2017 PLP 2481 (YLR)

MOHAMMAD SHERAZ KAYANI, J.

Since all the three appeals arise out from the common judgment of the trial court, therefore, these are being consolidated and will be disposed of through this single Judgment.

2. The captioned appeals have been preferred against the consolidated judgment and decrees of Civil Judge empowered as Judge Family Court No.2 Mirpur dated 27.02.2015, whereby a decree for dissolution of marriage was granted in favour of Mst.Neelum Shaheen plaintiff-appellant herein, on the ground of `Khula' in consideration of deferred dower worth Rs.1,40,000/- and she was also held entitled maintenance allowance at the rate of Rs.2500/-per month. Whereas her suit for recovery of deferred dower was dismissed while suit filed by Mohammad Sajjad appellant-defendant for restitution of conjugal rights was dismissed.

3. For the sake of brevity I am not inclined to narrate the brief facts of the case because the same have been incorporated in the impugned judgment of the trial Court in details.

4. Syed Nishat Kazmi, the learned Counsel for Mohammad Sajjad defendant-appellant reiterated the arguments raised in the appeal and submitted that the learned Judge Family Court erred while granting decree of maintenance allowance to the plaintiff appellant because according to testimony of witnesses it is amply proved that it is the plaintiff-appellant who is willfully refusing to live with defendant-appellant, she voluntarily left the house of her husband and it is settled law that when a wife voluntarily abandons the house of her husband, she is not entitled for any maintenance allowance, therefore, by accepting the appeal, impugned judgment and decree to the extent of maintenance allowance may be set aside.

5. Conversely, Ch. Mohammad Bashir Tabbassam, the learned counsel for Neelum Shaheen, plaintiff-appellant vehemently argued that the judgment and decree passed by the trial Court is quite against the settled principle of justice. He further argued that plaintiff-appellant has proved her claim to the extent of deferred dower from cogent and convincing evidence and all the witnesses have deposed in their statements that defendant appellant did not pay her deferred dower but the trial Court dismissed her suit in an illegal manner, therefore, a decree of deferred dower may be granted in her favour. Regarding maintenance allowance the learned counsel argued that the trial court did not consider the Nikah Nama in which it is mentioned that in case of desertion defendant-appellant shall pay maintenance allowance to his wife at the rate of Rs.3000/-while the witnesses of plaintiff and defendant also support her claim, in spite of that the trial Court fixed a meager amount which is not sufficient for her. The learned Counsel contended that the decision of learned Judge Family Court comes in the ambit of non-reading and misreading of evidence which is not maintainable, therefore, by accepting the appeals, the impugned decision and decree dated 27.02.2016 may be modified, and maintenance allowance may be enhanced while a decree of deferred dower may also be granted in her favour.

6. In the light of arguments addressed at Bar by the learned counsel for the parties, I have gone through the record.

7. It may be mentioned here that issue No.1 has been decided against the respondent-plaintiff Neelum Shaheen and it has been held that she did not prove the allegation of cruelty etc and was observed by the learned trial court that she was not willing to live with the appellant-defendant and a decree for dissolution of marriage was passed in favour of the respondent-plaintiff on the basis of `Khula'. The law is well settled on the point that if a wife is not willing to live with her husband then she is not entitled for maintenance allowance. The husband is duty bound to pay maintenance charges to the wife till she is faithful to the husband and lives with him and if she voluntarily leaves the house of her husband, she is not entitled to maintenance charges. My this view finds support from a case reported as "Mst Amreen v. Mohammad Kabir 2014 SCR 504, wherein it was observed as under:-- "Thus it can safely be concluded that it is the duty of the husband to maintain a wife till she is faithful to him and ready to live with him in his house and perform her part in this respect but if a wife abandons the residence of her husband voluntarily without any reason and is not ready to live with him as his wife then she is not entitled to past or future maintenance. It is further observed that if a wife is ousted from the house by husband due to cruelty physical or mental by the husband or other inmates of his family, she is entitled for maintenance charges." During trial, the plaintiff while recording her court's statement deposed that:-

10. In view of the statement of plaintiff-appellant who is sui-juris lady and recorded her statement without any fear and with her free consent. The Court has to decide whether in such situation she is entitled for maintenance allowance from her husband-appellant. According to law a wife is entitled for maintenance allowance only when she was forced to leave the house of her husband due to cruelty or violence etc but when she abandoned the house of the husband with her free consent and willfully refused to perform marital obligations then she would not be entitled to any maintenance allowance. In the instant case the plaintiff appellant has not established any act of cruelty of the respondent with cogent and reliable evidence and after leaving the house of her husband particularly when he filed the suit for restitution of conjugal rights in spite of that she was not willing to join him, therefore, I am not convinced to accept her appeal that she is entitled to maintenance allowance. In such circumstance the trial Court was not competent to order for recovery of maintenance allowance, thus the impugned judgment is not maintainable to this extent.

11. The decree for dissolution of marriage has been passed against the appellant-plaintiff on the basis of 'Khula' which has not been challenged by the plaintiff, she only challenged the decree to the extent of 'Zar-e-Khula'(consideration amount). The law is well settled that once a wife claims 'Khula' she has to return back what she received particularly as dower or she can make any other offer to give something to her husband as 'Badl-e-'Khula'. In the present case the learned trial Court has fixed the consideration of 'Khula' surrender of her right to recover the deferred dower of Rs.140,000/- No illegality has been committed. Even otherwise a wife is entitled for deferred dower when a husband divorces his wife. In the instant case she was not divorced by the respondent, rather their marriage was dissolved by the Court on the ground of 'Khula' which is always claimed by a wife. Although according to some scholars and judgment once the wife demands the deferred dower from her husband even before divorce then it becomes payable and can be treated as prompt dower, but in the case in hand the learned Courts below when fixed the consideration amount equal to deferred dower and held that her marriage has been dissolved on the condition to surrender her right to claim deferred dower, meaning thereby her right of deferred dower has been accepted but that dower was fixed as consideration of 'Khula' no prejudice has been done to the plaintiff-appellant. In light of facts listed above, I accept the appeal filed by Mohammad Sajjad and set aside the impugned judgment and decree to the extent of maintenance allowance, resultantly the appeals filed by Neelum Shaheen plaintiff-appellant to the extent of maintenance allowance and recovery of deferred dower stand dismissed. ZC/17/SH.C(AJ&K) Appeals dismissed.