Family court passed ex parte decree in favour of wife to the extent of maintenance allowance for herself and for the minor whereas her claim of dower and gold ornaments was declined--

  Family court passed ex parte decree in favour of wife to the extent of maintenance allowance for herself and for the minor whereas her claim of dower and gold ornaments was declined---Wife-plaintiff did not challenge the said decree and filed execution petition wherein husband-defendant moved an application for setting aside ex parte judgment and decree which was accepted---family court finally decree d the suit only to the extent of maintenance allowance for the wife and minor while rest of the claim in the suit was declined---Validity---Amount of Rs.5,000/- per month in case of desertion was fixed as maintenance in the Nikah Nama with mutual consent of the parties which should have been given due consideration---Nuptial disputes between the parties were consequence of unemployment of husband---No justification existed for reducing the quantum of maintenance from Rs. 5,000/- to Rs. 1,500/---Divorce certificate being a public document had presumption of correctness---Wife had been rightly held entitled for maintenance allowance beginning from July 2005 till 23-11-2007 and for the period of iddat---Wife had not challenged her portion of claim with regard to dower and gold ornaments which was declined in the ex parte decree by the family court ---Wife had acquiesced the said decision by not assailing the same through appeal---Such conduct of wife would amount to relinquishment of said part of claim---Wife would be debarred from subsequently agitating the same---Wife was having an option to file appeal but she failed to avail the same---Counter right accrued in favour of adverse party could not be discarded merely that ex parte judgment was subsequently set aside---Ex parte judgment would roll back to the extent of husband-defendant's claim---Principle of res judicata was applicable in circumstances---Wife-plaintiff could not re-agitate the claim which had already been decided finally---Period of six years from the accrual of right to sue had been provided for the recovery of maintenance allowance---Findings of both the court s below with regard to quantum of maintenance were in contravention of stipulation contained in the Nikah Nama---Wife was held entitled to maintenance @ Rs.5,000/- per month from July, 2005 to 23-11-2007---Constitutional petition was disposed of in circumstances.

2016 CLC 313
Mst. RUKHSANA KANWAL
Versus ABDUL JABBAR