PLJ 2016 Peshawar 69 (DB)
Maintenance allowance--
----Scope--Maintenance allowance of wife as well as her two daughters it is bounden duty of husband and father for maintenance of her wife and children [P. 72] A
Maintenance allowance--
----Scope--Wife left house with her own will and was not ousted--Irresponsible behavior--So, when wife is abused, misbehavior and disrespected it is also a cruelty and on basis thereof she may refuse to live with her husband and so she is entitled to maintenance allowance. [P. 72] B
Restitution of conjugal rights--
----Scope of--Wife had not prayed for dissolution of marriage hence there seems some light at end of tunnel and ray of hope for re-union of spouses and children. [P. 72] C
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Suit for recovery of dower and maintenance--Compromise decree--Validity--Appellate Court after proper appreciation of evidence and circumstances of case had rightly granted a decree for restitution of conjugal rights subject to payment of outstanding dower and maintenance allowance and upon refusal of wife for re-union had dis-entitled wife for future maintenance hence judgment and decree passed by appellate Court was well reasoned so no exception could be taken against it. [P. 72] D
Mr. Shahid Khan Bangesh, Advocate for Petitioner.
Haji Gul Diaz Khan Wazir, Advocate for Respondents.
Date of hearing: 26.3.2015.
PLJ 2016 Peshawar 69 (DB)[Bannu Bench Bannu]Present: Ikramullah Khan and Muhammad Younis Thaheem, JJ.Syed NOBAHAR SHAH--PetitionerversusMst. SALMA BIBI and 4 others--RespondentsW.P. No. 410-B of 2013, decided on 26.3.2015.
Judgment
Muhammad Younis Thaheem, J.--Syed Nobahar Shah the petitioner through instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 assailed the judgment and decree dated 18.9.2013 of learned District Judge, Bannu whereby appeal of petitioner against the judgment and decree dated 28.2.2013 passed by learned Civil Judge-VIII/Judge Family Court, Bannu was dismissed.
2. Brief facts of the case are that Respondent No. 1 filed a family suit in the Court of learned Civil Judge-VIII/Judge Family Court, Bannu for the recovery of dower and maintenance for herself and for Respondents No. 2 and 3. She averred in her plaint that her marriage was solemnized with petitioner in the year 2003 by fixing dower 50 Tolas gold ornaments and Rukhsati took place. From the outset behavior of the petitioner was harsh and cruel due to which she was ousted and she came in the house of her parents. Initially Suit No. 49/FC was filed for restitution of conjugal rights by the petitioner which was compromised at appellate stage wherein petitioner admitted 50 tolas gold ornaments as her dower and paid 11 tolas gold ornaments during execution of the said compromise decree and thereafter she (Respondent No. 1) again came to matrimonial conjugation. She gave birth to two daughters namely Mst. Salwa and Mst. Menha, thereafter behavior of petitioner again become cruel and selfish. A year before filing of suit she was beaten and ousted from his house by the petitioner due to which she settled in the house of her parents. She again filed a family suit for recovery of 39 tolas gold ornaments in lieu of dower and maintenance allowance at the rate of Rs. 4000/- per month for herself and Rs. 3000/- per month for her two daughters for a period of one year past and for future.
3. Petitioner was summoned who appeared and contested the suit by submitting written statement. On divergent pleadings of the parties as many as seven issues were framed apart from relief. Parties adduced pro and contra evidence in support of their respective stances and on conclusion of trial the learned Judge Family Court, Bannu vide order dated 28.02.2013 decreed the suit in the following manner:
Decree of 39 tolas of gold ornaments as prompt dower.
Decree of past maintenance of plaintiff No. 1 for last 01 year @ Rs. 2000/- per month along with future maintenance from the date of institution of the suit till she remains in the nikah of defendant (a) Rs. 2300/- per month.
However, if defendant pay the dower and outstanding maintenance and file an execution for restitution of conjugal rights and thereafter plaintiff refused to abad with him then from the very date she will not be entitled for the future maintenance.
Decree of past maintenance for plaintiffs No. 2 and 3 for last one year @ Rs. 1500/- each per month along with future maintenance from the date of institution of the suit till the minor daughters got married (a), Rs. 2000/- each per month with 5% increase per annum.
Decree for restitution of conjugal rights is passed in favour of defendant subject to payment of outstanding dower and maintenance.
4. The petitioner being aggrieved from the judgment and decree of the learned trial Court filed an appeal before the Court of learned District Judge, Bannu who vide order dated 18.09.2013 dismissed the appeal hence the instant Writ Petition.
5. We have heard learned counsel for the parties and gone through the record appended with the petition.
6. Admittedly the petitioner himself filed a suit prior to the present litigation which was ended in compromise between the parties and in this respect compromise deed EX.PA was submitted wherein it was admitted that 50 Tolas gold ornaments were fixed out of which the petitioner promised that he would pay 11 tolas gold ornaments and for the remaining he would be bound to pay on her demand. The respondent/plaintiff prayed in her suit 39 tolas gold ornaments, still outstanding against the petitioner whereas contention of petitioner is that he has paid the remaining dower in shape of gold ornaments as well as cash amount worth Rs. 4,00,000/-. During evidence petitioner stated that he paid the same in presence of one Naeem Khan, his brother in law but he did not produce the said Naeem Khan in order to prove his stance. He has not produced any receipt or written proof regarding payment of remaining gold or cash amount. In such eventuality he has badly failed to prove payment of remaining dower i.e. 39 tolas gold ornaments. Further in view of admission in compromise deed and by not producing any tangible evidence by the petitioner it is held that petitioner is bound to pay the remaining 39 tolas gold ornaments.
7. So far as maintenance allowance of respondent as well as her two daughters is concerned, it is bounden duty of the husband and father for maintenance of her wife and children. So far as the contention of learned counsel for petitioner that she left the house with her own will and was not ousted is not understandable as how a wife having two kids could adopt such an irresponsible behavior. It is admitted position on record that in past also the relationship between the spouses remained strained and marital conjugation become possible due to compromise. So a family can pass happy life when both sacrifice for children and shown responsible behavior. In the instant case it is noticed that both are not adopting responsible behavior for them and for their children. So, when wife is abused, misbehavior and disrespected it is also a cruelty and on the basis thereof she may refuse to live with her husband and so she is entitled to the maintenance allowance. The learned Judge Family Court, Bannu has rightly fixed the quantum of maintenance allowance for the respondent and her children.
8. So far as the claim of petitioner regarding restitution of conjugal right is concerned, as the respondent has not prayed for dissolution of marriage hence there seems some light at the end of tunnel and ray of hope for the re-union of the spouses and children. The learned trial Court as well as learned Appellate Court below after proper appreciation of the evidence and circumstances of the case has rightly granted a decree for restitution of conjugal rights subject to payment of outstanding dower and maintenance allowance and upon refusal of wife for re-union had dis-entitled the wife for future maintenance hence judgment and decree passed by learned appellate Court is well reasoned so no exception could be taken against it. The learned counsel for petitioner could not point out any illegality or irregularity in judgments and decrees of both the Courts below which may warrant interference in the constitutional jurisdiction of this Court.
9. For the reasons discussed above, the instant Writ Petition being devoid of merit stands dismissed.
(R.A.) Petition dismissed
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