Wednesday, 3 October 2018

PLJ 2018 Peshawar 1



PresentShakeel Ahmad, J.
Mst. TAHIRA and others--Petitioners
versus
MUHAMMAD IRFAN and another--Respondents
W.P. No. 2507-P of 2017, decided on 19.6.2017.
Constitution of Pakistan 1973--
----Art 199--West Pakistan Family Courts Act, 1964, S. 17-A--Suit for Recovery of Dower & Maintenance--Grant of Interim Maintenance by trial Court--Disputed Parentage--Factual Controversy--Validity--Respondent had denied paternity of children in his written statement as well as in reply to application for interim maintenance by contending that they are children of petitioner’s first husband--Since paternity of children has specifically been denied by respondent in his written statement, therefore, question whether children are lawful issues of respondent and are entitled for interim maintenance allowance can only be resolved after recording pro & contra evidence and subject to proof--Even otherwise, disputed question of facts cannot be investigated while exercising constitutional jurisdiction of high Court--It is incumbent upon party seeking constitutional remedy to show that such party had a clear right and that such right is so clear as not to admit a reasonable doubt or controversy--Though respondent had disputed legitimacy of one child on ground that petitioner had contracted second marriage without obtaining divorce from him, but learned trial Court rightly held that there is nothing on record to support his stance--Petition dismissed.          [P. 3] A
Mr. Barkat Ullah Khan, Advocates for Petitioners.
Date of hearing: 19.6.2017.
Judgment
Through this Constitutional petition the petitioners have assailed the impugned order dated 25.04.2017 of the Judge Family Court-IV, Peshawar and seek the following relief:--
“It is, humbly prayed that by accepting the instant writ petition, the impugned order of the learned trial Court dated 25.04.2017 may kindly be modified to the extent that the interim maintenance amount fixed by the learned trial Court for the Petitioner No. 5 may kindly be enhanced upto
Rs. 25,000/- instead of Rs.5000/-. Besides this, the interim maintenance for the Petitioners No. 2 to 4 at rate of Rs.25000/- each may also be allowed till the final disposal of the suit.
Any other relief not specifically prayed so far but deemed fit may also be granted in favor of the petitioners/plaintiffs against the respondent/defendant.”
2.  The facts, in nutshell are that the petitioners have filed a suit for recovery of dower, educational documents of the Petitioner No. 1, recovery of Rs. 12/- lacs, given to the respondent/defendant by the Petitioner/Plaintiff No. 1 as credit, maintenance @ Rs.25000/- for herself and minors. The petitioners submitted an application under Section 17-A of the Family Courts Act, 1964 for granting interim maintenance to the Petitioners No. 2 to 5. The learned trial Court vide order dated 25.04.2017 directed the respondent to pay maintenance allowance to Petitioner No. 5 Zara Fatima at the rate of Rs. 5000/- per month to be paid to the minor petitioner on 14th of each month, failing which right of defense of the Respondent No. 1 shall be struck off to the extent of maintenance allowance for the minor and a decree shall also be passed to that effect, however, the Petitioners No. 2 to 4 were refused interim maintenance, hence this petition before this Court.
3.  Perusal of record reveals that the Respondent No. 1 has denied the paternity of the Petitioners No. 2 to 4 in his written statement as well as in reply to the application for interim maintenance by contending that the Petitioners No. 2 to 4 are the children of petitioner/plaintiff No. 1 from her first husband namely Mirza Muhammad Ayub Baig. Since the paternity of the Petitioners No. 2 to 4 has specifically been denied by the Respondent No. 1 in his written statement, therefore the question whether the Petitioners No. 2 to 4 are lawful issues of the defendant/Respondent No. 1 and are entitled for interim maintenance allowance can only be resolved after recording pro & contra evidence and subject to proof. Even otherwise disputed question of facts cannot be investigated while exercising the constitutional jurisdiction of this Court, it is incumbent upon the party seeking constitutional remedy to show that such party had a clear right and that such right is so clear as not to admit a reasonable doubt or controversy. Though the Respondent No. 1 had also disputed the legitimacy of Petitioner No. 5 on the ground that the Petitioner No. 1 had contracted second marriage with one Mirza Muhammad Ayub Baig without obtaining divorce from him. It was rightly held by the learned trial Court that there is nothing on the record to support this stance of Respondent No. 1. The photo copy of from-B appended with the plaint shows that the minor Petitioner No. 5 namely Zara Fatima is entered as daughter of Muhammad Irfan.
4.  The impugned order is an interim decision. Maintenance has been fixed at the rate of Rs.5000/- for Petitioner No. 5 temporarily which can obviously be modified latter. It is not a final order adversely affecting the Petitioner No. 5. This Court does not want to prejudice proceedings by commenting upon the claim of the petitioners. However, it is held that interim order in the kind cannot be interfered with in a writ petition like this.
5.  In the present, the judgment being provisional shall be revisited by the Court at the time of making final decision.
6.  The above discussion leads to the obvious conclusion that the impugned order does not warrant any interference of this Court, therefore, this writ petition being bereft of merit, is dismissed in limine.
(Z.I.S.)            Petition dismissed


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