Kamran Sher Vs Mst Sadia and other

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Writ Petition No.1418-P of 2020

Kamran Sher & another vs. Mst. Sadia & others

JUDGMENT

Date of hearing: - 03.12.2020.

Mr. Rawil Khan, Advocate for the petitioners. Mr. Mukhtar Ahmad Maneri, Advocate for the respondent No.1.

MUHAMMAD NAEEM ANWAR, J.- Through the instant writ petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have prayed for the following relief: -

“In the above mentioned circumstances, it is, therefore, most humbly prayed that on acceptance of the instant Writ Petition impugned orders and judgments passed by both the learned Courts Family Court Swabi / respondent No.2 and Additional District Judge / MCAC / respondent No.3 Swabi to the extent of issues No.3 & 8 may kindly be declared null and void without jurisdiction, any other relief which this Honourable Court deems just and proper may also be granted”.

02.Encapsulated facts of the instant petition are that respondent No.1 (Mst. Saadia) / plaintiff filed a suit bearing No.209/FC on 07.09.2015, against the petitioners/defendants, before the learned Judge Family Court, Swabi, for recovery of dower amounting to Rs.1,00,000/- (rupees one lac), two (02) Tolas gold ornaments, maintenance allowance with effect from April, 2015 till subsistence of marriage at rate of Rs.15000/- per month, dowry articles as per appended list with the plaint and recovery of her share in the constructed house measuring 15-

Marlas. She, in her plaint, has averred that on the death of her first husband namely Imran s/o Fazal Sher, who died 02 years before the institution of the suit, she contracted 2nd marriage with the petitioner No.1/defendant No.1 (brother of her deceased husband Imran) and the dower was fixed as Rs.1,00,000/- with two Tolas gold ornaments, which is still outstanding against the petitioner No.1/defendant No.1, she was subjected to ill treatment and was forcefully ousted by petitioners / defendants some five months ago; that at the time of her marriage, dowry articles worth of Rs.1,81,000/- were given to her by parents, which are still lying with petitioner and that after her ouster, her father-in-law / petitioner No.2 has rented out the disputed house at the rate of Rs.3,000/- per month. The suit was contested by the petitioners / defendants on various legal and factual objections through their written statement. From the divergent pleadings of the parties, the following issues were framed by the learned trial Court: -

1.Whether plaintiff has got cause of action? OPP 2. Whether the plaintiff is entitled for recovery of Rs.1,00,000/- and 02 Tolas gold ornaments as dower? OPP

3.Whether the plaintiff is entitled for recovery of maintenance allowance, if so, at what rate and for how long? OPP

4.Whether the plaintiff is entitled for recovery of dowry articles as per the list annexed with plaint?

OPP

5.Whether the plaintiff is entitled for recovery of her shares in the constructed house? OPP

6.Whether the plaintiff is entitled for recovery of gold ornaments weighing 02 Tola as prayed? OPP

7.Whether the plaintiff’s dower was fixed as Rs.2000/- only and the same had been paid by defendant No.1/husband? OPD

8.Whether the plaintiff being self-deserted lady, is not entitled for any maintenance allowance? OPD 9. Whether list of dowry articles of plaintiff is fake and fictitious? OPD

10.Whether the defendant / husband is entitled for decree of restitution of conjugal rights? OPD After framing of issues, recording of evidence and hearing the arguments of both the parties, the learned trial Court vide its judgment dated 29.01.2019 partially decreed the suit with the following relief: -

“Relief. As sequel to my above issue-wise findings, the suit in hand stands partially decreed in favour of the plaintiff against the defendants and she is held entitled for the following relief only:

1)Recovery of Rs.2000/- as dower, as admitted by the defendant / husband,

2)Recovery of maintenance allowance @ Rs.10000/- per month w.e.f. 07.04.2015 (five months before institution of instant suit), till today and onwards till cohabitation of the parties or sustenance of the marriage or Iddat period upon valid retirement from the marital knot,

3)Recovery of dowry articles as per the defendants’ list EX.DW1/2, Prayer-IV and V of the plaint, being not proved, stands dismissed.

Defendant No.1/husband is held entitled for conditional decree of restitution of conjugal rights, subject to payment of Rs.2000/- dower and past maintenance. Defendant is directed to affix proper Court fee of Rs.15/- within 60 days of the order of this Court, otherwise his plea of restitution of conjugal rights will be considered as dismissed”.

03.Feeling dissatisfied from the judgment of the learned trial Court, the petitioners/defendants preferred an appeal bearing No.5/FCA on 05.03.2019 before the appellate Court, which was dismissed on 02.10.2019 by the learned Additional District Judge-I / Judge Model Civil Appellate Court, Swabi, hence, the instant Writ Petition.

04.Arguments heard and record perused.

05.Learned counsel for the parties were heard on 02.12.2020, thus, sensing the controversy and its nature, the hearing was adjourned for 04.12.2020 with the following directions: - “Keeping in view the facts of the case, the parties are directed to come up alongwith their counsel as a decree for conjugal right has already been passed by the Court below in favour of the petitioner which was not assailed by respondent No.1 and similarly in favour of respondent No.1, a decree for payment of maintenance allowance is based upon non-payment of dower amounting to Rs.2000/-. Adjourned to 04.12.2020”.

06.Notwithstanding, the subsistence of matrimonial tie, the parties have respective decrees against each other, the decree in favour of petitioner No.1 for restitution of conjugal rights against respondent being not challenged, has attained finality. An effort was made for reconciliation between spouses but respondent No.1 has shown unwillingness having abode with petitioner No.1.

07.The petitioner has challenged the verdict of the learned Courts below on the ground that though respondent No.1 has sought decree for recovery of dower amounting to Rs.1,00,000/- and two Tolas gold ornaments but the learned Family Court has determined the dower as Rs.2000/- only, which remained unchallenged, correspondingly, maintenance allowance was sought on the ground of forceful ouster however, respondent could not prove the same, nevertheless, the learned Family Court has granted the decree for maintenance at the rate of Rs.10000/- per month w.e.f. 07.04.2015 till subsistence of marriage on the

ground of non-payment of dower. The obligation of husband to pay Nifqa or maintenance would be construed in accordance with the principles as laid down in “HIDAYA” translated by Charles Hamilton in Chapter XV such as “Nifqa”, in the language of law, signifies all those things which are necessary to support of life, such as food, clothes and lodging. It was demonstrated as, when a woman surrenders herself into the custody of her husband, it is incumbent upon him to supply her with food, clothing and lodging, whether she be a Muslim or an infidel, because such is the precept both in the Holy Quran and in the sacred traditions also, because maintenance is a recompense for matrimonial restrain, whence it is that where a person is in the custody of another on account of any demand, or so forth, his subsistence is incumbent upon the other.

08.No doubt, the Islamic Law has also illustrated that when a woman refuse to surrender herself to her husband, on account of dower (that is, on account of its not having been paid to her), her maintenance does not drop, but is incumbent upon the husband, although she be not yet within his custody, since her refusal is only in pursuance of her right, and consequently the objection of matrimonial custody originates with the husband. Keeping in view the philosophy of Islamic law in juxtaposition with the facts of the case where respondent has opted not to live with petitioner No.1 on the ground of forceful ouster and non-payment of dower amounting to Rs.1,00,000/- with 2 Tolas gold, both the relief

sought by her were refused by the learned Family Court being not proved. The factum of fixation of dower remained controversial since the solemnization of Nikah till the decision by the Family Court, which at the end was fixed as Rs.2000/-, could not be considered a failure or refusal on the part of petitioner No.1 / husband either being controversial or not admitted by respondent, thus, leaving the house of petitioner and living apart from him was not justified at any cost especially when respondent has failed to prove ill treatment or physical torture on part of her husband / petitioner No.1, thus, in such circumstances the decree for payment of maintenance allowance w.e.f 07.04.2015 till subsistence of marriage on the ground of non-payment of dower, in circumstances of the case, is unwarranted.

09.For the reasons discussed above, the instant petition stands allowed and findings of learned Courts below on issue No.3 & 8 are reversed, consequently, the prayer of respondent / plaintiff for payment of maintenance allowance is declined.

ANNOUNCED.

JUDGE

Himayat, CS