Maintenance Allowance of Wife Case Laws 2015 YLR 1433

Maintenance Allowance of Wife Case Laws 2015 YLR 1433, S. 5, Sched.—Azad Jammu and Kashmir interim Constitution Act (VIII of 1974), Ss. 42 & 44—Writ petition—maintenance allowance to wife—Scope—Capacity of husband to pay maintenance as fixed—Non-framing of issue—Effect—Contention of husband was that wife had voluntarily left his house and she was not entitled for maintenance allowance—Suit was decreed concurrently—Validity—Wife was entitled for maintenance if she had obeyed the husband and was ready to live in his house but if she had left the house of husband voluntarily then wife was not entitled for maintenance —Duty of husband to maintain his wife was conditional upon performance of marital obligations—Wife was bound to guard the reputation, property of her husband in his absence and also her own virtue—maintenance allowance should be according to the financial position of husband—Family Court was bound to resolve the question of capacity of husband to pay maintenance —No issue, in the present case, was framed with regard to capacity of husband whether he had a source to pay the maintenance fixed by the Family Court—Non-framing of issues was not vital for a case if parties were vigilant on the point, if however the parties had led the evidence on the said issue then question could be resolved without framing the issue—Both the parties had led the evidence but Family Court had failed to resolve the question with regard to capacity of husband to pay maintenance —Family Court was bound to record findings with regard to capacity of husband whether he was in a position to pay maintenance charges claimed by the wife or not—Supreme Court had powers to decide any issue if there was evidence of the parties on record—Remand of case would further prolong the litigation and there would be undue burden on the parties—Both the courts below had not considered that husband had meager source to maintain his wife—No mis-reading or non-reading of evidence was pointed out—Attitude of husband towards the wife was cruel and he had ousted her from house after beating—Wife and minor children were entitled to maintenance —Husband or father could not be burdened for payment of maintenance beyond his capacity—Husband in the present case, was a Rickshaw driver and due to rising costs of living maintaining a wife and two minors in a meager amount of Rs. 5,000 per month was difficult but wife herself had demanded Rs.5000—Family Court had correctly concluded that wife/children were entitled for maintenance of Rs. 5,000 per month and defendant was in a capacity to pay the said amount—Appeal was dismissed in circumstances.