Writ petition U/A 199 of the constitution in a family matter
Purpose: to invoke the constitutional jurisdiction against the impugned judgments
and decrees passed by the trial court as well as appellate court respectively.
IN THE HON’BLE LAHORE HIGH COURT RAWALPINDI BENCH RAWALPINDI
W.P No.__________/2022
(Name,
parentage, and address of the petitioner) ….
Petitioner
Versus
1.
(Name, parentage, and address of the private
respondent/s)
2.
(Name of minor /if any)
3.
Additional District Judge (Appellate Court)
4. Judge Family Court (Trial Court) …. Respondents
WRIT PETITION U/A 199 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN 1973
Respectfully Sheweth:-
That respondent No. 2 is a minor who is impleaded in the instant writ
petition through her real mother i.e. respondent No. 1.
That brief facts for the disposal of the instant writ petition are that respondent
No. 1 filed a suit for recovery of past and future maintenance of Rs.200,000/-
for respondent No. 1 @ Rs.3,000/- per month since and Rs.120,000/- @ Rs.5000/-
per month for minor /respondent No. 2 since 24.02.2016 since 24.02.2016 with 20% annual increase and
recovery of dower in the shape of House measuring 11 Marlas or its alternate
amount of Rs.20,00,000/- against the petitioner with the averments that the
marriage between the spouses was solemnized on 09.06.2014 and the respondent
No. 1 started performing matrimonial obligations. At the time of marriage, the dower
was fixed as Rs.5000/- and 11 marlas constructed house. Through Rs.5000 were
paid but the constructed house is outstanding. After marriage, the attitude of
respondent No. 1 was cordial but later on, it changed. Out of wedlock,
respondent No. 2 was born on 01.08.2016, and is alive and in the custody of
respondent No. 1. The petitioner expelled respondent No. 1 from his house when
she was pregnant. The minor /respondent No. 2 Anabia Mehak was born during the
period of desertion of respondent No. 1 and all the delivery expenses were
borne by the parents of respondent No.1 along with the minor rehabilitated with
the petitioner through Jirga. On 24.02.2016, the petitioner again expelled respondent
No. 1 along with a minor in three wearing apparel and since then, the
petitioner neither contacted them nor paid any maintenance allowance. The respondent
is a man of means being an employee in Survey Company in Iraq and earns
millions. He was asked times and against to pay maintenance allowance and dower
but he refused.
Thereafter, the petitioner contested the suit by filing a written
statement, while raising various legal and factual objections and out of
divergent pleadings of the parties, the learned family court framed the
following: -
ISSUES
I.
Whether the plaintiffs are entitled to recover maintenance allowance from
the defendant, if so, at what rate and for what period? OPP
II.
Whether the plaintiff is entitled to get dower as land measuring 11-
marlas constructed house as per stipulation of Nikahnama or alternative its
price as Rs.20,00,000/-? OPP
III.
Whether the defendant is entitled to a decree of restitution of conjugal
rights against the plaintiff No. 1? OPD
IV.
Relief.
That the case was fixed for the evidence, whereupon both the parties
recorded their respective evidence before the learned family court in order to
prove their stances.
That after hearing the arguments and recording of evidence of both the
parties, the learned family court partially decreed the suit of respondent No.
1 to the effect that the monthly maintenance of respondent/plaintiff No. 1 is
fixed as Rs.20,000/- per month since 27.09.2018 till to the date of judgment
and decree. In the future, she is entitled to recover the said maintenance with
10% annual increase subject to the performance of her matrimonial obligations
and settlement with the defendant /petitioner because the marriage of parties exists
and monthly maintenance of respondent/ plaintiff No. 2 is fixed as Rs.10,000/-
since 27.09.2018 with 10% annual increase from January 2022 till her legal
entitlement and held that the interim maintenance allowance of minor paid by
the petitioner /defendant during the pendency of the suit will be adjusted. The
respondent/ plaintiff No. 1 is also entitled to recover 11 marlas constructed
house or its alternative value which will be determined by the learned
executing court. The petitioner /defendant was also held entitled to a decree
for restitution of conjugal rights subject to payment of previous maintenance
allowance, vide judgment and decree dated 18.01.2021.
That being aggrieved by the impugned judgment and decree dated 18.01.2021,
the petitioner filed an appeal before the learned Additional District Judge,
whereas, respondent No. 1 & 2 also filed appeal against the same judgment
and decree and subsequently both appeals were decided by the learned appellate
court/ respondent No. 3 vide consolidated judgment and decree dated 24.01.2022,
whereby the learned appellate court/ respondent No.3 modified the judgment and
decree dated 18.01.2021 while setting aside the decree for restitution of
conjugal rights of petitioner and held that Haq Mehr is still outstanding so
and respondent No. 1 is entitled to receive maintenance allowance of
Rs.20,000/- per month since 27.09.2018 onward till transfer of house of Haq
Mehr as per column No. 16 of Nikahnama (Exh.P2), she would be entitled to
receive this maintenance allowance only on performance of her matrimonial
obligations, hence this writ petition U/A 199 A of the Constitution of Islamic
Republic of Pakistan 1973, inter alia on the following:-
G R O U N D S
That the impugned judgments and decrees passed by the
learned both the courts below are against the law and facts of the case.
That the learned courts below while deciding the
issue No. 1 & 2 also committed illegalities which is evident from the
judgments and decrees that the maintenance allowance awarded to the respondents
No. 1 & 2is excessive and beyond the
means and resources of the petitioner, hence the findings of both the learned
courts below are based upon imaginations and presumptions, which is not
supported by any evidence.
That there is a misreading and nonreading of evidence
while deciding issue No. 3 by the appellant court, whereby the learned
appellate court held that as Haq Mehr is still outstanding so and respondent
No. 1 is entitled to receive a maintenance allowance of Rs.20,000/- per month
since 27.09.2018 onward till the transfer of house of Haq Mehr as per column
No. 16 of Nikahnama (Exh.P2), hence the impugned judgment and decree is liable
to be set aside in this regard also.
That the impugned consolidated judgments and decrees
passed by the learned courts below are against the law and facts of the case.
That the impugned consolidated judgments and decrees
are the result of non-readying and misreading of the material available on the
file.
That the finding of learned trial courts is against
facts as well as the result of slipshod and hasty manner. That the learned
trial court did not consider the material documents available in the file and
passed the judgments and decrees on the basis of surmises and conjectures.
That the impugned consolidated judgment and decrees
are otherwise erroneous and not sustainable in the eye of law. The learned
courts below have not exercised the jurisdiction so vested to it.
That the valuable rights of the petitioner is
involved and if the impugned judgments and decrees are not set aside, the
petitioner shall suffer an irreparable loss.
That the petitioner has no other efficacious remedy
except to invoke the constitutional jurisdiction of this Hon’ble court.
PRAYER
In view of the above circumstances, it is, most
respectfully prayed that while issuing the writ, impugned consolidated judgment and decree dated 24.01.2022
passed by the learned appellate court and judgment and decree dated 18.01.2021
passed by learned Judge Family/Trial Court, may kindly be set aside and suit of
respondents No. 1 & 2 may kindly be dismissed, to meet the ends of justice.
Any other relief which this Hon’ble court deems just
and proper may also be awarded.
Petitioner Through counsel
Dated: _________
Certificate: -
Certified as per instructions
furnished by the petitioner this is the first writ petition on the subject ever
moved before this Hon’ble Court.
No
other petition, revision, or application on the subject is pending in any court
of law up till the Supreme Court of Pakistan.
…Counsel
Note:
To attach an affidavit in support
of the writ petition.
To attach grounds of appeal
with judgment and decree of the appellate court.
To attach grounds of the family
suit, written statement, and judgment & decree of family/trial court.
To attach oral as well as documentary
evidence.
In case of non-attested documents
are being attached, then the exemption petition must be coupled.
Application for suspension, if
necessary, may be attached.
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