsel for Parveen Khatoon submitted that there was no proof of the alleged monetary debt. However, the fact of the matter remains that Parveen Khatoon had not brought any documentary evidence of specific expenses of the minors, and even with the aforesaid salary, the Family Court had not considered what were the other liabilities or expenses of Punhal Khan. In such circumstances, the rate of monthly maintenance determined by the learned appellate Court is not perverse.
6. As regards the award for past maintenance w.e.f. April 2017, the suit having been filed in January, 2018, it is not the case of Punhal Khan that the claim for past maintenance was time-barred. Nor did his counsel demonstrate from the evidence that he had paid any maintenance for the minors during that period. As regards the maintenance deposited by him in court after the suit, the impugned decree already gives him a credit for that by ordering its deduction from the amount of the final decree.
7. For the foregoing reasons, the impugned judgment/decree dated 26-04-2022 passed in Family Appeal No. 06/2022 does not call for interference. Both petitions are dismissed.