2012 PLP 1329 (CLC)

SALMAN HAMID, J.

The respondent No.1 a mother of two and a divorcee, was married to the petitioner who also lost his wife due to her natural death. At the time of marriage of the respondent No.1 with the petitioner, it seems that dower amount of Rs.2000/- was settled and House No.1931, Ghazi Nagar, Siddique Wahab Road, Usmanabad, Karachi, measuring 60 square yards, (House): was also settled towards dower. The petitioner and the respondent No.1 for most of time of their marriage remained at odds and it seems that the petitioner in or about 1992 attacked the respondent No.1 with the result that she sustained bullet injuries and a case of attempted murder was also filed, which however, subsequently was withdrawn and/or compromised between the petitioner and the respondent No.1 the same year but the respondent No.1, after such incident developed fear for her life at the hands of the petitioner; though remained in his wedlock stayed away from him and led a separated life since that time.

2. In or about April, 2008 the respondent No.1 preferred Family Suit No.512 of 2008. (Family Suit) for recovery of maintenance from 1992 at the rate of 15,000 per month and for dower amount/House being part of the dower which was contested by the Petitioner hut in terms of judgment and decree dated 28-7-2009. Finally Suit was decreed by XIV-Family Judge, Karachi Central (Family Court) whereby the petitioner was directed to pay dower amount of Rs.2000/- per month to the respondent No.1 inasmuch as such amount of dower was accepted by the petitioner though Nikalmama was not brought on record and for such reason House being part of dower was not allowed as to that extent it was by the petitioner. The petitioner was also directed to pay to the respondent No.1 maintenance for the last 6 years before filing of Family Suit at the rate of Rs.1500/- per month together with maintenance since date of filing of Family Suit at the rate of Rs.2500/- per month with 10% annual increase. The respondent No.1 was also found entitled for medical expenses of Rs.20,000/-. The Petitioner feeling aggrieved by above judgment and decree preferred Family Appeal No.46 of 2009, (Family Appeal) but no avail inasmuch as 1st Additional District Judge, Karachi Central (1st ADJ) upheld findings of Family Court.

3. Present petition is a result of above outcome. It was argued by learned counsel for the petitioner that both courts below failed to appreciate the fact that after patching up of the respondent No.1 with the petitioner when criminal case for attempted murder was compounded, the respondent No.1 started living with the petitioner and when the petitioner objected to her life style which according to him (petitioner) was not befitting of a woman of character and that it was objected that she was leading immoral life and had also got involved their daughter in such immorality, she left on her own accord and reason for living away was not attempted murder, for which she had already forgiven him (petitioner) and compounded the case. Therefore, the respondent No.1 was not entitled to maintenance past, present or future. It was also contended that even otherwise two courts below could not have allowed past maintenance and/or maintenance beyond a period of six years and that such having been allowed was an illegality and needs to be corrected by this court. It was also contended that the petitioner being an old man and of limited means even otherwise could not afford maintenance amount as determined and allowed by two courts below and such needs to be set aside. It was lastly contended that the petitioner had divorced the respondent No.1 therefore, question of maintenance to her was out of question.

4. On the other hand learned counsel for the respondent No.1 resisted the petition. It was argued that the petitioner himself admitted during cross-examination that dower amount of Rs.2000/- was settled and same was not paid and despite giving opportunity of rebutting contention of the respondent No.1, the petitioner failed to refute the same and nothing was brought on record in the shape of evidence and/or extracted from the respondent No.1 by way of cross-examination that she was living away from the petitioner note because or fear for her life at the hand of petitioner and that the petitioner also failed to show that he was a man of limited or meagre means inasmuch as it was admitted in cross-examination and it also came on record that he was deriving income from rents of flats and shops in the House. It was also asserted that the petitioner also failed in showing and establishing that the respondent No.1 was leading an immoral life as was alleged and nothing came on record in such regard. The petitioner also failed to establish that he divorced the respondent No.1. It was contended that decision of the two courts below requires no interference. It was also stated that as far as allegation of claim of maintenance beyond limitation period is concerned two courts below in terms of Article 120 of Limitation Act only granted maintenance of past six years, excluding the time-barred claim of the petitioner.

5. I have considered arguments of learned counsel on either side and perused the record. It is an admitted position that the petitioner got married to the respondent No.1 in or about 1970 and that at the time of petitioner's marriage with the respondent No.1 she was a divorcee and a mother of two and that from wedlock of petitioner and respondent No.1 other children also born and all of them were looked after by the respondent No.1. It is also an admitted position that the respondent No.1 received bullet injuries and that till today one bullet is stuck in the neck of the respondent No.1 because of which she is under constant treatment and she is also bearing expenses in respect thereof from her own pocket. It also came on record that nothing was paid towards maintenance by the petitioner to the respondent No.1 as it was asserted that petitioner had divorced the respondent No.1. However, to substantiate such divorce nothing was brought on record. Divorce remained unproved. Nowhere it was disputed or denied that the respondent No.1 was not owner of the House. It was not refuted that there was no income from the House in the shape of rents.

6. It is natural that a wife whose husband had attempted to kill her and also made bullet injuries would remain under constant threat. In the case in hand respondent No.1 still has a bullet stuck in her. Leaving petitioner under such precarious conditions and also knowing him to be of short temper was nothing out of the ordinary but because of harsh attitude of the petitioner and under the circumstances. Respondent No.1 was not living away from the petitioner on her own accord but for the reasons which were unavoidable. The petitioner's claim that the respondent No.1 remained away on her own accord does not seem logical. In this view of the matter, orders passed by the two courts below do not require any interference for more than one reason. Firstly because same were passed after appreciation of evidence that was led before Family Court and was upheld in Family Appeal and secondly no non-reading or misreading of evidence was brought forward which would require any interference. The petitioner has failed to make out any case and under the circumstances, the petition is dismissed however with no order as to costs. K.M.Z./S-16/K Petition dismissed.