Order Sheet

Order Sheet.

HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.

C.P.NO.S-148 OF 2010.

Mst. Muneeran. . . . . . . . . . . . . . . .Versus. . . . . . . . .Muhammad Sheeraz.

Date Order with signature of Judge

Date of hearing: 24.05.2010.

Date of Order: 04.06.2010.

FOR KATCHA PESHI.

Mr. Wali Muhammad Khoso, Advocate for the petitioner.

Mr. Salahuddin Qureshi, Advocate for the respondent No.1.

. . . .

O R D E R.

AQEEL AHMED ABBASI, J-. Through instant petition, the petitioner has impugned the judgment dated 04.1.2010 and decree dated 11.1.2010, passed by the Vth Additional District Judge Hyderabad in Family Appeal No.51 of 2009, whereby the judgment and decree dated 31.8.2009 passed by the learned trial Court was modified and the amount determined by the learned trial Court towards maintenance to the petitioner and her minor child has been reduced.

2. Learned counsel for the petitioner submitted that the learned Family/Trial Court after examining the evidence and keeping in view the financial status of the respondent and the prevailing financial conditions fixed Rs.1500/- per month as maintenance of the minor child since birth till date of decree as past maintenance and future maintenance at Rs.2000/- per month from the date of judgment and decree with 10% enhancement per annum till he attains the age of majority, whereas maintenance of the petitioner for the "Iddat" period was determined as Rs.2000/- per month. Per learned counsel the discretion for fixation of amount of the maintenance keeping in view the facts and circumstances of the case and the financial status of the respondent was properly exercised and did not require any interference by the learned Appellate Court, who has reduced the amount so determined without any legal or factual justification in a summary manner. In support of his arguments learned counsel for the petitioner has placed reliance on the cases of (1) MUHAMMAD SULEMAN v. ZUBAIDA BIBI (1996 S C M R 1965), (2) M. SALEEM AHMED SIDDIQUI v. SABIRA BEGUM (2001 Y L R 2329 (Karachi), (3) MAQSOOD AHMED SOHAIL v. ABIDA HANIF (1992 M L D 219 (Lahore), (4) GULZAR v. ADDL. DIST. JUDGE (N L R 1992 Civil 495) and (5) MUHAMMAD ASLAM v. MUHAMMAD USMAN (2004 C L C 473 (Lahore).

3. Conversely, the learned counsel for the respondent has vehemently opposed the maintainability of the instant petition on the ground that the impugned order does not suffer from any jurisdictional error, nor any illegality has been committed by the learned Appellate Court whereby the judgment and decree passed by the trial Court has been maintained and only amount determined as maintenance to the minor child and the petitioner has been reasonably modified. It is contended by the learned counsel for the respondent that the learned Family Judge did not consider the contention of the respondent regarding his financial status, inspite of the fact that the respondent, being a youngman, was serving as male nurse in a private hospital on a very meager salary. Learned counsel further contended that perhaps the learned trial Family Judge was mislead by the false assertion of the petitioner stating that the respondent is earning about Rs.25,000/- per month, whereas in fact neither the respondent was earning such huge amount nor any evidence in this regard was adduced by the petitioner before the learned trial Court. Learned counsel for the respondent submitted that keeping in view the age of the respondent, the educational status and the only source of income through salary as a male nurse in a private hospital, the learned Appellate Court was justified to modify the amount of maintenance. In support of his contention learned counsel for the respondent has placed reliance on the case of MUHAMMAD ASLAM v. MUHAMMAD USMAN (2004 C L C 473 (Lahore).

4. I have heard both the learned counsel and perused the record. During the course of the proceedings on 26.4.2010 both the counsel undertook to substantiate their respective claim with regard to financial status of the respondent namely M. Sheeraz by submitting particulars relating to the present salary/income of the respondent. Pursuant to such undertaking respondent No.1 has submitted an affidavit alongwith salary certificate issued by Medical Superintendent of District Red Crescent Branch Hyderabad showing total salary of the respondent No.1 as Rs.5400/- per month, whereas petitioner did not file any affidavit or any supporting material to substantiate her claim that respondent No.1 is earning Rs.25,000/- per month as stated before the learned Family Judge nor any counter affidavit has been filed in response to the affidavit filed by the respondent No.1. There is no cavil to the preposition that in cases of Guardian and Ward the welfare of the minor child is considered to be the prime consideration, however, while determining the amount of maintenance the financial status and the ability to pay of the father can not be ignored.

5. In view of hereinabove facts it appears that the petitioner has not been able to point out any illegality in the impugned order whereby the learned Appellate Court. while exercising discretion vested in it for determining the amount of maintenance keeping in view the facts and circumstances of the case and the financial status of the respondent, has exercised such discretion as per law. Moreover, the petitioner has not been able to substantiate her claim through evidence inspite of opportunity having been granted by this Court. I am of the view that the discretion vested in the competent Court of jurisdiction cannot be interfered in constitutional jurisdiction unless some jurisdictional defect, malafide and abuse of the discretion vested in such Court/Authority is neither manifest on the face of record or has been established through evidence.

6. In view of hereinabove, I am of the opinion that the petitioner has failed to make out a case requiring any interference by this Court in its constitutional jurisdiction. Accordingly, the instant petition having no merits, is dismissed in limine.

JUDGE