ORDER SHEET.

IN THE ISLAMABAD HIGH COURT, ISLAMABAD.

JUDICIAL DEPARTMENT.

Writ Petition No.1543 of 2023

ABBAS MUSTAFA KASSAM

VERSUS
KIRAN MAZARI and others
S. No. of order/ Date of order/ Order with signature of Judge and that of parties or
proceedings proceedings counsel where necessary.
(1) 09-05-2023. Ms. Jamila Jahanoor Aslam, Advocate for the
Petitioner.
1. Through the instant petition, the Petitioner
[Abbas Mustafa Kassam] seeks setting aside of
the Judgment and Decree dated 17.12.2022
(“Impugned Judgment I”) passed by the learned
Judge Family Court, Islamabad (West) (“Family
Court”) and the Judgment and Decree dated
01.03.2023 (“Impugned Judgment II”) passed
by the learned Additional District Judge (West)
Islamabad (“Appellate Court”) and for
reduction in the maintenance of the minor [Noor
Kasssam] (“Minor”) to Rs.50,000/- per month
plus all educational, medical and travelling
expenses till the minor’s legal entitlement. It is
further prayed that visitation schedule as
prescribed in Mst. Madiha Younus Vs. Imran
Ahmed, 2018 SCMR 1991 be allowed and also
allow the Petitioner right to take the Minor out of
the jurisdiction of the Courts of Pakistan after
furnishing surety to the entire satisfaction of the
Court.
2. The brief facts of the matter are that
Respondent No.1 and the Minor filed a Suit for
Recovery and Fixation of Maintenance before the
learned Family Court. The Suit was decreed vide
the Impugned Judgment I and the
Petitioner/Defendant was directed, inter alia, to
pay Rs.500,000/- per month as maintenance to
the Minor with 15% annual increase with effect
from the date of divorce till her legal entitlement
along with a car not less than 1800 CC with
driver and petrol.
3. Being aggrieved of the Impugned Judgment
I the Petitioner preferred an appeal before the
Appellate Court who vide Impugned Judgment II
partially modified the Impugned Judgment I by,
inter alia, reducing the annual increment of the
Minor’s maintenance allowance to 5% per
annum.
4. Being aggrieved, the Petitioner filed the
instant writ petition.
5. The learned counsel for the Petitioner
submitted that the Impugned Judgments and
Decrees suffer from gross misreading and non-
reading of evidence and as such are not
sustainable. She submitted that the
Respondent/Plaintiffs were unable to prove the
quantum of income earned by the
Petitioner/Defendant and as such failed to
discharge her burden of proof yet the Courts
below have granted an excessive amount as
maintenance of the Minor. She referred to the
Appointment Letter dated 02.01.2023 of the
Petitioner which shows the income of the
Petitioner and submitted that the Impugned
Judgment and Decrees has not referred to the
same at all.
6. I have heard the learned counsel for the
Petitioner and have also perused the available
record.

7. First and foremost, it has to be borne in mind

that this Court in exercise of Constitutional
jurisdiction does not act like a Court of appeal. As
such, the Court cannot embark upon a reappraisal
of evidence. It is settled law that a High Court in
such jurisdiction cannot substitute the concurrent
findings of the courts below with its own findings
solely on the ground that another view was
possible on the same evidence. A party
approaching the High Court under Article 199 of
the Constitution has to demonstrate that there is a
gross misreading or non-reading of evidence or
jurisdictional error or such legal infirmity that has
caused miscarriage of justice.

8. No misreading/non-reading of evidence or
illegality or any other infirmity has been pointed
out by the learned counsel for the Petitioner. The
Appointment Letter dated 02.01.2023 of the
Petitioner referred to by the learned counsel has
not been referred to in the Impugned Judgments
because it was never produced before the learned
Family Court. Indeed it could not be produced as
the Appointment Letter dated 02.01.2023 has
been issued after the passage of the Impugned
Judgment I by the learned Family Court.
9. There is no merit in the contention of the
learned counsel for the Petitioner that it was the
burden of the Respondent No. 1 to prove the
income of the Petitioner as alleged which she
failed to do. I would like to refer to the
judgments rendered by the Lahore High Court in
the cases of Tariq Mehmood versus Mst. Farah
Shaheen, 2010 YLR 349 and Tanveer Salamat
versus Additional Sessions Judge and others,
2019 YLR 1862 , whereby it was held that the
onus to prove financial capability is upon the
husband/ father. A former wife cannot be
expected to have proof of her ex-husband’s
income. On the other hand, the husband is in a
position to establish his financial capability with
evidence. In such circumstances, when the
husband/father does not tender any proof of
income before the learned Family Court, the
learned Family Court has no choice but draw its
own conclusion based on the facts on the record
as was done in this case.
10. In the instant case, the learned Family Court
vide the Impugned Judgment I has taken into
consideration the evidence brought on record by
the Respondent No.1 regarding expenses of
school fee and other allied expenses spent on the
upbringing of the Minor which the Petitioner
could not rebut though cross examination. The
Appellate Court in Impugned Judgment II has
considered the contentions of the Respondent
No.1 in her affidavit-in-evidence regarding the
Petitioner’s income and their lifestyle when they
were living together and specifically noted that
the Petitioner failed to bring on record any
evidence of his income to rebut the contentions of
the Respondent No.1. It has also been noted in
the Impugned Judgment II that the Petitioner
admitted in cross examination that the Family
was living in a five bed room villa in Dubai from
2013 to July, 2017 of which the rent was
approximately AED 300,000/- per annum in
addition to having an abundant domestic staff and
that the Minor was enrolled in the American
School of Dubai. All these factors were
considered by the learned Appellate Court while
upholding the maintenance amount granted by the
learned Family Court for the Minor and no non-
reading or misreading of evidence has been
identified in such regard or any other illegality of
 infirmity in the Impugned Judgments. In fact the
learned Appellate court has generously reduced
the annual increment of such maintenance as
granted by the learned Family Court from 15% to
5%.
11. Insofar as the prayers regarding visitation
schedule and permission to take the Minor abroad
are concerned, the Petitioner has an alternate
adequate remedy available at law and is at liberty
to institute appropriate proceedings before the
Guardian and Wards Court.

12. For what has been discussed above, I am not

convinced that any interference is warranted in
respect of the Impugned Judgments by this Court
in exercise of Constitutional jurisdiction and as
such the instant petition stands dismissed in
limine being devoid of any merits.

(SAMAN RAFAT IMTIAZ)

JUDGE
Junaid