--A wife carrying the name of her husband is entitled for maintenance from her husband. [P. 54] A

 PLJ 2014 Lahore 52

Maintenance--

----A wife carrying the name of her husband is entitled for maintenance from her husband.  [P. 54] A

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Interlocutory order--Maintainability of petition--Interim maintenance--Impugned order is an interlocutory order which cannot be challenged in writ petition as it does not bear characteristics of a final order which is always subject to judicial scrutiny under Art. 199 of Constitution--Petition was dismissed.     [P. 54] B

Sardar Faiz Rasool Khan Jalbani, Advocate for Petitioner.

Mr. Qaiser Nawaz Khan Niazi, Advocate for Respondent No. 2.

Date of hearing: 8.11.2013.

 PLJ 2014 Lahore 52

Present: Ali Baqar Najafi, J.

UMAIR AZEEM KHAN--Petitioner

versus

SHARAFAT ALI NASIR, LEARNED JUDGE FAMILY COURT, MIANWALAI and another--Respondents

W.P. No. 1178 of 2011, decided on 8.11.2013.

Order

Through this constitutional petition, the petitioner seeks setting aside of the impugned order dated 07.12.2010 whereby the interim maintenance of Rs. 3000/- per month was fixed in favour of the Respondent No. 2 by the learned Judge Family Court, Mianwali.

2.  The brief facts giving rise to filing of this petition are that on 14.05.2005 the petitioner got married with Respondent No. 2 whereafter Rukhsati took place on 09.11.2008. Since 10.07.2009 the Respondent No. 2 went to her parents house with her brother and did not return. Consequently, the petitioner filed a suit for restitution of conjugal rights against her. The Respondent No. 2 also filed a suit for recovery of maintenance and dowry articles against the petitioner and after failure of pre-trial reconciliation the learned Judge Family Court fixed the interim maintenance @ Rs.3000/- per month vide order dated 7.12.2010.

3.  The learned counsel for the petitioner submits that there was no stipulation in the Nikah Nama that if the Respondent No. 2 had failed to live with the petitioner, she will be provided the maintenance; that it was though, mentioned in the Nikah Nama that if relationship between the parties became soar the petitioner will be bound to pay Rs.20,000/- per annum which shows bona fides on his part; that the Respondent No. 2 is not ready to perform her marital obligations, therefore, she is not entitled for maintenance; that under the Islamic Law disobedient and disgruntled wife is not entitled for the maintenance. Places reliance upon Irfan Ahmed versus II-Judicial Magistrate East at Karachi and another (2006 MLD 135 [Karachi]), Muhammad Khalid Javeed versus Mst. Shahida Parveen and 4 others (2007 YLR 1366 [Lahore]) and Firozuddin Ahmad versus Trading Corporation Of Pakistan Ltd. and another (1987 MLD 124 [Karachi]) in support of his claim and prays for acceptance of the petition.

4.  Conversely, the learned counsel for the Respondent No. 2 submits that the writ petition is not competent against an interim orders; that the order impugned in this writ petition has been suspended for the last three years, therefore, the Respondent No. 2 is in dire need of maintenance allowance; that: as per the computerized salary slip petitioner earns Rs.22000/- per month at least and has enough financial capacity and prays for dismissal. Places reliance upon Mst. Tahira Perveen versus Syed Hasnain Raza Gillani and another (2011 YLR 266 [Lahore]) and Muhammad Irfan versus Judge Family Court, Sargodha and 2 others (2008 CLC 585 [Lahore]).

5.  I have heard the learned counsel for the parties and perused the available record.

6.  Admittedly, the relationship between the petitioner and Respondent No. 2 is that of husband and wife which exists even today. It is also admitted that interim maintenance fixed vide impugned order has not been provided to the Respondent No. 2. The grounds taken by the learned counsel for the petitioner that the disobedient wife is not entitled for maintenance under the Islamic Law may not be appreciated simply because in the impugned order itself the Respondent No. 2 has made a very reasonable demand of a separate house and maintenance allowance. As the suit, for restitution of conjugal rights is also pending showing intention of the petitioner to take the Respondent No. 2 back to his house, therefore, in my humble opinion the payment of maintenance will not only establish his bona fides but also provided him a good ground to persuade and prevail upon the Respondent No. 2 to change her mind. Even otherwise a wife carrying the name of her husband is entitled for maintenance from her husband.

7.  The judgments cited by the learned counsel for the petitioner are not relevant to the facts of the case as none of those cases the maintenance to the wife by the husband was declined in total.

8.  The impugned order is an interlocutory order which cannot be challenged in writ petition as it does not bear the characteristics of a final order which is always subject to judicial scrutiny under Article 199 of the Constitution.

9.  In this view of the matter this petition has no merits and is, therefore, dismissed.

(R.A.)  Petition dismissed