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| Maintenance og minors. |
⚖️ مختصر قانونی خلاصہ —
2019 MLD 820 (Lahore)
مسئلہ: بچوں کے نان نفقہ کی رقم مقرر کرتے وقت والد کی اصل مالی حیثیت اور تنخواہ کو نظر انداز کیا جا سکتا ہے یا نہیں؟
📌 مختصر کہانی
بیوی نے شوہر کے خلاف اپنے دو نابالغ بچوں کے نان نفقہ کا دعویٰ کیا اور ماہانہ 35,000 روپے کا مطالبہ کیا۔ فیملی کورٹ نے دونوں بچوں کے لیے 5,000، 5,000 روپے ماہانہ نان نفقہ مقرر کیا، جس میں سالانہ 10٪ اضافہ بھی تھا۔
شوہر نے مؤقف اختیار کیا کہ اس کی اصل تنخواہ کم ہے۔ اس نے عدالت میں اپنی
Salary Slip
بھی پیش کی، جس کے مطابق اس کی
Net Pay
صرف 18,252 روپے تھی۔ اس کے علاوہ اس پر بیمار والدہ، دیگر گھر والوں اور معذور بیٹی کی کفالت کی ذمہ داری بھی تھی۔
⚖️ ہائیکورٹ نے قرار دیا
🔹 فیملی کورٹ کی بنیادی ذمہ داری ہے کہ نان نفقہ مقرر کرتے وقت والد کی مالی حیثیت، وسائل اور ادائیگی کی استطاعت کو ضرور مدنظر رکھے۔
🔹 Family Courts Act کی دفعہ 17-A(4)
کے تحت عدالت متعلقہ ادارے سے دستاویزی ثبوت بھی طلب کر سکتی ہے تاکہ والد کی اصل آمدن اور مالی وسائل کا تعین کیا جا سکے۔
🔹 عدالتوں نے شوہر کی پیش کردہ
Salary Slip
کو اپنے فیصلوں میں زیرِ بحث ہی نہیں لایا، حالانکہ اس میں اس کی
Net Pay 18,252
روپے ظاہر ہو رہی تھی۔
🔹 بیوی کی طرف سے شوہر کی ماہانہ آمدن 35,000 روپے بتائی گئی، لیکن اس دعوے کے حق میں کوئی دستاویزی ثبوت پیش نہیں کیا گیا۔
🔹 دستاویزی ثبوت کو محض زبانی دعوے پر ترجیح حاصل ہوتی ہے، خصوصاً جب شوہر کی آمدن کے متعلق
Salary Slip
موجود ہو۔
🔹 عدالت نے یہ بھی قرار دیا کہ کسی اہم شہادت کو زیرِ بحث لائے بغیر فیصلہ دینا درست نہیں۔
💰 نتیجہ
لاہور ہائیکورٹ نے والد کی مالی حیثیت، اس کی ادائیگی کی استطاعت، اس کی دیگر ذمہ داریوں اور بچوں کی ضروریات کو مدنظر رکھتے ہوئے دونوں بچوں کا نان نفقہ:
5,000
روپے فی بچہ ماہانہ → 3,000 روپے فی بچہ ماہانہ
کر دیا، جبکہ 10٪ سالانہ اضافہ برقرار رکھا۔
📝 اہم اصول
بچوں کے نان نفقہ کی رقم والد کی حقیقی مالی استطاعت کے مطابق مقرر ہونی چاہیے، اور اس مقصد کے لیے
Salary Slip
یا دیگر قابلِ اعتماد دستاویزی ثبوت کو نظر انداز نہیں کیا جا سکتا۔
حوالہ: Khalid Mahmood v. Naseem Akhtar and others, 2019 MLD 820 (Lahore).
Must read judgment.
2019 MLD 820
[Lahore]
Before Jawad Hassan, J
KHALID MAHMOOD-Petitioner
Versus
NASEEM AKHTAR and others-Respondents
Writ Petition No.24596 of 2017, heard on 30th January, 2019.
Family Courts Act (XXXV of 1964)-
-S. 5, Sched. & S.17-A(4)-Suit for recovery of maintenance allowance-Quantum of maintenance allowance-Scope-Financial status of father; documentary proof-Scope-Petitioner/father contended that both the courts below had ignored his salary slip tendered in the evidence and decreed maintenance allowance to the tune of Rs. 5000/- each for two minors-Validity-Section 17-A(4) of the Family Courts Act, 1964 stipulated that in order to fix maintenance allowance of the minors, Family Court could summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant-Record revealed that both the Courts below had not discussed any document on the basis of which they determined the financial status of petitioner for fixation of the quantum of maintenance for minors-Section 17-A(4) of the Family Courts Act, 1964, provided that paramount duty of the Family Court was to keep in mind the financial status of the father before fixing quantum of maintenance-Financial status and resources of father (petitioner) and his capacity to pay could only be ascertained through summoning of documentary evidence from the concerned. organization, body or authority where he was employed-Both the Courts below had failed to do so-Record showed that the petitioner had tendered in his documentary evidence the salary slip in the Court, but the same was not reflected in the impugned judgments---Without discussing said material piece of evidence, Family Court had decided the issue of quantum of maintenance which was contrary to the law--No judgment could be passed without discussing the evidence-Both the Courts below had not adverted to the said salary slip of the petitioner wi which showed his net pay as Rs. 18,252/ while the petitioner the petitioner also had to support his ailing mother and other family members as well as his handicapped daughter who was living with him-Verbal assertion of the wife that the monthly income of the husband was Rs. 35,000/- had not been substantiated by any documentary evidence---Documentary evidence would exclude the oral evidence-High Court modified the impugned judgments and decrees passed by the two Courts below, by reducing monthly maintenance allowance from Rs.5000/- to Rs.3,000/- for each minor---Constitutional petition was allowed accordingly. Bu
Asif Rafique v. Mst. Quratullain and 3 others 2016 MLD 425 ref.
Ms. Sadia Malik and Moin Ahmad for Petitioner.
Respondents proceeded against ex parte vide order dated 22.1.2019.
Rai Shahid Saleem Khan, A.A.G. on Court's call.
Date of hearing: 30th January, 2019.
JUDGMENT
JAWAD HASSAN, J.--The Petitioner has challenged the judgments and decrees of the Family Court dated 31.05.2016 and the Appellate Court dated 22.03.2017. Due to non-appearance of the Respondents, they were proceeded against ex parte vide order dated 22.01.2019. Even today none is present on their behalf.
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a a Facts succinctly for the disposal of instant writ petition are that the Respondents filed a suit for recovery of maintenance allowance asserting therein that the Respondent No.1 entered into a marriage contract with the Petitioner in accordance with Muslim Rites on 20.01.2006. Out of the said wedlock, the spouses were blessed with two minors ie. Respondents Nos. 2 and 3, who are in the custody of the Respondent No.1. The relations between the spouses remained cordial in the beginning but subsequently became strained. consequence whereof two months prior to the institution of the suit; the Petitioner expelled the Respondents from his house after causing physical torture to her without any just cause. Subsequently, during her desertion, the Petitioner even did not bother to contact the Respondents and never ever endeavored to reconcile with her and to provide maintenance allowance to the Respondents. Consequently, the Respondents filed a suit for recover for recovery of maintenance allowance at @ Rs.35,000/-, She further claimed dowry articles which are lying with the Petitioner worth Rs.4,50,700/- as per list annexed with the plaint. The said suit was contested by the Petitioner by filing his written statement wherein he took certain preliminary and legal objections and resisted the suit. Out of divergent pleadings of the parties as many as five consolidated issues were framed. After framing of issues both the parties produced their oral as well as documentary evidence. The Respondent No.1 herself appeared as PW-1 and produced Muhammad Arif (PW-2) and Gulzar Hussain as PW-3 in support of her version. While on the other hand, the Petitioner himself appeared as DW-1 and he produced Altaf Ahmad (DW-2) and Ghulam Muhammad (DW-3).
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The learned Judge Family Court after scanning the whole evidence available on record partially decreed the suit vide judgment and decree dated 31.05.2016 entitling the minors to get maintenance allowance @ Rs.5000/- P.M each from the date of institution of the suit and in further at the same rate till statutory entitlement with an increase of 10% per annum and the Respondent No.1 was entitled to get maintenance allowance of Iddat Period of three months Rs.3000/- P.M. The claim of Respondent No.1 qua buffalo and gold ornaments. was turned down. Regarding claim of dowry articles, the Respondent No.1 was held entitled to recover dowry articles from the Petitioner in alternative Rs.1,50,000/- as price thered cover dowry articles from or in 1,50,000/- as price thereof. Feeling aggrieved thereof, the Petitioner preferred appeal before the learned Additional District Judge, Jhang, which was partially allowed to the extent that the suit for restitution of conjugal rights was decreed; whereas rest of the claims of the Petitioner were declined. Hence this petition.
Arguments heard and record perused.
- So far as contention of Petitioner regarding dowry articles is concerned; suffice is here to mention that dowry articles as decreed by learned courts bellow are comprised of such articles of daily use; which parents as per their customs and traditions usually give to their daughters at the time of their marriages. Petitioner had himself acknowledged that some of dowry articles are still in his possession. Both the Courts below have rightly assessed alternate approximate value of said dowry articles as Rs.1,50,000/- after wear and tear.
As far as quantum of of maintenan maintenance allowance of minors/ respondents is concerned; it would be advantageous to reproduce Section 17-A(4) of The Fa Family Courts Act, 1964 as under:
"For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant."
A discreet study of both judgments passed by learned courts below reveals that they have not discussed any document on the basis of which they determined the financial status of of Petitioner Petitioner for for fixation fixation of of the the quantum of maintenance for minor respondents. It was paramount duty of learned Family Court as enshrined above to keep in mind the financial status of the Petitioner/husband before fixing quantum of maintenance. The financial status and resources of father/Petitioner and his capacity to pay could only be ascertained through summoning of documentary evidence from the concerned organization, body or authority where he is employed. Both courts below had miserably failed to do so.
- Careful scanning of record reveals that the Petitioner had tendered in his documentary evidence the salary slip (Mark-D/I) in the Court, but the same is not reflected in the said judgments and without discussing this material piece of evidence the learned Family Court decided the issue of quantum of maintenance in a slipshod manner, the same is contrary to law. It is settled principle of law that no judgment could be passed without discussing the evidence. The learned Additional District Judge has also not considered this aspect of the case and haphazardly coincided with the findings of learned Family Court. Both the Courts below did not advert to the document (Mark-D/I) i.e. salary slip of the Petitioner and misread and non-read this material piece of evidence. The said salary slip shows the net pay of Petitioner as Rs.18,252/-; viz-a-viz the maintenance of minors was fixed Rs.5000/- per month each with 10% increase; ignoring the factum that the Petitioner also had to support his ailing mother and other family members as well as his handicapped daughter who is living with him. There is only verbal assertion of the Respondents that the monthly income of Petitioner is Rs.35,000/- but Respondents had not tendered any documentary evidence in this regard. It is a settled principle of law that documentary evidence excludes oral evidence. In case titled Asif Rafique v. Mst. Quratullain and 3 others reported at 2016 MLD 425, this Court laid ratio as under:
"Family Court while deciding the question of husband's salary had given preference to his oral evidence over documentary evidence i.e. pay slip which would carry presumption of truth. Strong and exceptional evidence was required to rebut the said documentary evidence. Court should rely upon documentary and other circumstantial evidence to find as to which party was speaking truth in proof of a fact when oral words of one party were against the oral words of other party. Net pay drawn by the defendant-husband should be considered for determining his monthly income. Monthly maintenance allowance granted by the Family Court for each child was modified from Rs. 10,000/- to Rs.7,000/- per month with 5% increase per annum from institution of suit till passing of impugned judgment and decree
paramount duty of learned Family Court as enshrined above to keep in mind the financial status of the Petitioner/husband before fixing quantum of maintenance. The financial status and resources of father/Petitioner and his capacity to pay could only be ascertained through summoning of documentary evidence from the concerned organization, body or authority where he is employed. Both courts below had miserably failed to do so.
- Careful scanning of record reveals that the Petitioner had tendered in his documentary evidence the salary slip (Mark-D/I) in the Court, but the same is not reflected d in in the the said said judgments and and without discussing this material piece of evidence the learned Family Court decided the the issue of quantum of maintenance in a slipshod manner; the same is contrary to law. It is settled principle of law that no judgment could be passed without discussing the evidence. The learned Additional District Judge has also not considered this aspect of the case and haphazardly coincided with the findings of learned Family Court. Both the Courts below did not advert to the document (Mark-D/I) i.e. salary slip of the Petitioner and misread and non-read this material piece of evidence. The said salary slip shows the net pay of Petitioner as Rs.18,252/; viz-a-viz the maintenance of minors was fixed Rs.5000/- per month each with 10% increase; ignoring the factum. that the Petitioner also had to support his ailing mother and other family members as well as his handicapped daughter who is living with him. There is only verbal assertion of the Respondents that that the monthly income of Petitioner is Rs.35,000/- but Respondents had not tendered any documentary evidence in this regard. It is a settled principle of law that documentary evidence excludes oral evidence. In case titled Asif Rafique v. Mst. Quratullain and 3 others reported at 2016 MLD 425, this Court laid ratio as under:
"Family Court while deciding the question of husband's salary had given preference to his oral evidence over documentary evidence i.e. pay slip which would carry presumption of truth. Strong and exceptional evidence was required to rebut the said documentary evidence. Court should rely upon documentary and other circumstantial evidence to find as to which party was speaking truth in proof of a fact when oral words of one party were against the oral words of other party. Net pay drawn by the defendant husband should be considered for determining his his monthly income. Monthly maintenance allowance granted by the Family Court for each child was modified from Rs. 10,000/- to Rs.7,000/- per month with 5% increase per annum from institution of suit till passing of impugned judgment and decree. and thereafter Rs. 10,000/- for each child-with 5% increase per annum till they attain the age of 18 years.
- In view of aforesaid observations instant constitutional petition is allowed and impugned judgments and decrees are modified to the extent that keeping in view financial status, paying capacity and liabilities of Petitioner and the needs of minors, the quantum of maintenance of Respondents Nos. 2 and 3 is reduced from Rs.5000/- per month each to Rs.3000/- per month each with 10% annual increase from institution of suit till their legal entitlement. As the suit for restitution of conjugal rights of the Petitioner was already decreed by learned Appellant Court; therefore Respondent No.1 is not entitled for any maintenance allowance till she performs matrimonial obligations. It has been noticed that the Petitioner has paid entire amount in the court pursuant to the order of this Court which is evident from the interim orders. The learned Executing Court while determining and calculating the amount due on petitioner's part shall also adjust the amount already received by the Respondents.
MQ/K-5/L
Petition allowed.