IN THE COURT OF (NAME OF
THE JUDGE),
ADDITIONAL DISTRICT JUDGE, (NAME OF THE CITY).
Mst.Maina etc ( appellants) Versus Noor ( Rspodnent)
Family
Appeal
Noor Versus Maina etc.
Family
Appeal
J U D G
M E N T
Through this single
consolidated judgment, I intend to dispose off above titled two family appeals
which arise out of consolidated Judgment
and decree dated 00.00.000 passed by Learned Judge Family Court, (name of the
City).
2. The
facts necessary for disposal of these
appeals are that the appellant/plaintiff and appellant/defendant entered
into wedlock. Two children namely Muhammad and Fatima were born from their
wedlock. Parties were separated, Fatima
is not in the custody of
appellant/plaintiff and Muhammad is in custody of appellant/defendant. The
appellant/plaintiff Maina filed a suit for dissolution of marriage and her maintenance allowance and another application for getting custody
of minors Muhammad, she also filed a
suit for recovery of maintenance allowance
of minor Fatima being her mother/next friend. After failure of pre-trial reconciliation efforts, the learned
Family court decreed the suit to the
extent of dissolution of marriage u/s 10(4) of Family Court Act, 1964. Out of the
divergent pleadings of the parties, the following issues were framed:-
Issues
1.
Whether plaintiffs are
entitled to recover maintenance allowance
form the defendant, if so, at what rate
and since when? OPP
2.
Whether the suits of the plaintiffs are liable to be
dismissed being false, frivolous and baseless” OPD
3.
Whether the
petitioner/plaintiff No.1 is entitled to the custody of the minor on the ground asserted in the petition? OPA
4.
Relief.
Learned
trial court recorded the evidence of parties
and vide consolidated judgment & decree granted the suit for recovery
of maintenance allowance of Fatima partly @ Rs. 2000/- per month from institution of the till the completion of Iddat period, decreed
the suit for maintenance allowance for minor
Fatima partly @ Rs. 3000/- per
month from the institution of the
suit till her marriage with 10% annual increase whereas the application for custody of minor
Muhammad was dismissed. Through their appeal
Maina etc. have challenged the rate and period of maintenance allowance
and sought to grant maintenance allowance
as per prayer in their suits. Through his appeal, Noor has sought setting
aside past maintenance allowance of Miana and Fatima.
3. Learned counsel for the
appellants/plaintiffs submitted that evidence on record fully corroborate the
case of appellant/plaintiff and while granting their appeal, their suits for
maintenance allowance may be decreed as per prayer therein. That appeal filed
by Noor is time barred which is filed just to counter the appeal filed by the
appellants/plaintiffs.
4. Learned counsel for the
appellant/defendant submitted that the rate of maintenance allowance was fixed keeping inv view financial capacity
of defendant. That the defendant has
been paying maintenance allowance to his
daughter. That Maina is also not
entitled to past maintenance allowance.
That appeal filed by the appellants/defendants is within time. Reliance was placed on 2006 CLD 787 (Lahore)
5. I have heard the arguments and
perused the record.
6. After excluding period of 15 days i.e. the time of obtaining the certified
copies of the impugned judgment & decree, the appeal is time barred by four
days.
7. As
far as period of maintenance allowance is concerned, the Para of
relief in impugned judgment and decree sheet show that the rate fixed for minor
plaintiff was granted from the date of institution of her suit. Learned counsel
for the appellants/defendants have contended that her maintenance allowance
should have been started from the date
of her expulsion along with her mother. I may mention that
Arbitration deed, copy whereof is Mark-C also bears signatures and thumb
impressions of plaintiff Miana and defendant Noor. It reads that with mutual consent of parties
their son Muhammad shall remain in custody of Noor and their daughter Fatima
shall remain with Maina, that parties may bear expenses their daughter with
their consent but Maina shall not claim
maintenance allowance for daughter in any court. No doubt such Arbitration deed
cannot deprive a minor from claiming her future maintenance allowance but it
may be noted that past maintenance allowance may be granted only for solid reasons. It was
enunciated in case titled Syed Hamid Ali Shah
Versus Mst. Razia Sultana KLR 1991 Civil Cases 439 (Lahore) therein
strict criterion for past maintenance allowance. The suit making
demand of maintenance allowance of Maina was filed on 16.11.2013. Evidence on
record in the form Arbitration deed Mark-C shows that plaintiff was able to
suffer to portion of time for which she has claimed past maintenance allowance
without demanding for receiving it and it is evident that she had sufficiency.
In the light of above discussed authority, there is no case for past
maintenance allowance. However, Maina has a fit case for maintenance allowance
since institution of her suit.
8. As
far as period for maintenance allowance of plaintiff Fatima is concerned, no doubt
the suit for dissolution of marriage was decreed u/s 10(4) of the Family
Courts Act, 1964 but evidence on record shows that she was extremely ailing as
she remained in Nikah of defendant till aforesaid date and this ailment caused
separation between the parties. In these
circumstances, she too is entitled to get maintenance allowance from filing her
suit making demands for maintenance allowance.
9. As far as rate of maintenance
allowance is concerned, the Dw admitted
that visiting card Mark-D belongs to the defendant, this visiting card is
printed on both sides. The evidence on record establishes that the defendant is
a man of means. The rate of maintenance allowance granted by
learned trial court is insufficient to meet with prevalent costs of living. On the basis of evidence on record, I
consider it appropriate to fix the rate of maintenance allowance for both the
plaintiffs @ Rs. 5000/- per month per
head.
10. The
application under section 5 of Limitation Act was also moved by the appellant Noor
which just reads that he could not file
the appeal within time due to unavoidable circumstances. There is no explanation of “unavoidable circumstances”. Any sufficient
cause for condonation of delay is not
established. This application is dismissed.
11. In the
light of the what has been dismissed above,
the appeal filed by Noor is dismissed being time barred as well as on merits. The appeal filed by appellants Maina and Fatima is partly granted and impugned judgment &
decree is modified to the extent that
rate of maintenance allowance for both the said appeals shall be Rs. 5,000/-
Per month per head whereas their appeal is dismissed to remaining extent.
Parties are left to bear their own costs. Files of these appeals be consigned
to the record room after their due completion.
Announced
00.00.0000
Judge
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