1996 PLP 1723 (CLC)

NASIR‑UL‑MULK, J.‑‑‑This writ petition arises out of litigation between Mst. Nasreen Bibi and her husband Maqbool Shah. The two had entered into a contract of marriage on 2‑5‑1985. In the Nikahnama Rs.5,000 were fixed as dower and the husband further undertook to pay Rs.200 per month as maintenance to his wife. Out of the wedlock two daughters were born. The relationship between the spouses soon became strained and the wife alongwith her two children went to live with her parents. .

2. On 27‑4‑1991 Mst. Nasreen Bibi on her own behalf and on behalf of her two minor children filed a suit against her husband before the Judge Family Court for recovery of her dower and past maintenance at the rate of Rs.500 for each of the plaintiffs w.e.f. 27‑3‑1989, till the date of filing suit and future maintenance at the rate of Rs.600 per month per person. Maqbool . Shah respondent also filed a suit for restitution of conjugal rights before the same Court on 4‑6‑1991. The two suits were consolidated and on the pleadings of the parties consolidated issues are framed. The trial Court decreed both the suits. In other words the wife was awarded decree for recovery of dower and she alongwith children were also awarded past and future maintenance as prayed for whereas the husband was awarded a decree for restitution of conjugal rights, conditional upon his payment of dower and maintenance. On an appeal by husband the judgment and decree of the Family Court was modified to the extent that the wife was held not entitled. to maintenance as she had refused to live with her husband without any lawful excuse. Mst. Nasreen Bibi has now in this Constitutional petition questioned the judgment and decree of the Appellate Court.

3. The learned counsel representing the petitioner submitted that the dower, being prompt, was payable on demand and its non‑payment by the husband entitled the petitioner to live apart from her husband, and therefore ‑the District Judge had erred in law in concluding that the petitioner's refusal to live with the husband was without lawful excuse.

4. The learned counsel representing respondent No. 1, the husband, defending the impugned judgment submitted that as no demand for payment of dower was made by the wife, she had no legal justification not to live with her husband.

5. The learned District Judge had refused maintenance to the petitioner on the ground that according to the evidence the petitioner has not established that the husband had treated her cruelly which compelled her to leave the husband's house. Rather the Court found that the petitioner left the house by her own sweet will. The Appellate Court, however, did not address itself to the question as to whether non‑payment of dower entitles the wife to refuse to live with her husband. The Nikahnama shows that the dower was a prompt dower. It is true that the petitioner had not made any separate express demand from her husband to pay her the dower but the institution of the suit for recovery of dower has always been considered as a demand. The husband after institution of the suit, and even till date, has not paid the dower. The non‑payment of dower is a lawful excuse for the wife to deprive her husband of her companionship. Thus, at least from the date of institution of the suit the petitioner was legally justified P' to live apart from her husband. The husband is therefore, liable to pay maintenance to his wife from the date of institution of the suit against him until the payment of dower amount to the petitioner.

6. The writ petition is, therefore, allowed and the impugned judgment and decree is set aside as being without lawful authority and of no legal effect and the judgment and decree of the Judge Family Court dated 21‑3‑1993 is modified to the extent that the petitioner, Mst. Nasreen Bibi is allowed maintenance to‑be paid by her husband, Maqbool Shah respondent, at, the rate of Rs.500 per month from the date of filing of her suit till payment of dower. The parties are. left to the bear their own costs. H.B.T./1974/P Petition allowed.