While accepting plea of a woman over family court refusal to exercise powers for issuing summon in maintenance suit against estranged husband on Saturday Lahore High Court (LHC) turned down the impugned order terming it illegal.
Shehla Tahir has invoked jurisdiction of the LHC assailing family court order that dismissed her application for permission to summon the principal and accountant of a famous private school with the original service record of her husband.
The plaintiff, mother of a minor son, had filed suit to recover maintenance saying she had married the respondent but his conduct was cruel towards her. She claimed that her husband expelled her from the house along with her minor son and that the respondent failed to pay the maintenance to them.
She urged the family court to recover a maintenance allowance of Rs15,000 per month each with 10 per cent annual increase from the respondent. The family court had dismissed woman’s application to summon husband’s employer to verify income.
The family court issued notice to her estranged husband whose lawyer denied allegations saying his client monthly income was Rs17,976, adding he had old parents and many other expenses to meet. The respondent said he shall not be in a position to pay huge maintenance allowance to the plaintiff and her son. However, it was not disputed that the respondent was a full-time employee at the school.
The petitioner’s counsel in the LHC contended that the petitioner filed an application before the family judge with a prayer to summon the principal and the responsible officer of the school along with documents to verify the actual salary of the respondent. She claimed that her estranged husband income from the salary and business was to the tune of Rs80,000 per month.
The petitioner further said that the family court, however, dismissed the application observing that there was no provision in the Family Courts Act, 1964 to summon a person whose name was not included in the list of witnesses of the parties especially when such a person had not tendered the document before the court.
Allowing the appeal of the woman, Justice Rasaal Hassan Syed observed saying din maintenance suits question regarding fixation of quantum of the maintenance allowance characteristically depends on known sources of income and other sources of the income of the husband/father.
The judge noted that in the instant case the respondent admittedly is an employee of a school and claims to be in its service for a number of years. Expressing dismay, the justice said strangely enough the respondent did not produce any record keeper, accountant or responsible officer of the school to confirm the amount he was earning as salary.
Justice Rasaal Hassan Syed observed the petitioner herself applied to the court to summon the concerned officials along with the record for the assistance of the court to reach correct and fair determination of the issue and it could not have been declined on erroneous assumption and misinterpretation of law.
He said the family court illegally refused to exercise jurisdiction and that too for extraneous reasons not admissible in law.
“The impugned order, as such, is legally untenable and is, accordingly, declared to be so,” the justice said while allowing plea of Shehla Tahir in the matter. After this verdict, application of the petitioner has been granted permission to summon the accountant and principal of the school with service record of the respondent.
