2017 PLP 101 (CLCN)

GHULAM MUSTAFA MUGHAL, J.

This appeal by leave of the Court is directed against the judgment and decree passed by the learned Shariat Court of the Azad Jammu and Kashmir on 29.9.2016.

2. The precise facts forming background of the captioned appeal are that Mst. Farhat Bibi, respondent No.1 herein, brought three suits against Mukhtar Hussain, appellant, herein, before the learned Judge Family Court, Authmuqam on 7.8.2010. Suit No. 40 was filed for dissolution of marriage, whereas, Suit Nos. 41 and 42 were filed for recovery of dower and dowry articles and for maintenance respectively. It was averred that the marriage of the plaintiff was solemnized with the defendant, respondent, herein, in accordance with Sharia on 2.6.1994 in lieu of dower amounting to Rs.50,000/-. Out of the total dower amount, Rs.10,000/- was paid in shape of ornaments and land measuring one kanal was agreed to be transferred in the name of the plaintiff for remaining amount. It was further averred that after the Nikah, the plaintiff populated with the defendant and relationship of the spouses remained cordial. From the wedlock the plaintiff had a daughter and a son. The male child is living with the defendant, whereas the daughter is living with the plaintiff. Thereafter, the relations between the spouses became strained and for contracting second marriage, the defendant started mal-treating the plaintiff. It was stated that on 20.4.1998, a Jirga was convened between the parties, as a result whereof an agreement was executed by the defendant for looking after the plaintiffs, respondents, herein. It was stated that due to male- treatment, cruelty and conduct of the defendant, she was forced to leave the home of the defendant. It was claimed that now plaintiff has developed incurable aversion to her husband and she cannot live with him within the limits ordained by Allah Almighty. The suit was contested by the defendant by filing written statement. It was pleaded that the suit is not maintainable as the plaintiff was divorced by the defendant on 1.4.1999 and the divorce was conveyed to the plaintiff. It was claimed that continuation of the suit is an abuse of the process of the Court and in-fact the suit has been filed for harassment of the defendant. It was admitted by the defendant that the plaintiff received Rs.10,000/- in shape of ornaments, however, Rs.40,000/- were due and the said amount was adjusted against the amount received by the mother of the plaintiff, hence, the whole dower had been paid. It was stated that neither the land claimed by the plaintiff was given in lieu of dower nor to this effect any agreement was executed. It was stated that out of wedlock, there is a daughter and a son. The son is living with the defendant, whereas, the daughter was taken by the plaintiff in presence of the witnesses on the ground that she will not claim any maintenance.

3. The suit No. 41 was filed for recovery of dower. The facts of the case are almost the same, therefore, need not to be reiterated for the sake of brevity. The defence of the defendant is also same and it is categorically stated by him that the whole dower was paid to the plaintiff.

4. The 3rd suit was filed for recovery of maintenance of the plaintiff as well as the minor daughter. It was claimed that the plaintiff abandoned the maintenance of the defendant for more than 12 years and since than plaintiff is living a miserable life and is also bearing the expenditures of plaintiff No.2. It was claimed that the defendant is under obligation to pay the maintenance to the plaintiff as well as the minor daughter. It was stated that on 2.6.1994, an agreement was executed by the defendant, whereby it was agreed to pay the outstanding amount. On 20.4.1998, another agreement was executed by the defendant for the same purpose. It was claimed that the defendant has contracted second marriage. Thereafter, on 20.12.2003 another Jirga was held but in vain. It was claimed that the plaintiff is unable to live without proper maintenance because she has no source of income, whereas plaintiff No.2 is minor and is a student and the defendant has reasonable income and is bound to maintain the plaintiff and her minor daughter. It was claimed that in the present circumstances, the defendant is bound to pay Rs.3000/- to each per month. The defendant has contested the suit. It was further claimed that the plaintiff is not competent to file the suit and the suit is time barred. It was claimed that the whole dower has been paid and the plaintiff has been divorced since 1999 and has no right to claim the maintenance. It was stated that the plaintiff has been paid Rs.1,000/- per month as long as she remained his wife. The plaintiff has taken her daughter on the ground that she will not claim any maintenance. All the suits were consolidated and after conducting the necessary proceedings the Judge Family Court vide judgment and decree dated 28.8.2014 awarded decree of dower amounting to Rs.40,000/- to the plaintiff and in case of non-payment of dower by defendant No.1, it was ordered that defendant No.2 who is surety of defendant No.1, shall pay the said amount. The suit was dismissed to the extent of Rs.10,000/-. The suit for recovery of dowry articles was also rejected, however, the suit for dissolution of marriage was dismissed on the ground that the plaintiff has already been divorced. The decree for maintenance to the extent of Mst. Farhat Bibi, plaintiff No.1 was also refused, whereas, the decree for maintenance in favour of plaintiff No.2 was granted in the terms that the defendant shall pay Rs.2000/- to the plaintiff from the date of suit till her marriage. Feeling aggrieved from the judgment and decree passed by the Judge Family Court, both the parties went in appeal before the Azad Jammu and Kashmir Shariat Court. The learned Judge in the Shariat Court after hearing the parties vide judgment and order dated 29.9.2016 dismissed the claim of Mst. Farhat Bibi on the ground that she has been divorced, however, enhanced the amount of maintenance granted by the learned Judge Family Court from 2000/- to 3000/- per month in favour of Midhat Mukhtar and the remaining judgment of the Family Court was maintained.

5. Mir Abdul Latif, Advocate, appearing for the appellants, argued that the judgment of the learned Judge Shariat Court is against the record, erroneous and illegal, hence, is liable to be recalled. The learned counsel contended that the past maintenance beyond 6 years cannot be granted under law. The learned Advocate argued that the suit filed on behalf of Mst. Farhat Bibi for recovery of dower was also time barred and it was enjoined upon the Family Court as well as the Shariat Court to dismiss the suit in view of the provision contained in section 3 of the Limitation Act. The learned Advocate argued that there was no appeal before the learned Judge Shariat Court for enhancement of the maintenance in favour of Medhat, plaintiff, and the learned Judge fell in error while enhancing the amount suo motu.

6. Conversely, Mr. Haroon Mughal, Advocate, appearing for the respondents, defended the impugned judgment and order. He submitted that there is no limitation on the powers of the Shariat Court to enhance the maintenance amount in view of the prayer made before the learned Judge Family Court. The learned Advocate argued that as the appeal is continuation of the original proceedings and any proper order can be passed by the appellate Court, as law is well settled that relief can be granted even to a non-appealing party.

7. We have heard the learned counsel for the parties and gone through the record of the case. A perusal of the record reveals that Mst. Farhat Bibi filed three suits before the learned Judge, Family Court, Authmuqam on 7.8.2010. The first suit was filed by her for dissolution of marriage. The second suit was filed for recovery of dower amounting to Rs.50,000/-, whereas, the third suit was brought for maintenance. So far as the first suit is concerned, the same was dismissed by the learned Judge Family Court on the ground that Mst. Farhat Bibi stood divorced in 1999, therefore, the question of dissolution does not arise. Though, Mst. Farhat Bibi has challenged the legality and correctness of the judgment of the Family Judge before the Shariat Court but the same has been dismissed and no appeal has been filed by her before this Court, therefore, the judgment of the learned Judge, Family Court has attained finality. The contention of Mir Abdul Latif, the learned Advocate appearing for the appellants that the suit for dower was time barred, is devoid of any force. A perusal of the record of the trial Court reveals that in the light of the pleadings of the parties, issues were framed on 21.9.2011. No issue on the question of limitation has been framed. The appellants remained alive to the fact but he did not move to the Court for framing appropriate issue regarding the question of limitation. A perusal of the judgment under appeal further reveals that the point of limitation has not been taken before the Shariat Court. By now, law is settled that the question which has not been raised before the High Court or the Shariat Court cannot be allowed to be raised for the first time before this Court. Similarly, if the question was argued but has not been decided by the learned Shariat Court, then it is the duty of the party to file affidavit stating therein that the question was raised before the Shariat Court but escaped the notice of the learned Judge. Only in that eventuality, the question can be taken up by this Court. No such course has been adopted by the learned Advocate appearing for the appellants, therefore, we are not inclined to disturb the findings recorded by the Family Judge as well as the Shariat Court on this point.

8. So far as the question of enhancement of maintenance is concerned, that has a substance. Maintenance has been awarded to Medhat, minor daughter, of the appellant to the tune of Rs.2000/- and she has not filed any appeal against the judgment of the learned Judge Family Court, Authmuqam for enhancement of the maintenance. The learned Judge of the Shariat Court has enhanced the amount without any appeal or appropriate proceedings suo motu, which is not permissible in law. In this regard, we may place reliance on a case titled Mahar Iqbal v. Afzal Iqbal and others (Civil Appeal No.13 of 2016 decided on 14.12.2016), wherein, it was observed by this Court as under:- "It is crystal clear from the findings recorded by the trial Court that past maintenance charges were not claimed by the plaintiffs-respondents, herein. The trial Court awarded the past maintenance charges only on the ground that ousting of the plaintiffs-respondents, herein, from the house of the defendant-appellant, herein, 6 years back is proved and it is due to incompetence of the counsel that they failed to demand the past maintenance charges. The law is settled on the point that the judgment cannot be delivered in vacuum. Only such relief can be granted to a party which is claimed by him. The past maintenance charges were not prayed for. Without specific prayer, the past maintenance charges cannot be granted." The appeal is partly accepted and the judgment of the Shariat Court stands modified to the extent that Medhat, daughter of respondent No.2, herein, would be entitled only Rs.2,000/- per month as maintenance for the period mentioned in the judgment of the Family Court. No order as to costs. MQ/45/SC(AJ&K) Order accordingly.