1999 PLP 615 (YLR)

This common judgment will dispose of the two Constitutional petitions arising out of the consolidated judgment, dated 25‑3‑1998 passed by the 1st Additional District Judge, Karachi (West) in the Family Appeals Nos. 11 and 12 of 1997 as the facts are common in both these petitions.

2. The petitioner was married to the respondent No. l on 8‑1‑1993, according to Sunni Muslim Law and the dower amount agreed between the parties was fixed at Rs.40,000 as prompt. Unfortunately, the relationship between the parties remained cordial only for a brief period and a dispute arose which resulted in their separation. This led to institution of litigations against each other. The petitioner filed two family suits against the respondent No.

1. First Suit bearing No.26 of 1995 was for seeking recovery of maintenance from May, 1994. Second Family Suit bearing No.25 of 1995 filed against the respondent No. l was for recovery of prompt dower amounting to Rs.40,

000. The respondent No. l also filed a Family Suit bearing No.615 of 1995 against the petitioner seeking restitution of conjugal rights. All the three suits were consolidated and were disposed of by the learned IVth Family Judge, Karachi (West) vide judgment, dated 28‑4‑1997. The Family Suit No.25 of 1995 filed for recovery of prompt dower was dismissed while petitioner's Family Suit No.26 of 1995 for past maintenance was decreed. The suit of petitioner for restoration of conjugal rights was also decreed but with no order as to costs. Against the judgment in Family Suit No.26 of 1995, respondent No. l filed appeal challenging the grant of maintenance. However, the present petitioner did not file any appeal against the order of Family Judge directing restitution of conjugal rights as immediately after pronouncement of the said judgment, the respondent No. l on 5‑6‑1997 pronounced divorce. This fact is admitted by the respondent No.

1. The learned 1st Additional District Judge, Karachi (West) through a consolidated judgment (impugned judgment) allowed the appeal of respondent No. l and dismissed the petitioner's appeal. It is this order which has been challenged in these two Constitutional petitions.

3. I have heard Mr. Shaikh Muhammad Usman, Advocate for the petitioner and Mr. Attaullah Khan, Advocate for the respondent No.

1. It was strenuously argued by Mr. Shaikh Muhammad Usman that both the subordinate Courts have erred in not considering the facts that non‑payment of dower gives a justification to a wife not to perform her marital obligations and to live separate from her husband. It was further argued that the learned Appellate Court has proceeded on the assumption that since the dower amount was paid on the marriage day vide column No.16 of the Nikah Nama, the petitioner was not entitled for payment of prompt dower amount. According to Mr. Muhammad Usman Shaikh, this was not the case of the respondent No. l who has admitted in para. No. l of his suit for restitution of conjugal rights that the amount of dower was paid on 12‑1‑1993 through an Iqrarnama executed by the petitioner. It was further contended that the findings of these two subordinate Courts are based on misreading, non‑reading and mis-appreciation of the admitted facts warranting interference of this Court under the Constitutional jurisdiction. He has placed reliance on the following cases:‑‑‑ (i) Chanani Begum v. Muhammad Shafiq and 2 others (PLJ 1985 Lahore 232); (ii) Muhammad Ishaque v. Mst. Rukhsana Begum and 2 others (PLD 1988 Karachi 625); (iii) Mst. Nasreen Bibi and others v. Maqbool Shah and others (1996 CLC 1723); (iv) Allah Ditta v: Mst. Naseem Mai and another (1998 MLD 1890); (v) Mst. Saadia Shirin v. Javed Ali Bhatti and 2 others (1991 MLD 784); and (vi) Khalid Mehmood v. The District Judge, Dera Ismail Khan and 2 others (1995 MLD 298).

4. It was contended by Mr. Attaullah Khan, Advocate for the respondent No.l that the law of Qanoon‑e‑Shahadat 1984 and provisions of C.P.C., 1908 are not applicable in a trial before the Family Judge as per provisions of section 17 of the Family Courts Act, 1964 and, therefore, the respondent No.l has successfully proved the payment of dower amount. It was further argued that the scope of Article 199 of the Constitution, 1973 is very limited and particularly in the circumstances of the present case, the petitioner is not entitled to maintain this petition as it involves consideration of controverted facts. He has placed reliance on the case of Muhammad Suleman v. Zubaida Bibi (1995 PSC 441).

5. It is settled law that where any authority or a Tribunal passes an order by ignoring any admitted fact or material evidence or when there is gross misreading or non‑reading of any material document, then this Court under Article 199 is competent to interfere with such order to correct such illegality. In so far as entitlement of a wife to refuse consummation of marriage without payment of prompt dower is concerned, it was held by a learned Single Judge of this Court, Saleem Akhtar, J. (as his Lordship then was), in the case of Muhammad Ishaque (supra) that in case of prompt dower; after Nikah the wife becomes entitled for the same and that such wife is entitled to refuse consummation of marriage. Reference was made to Kitabul Fiqha (Volume IV) by Abdul Rehman Aljasairi and Raddul Muhtar (Volume 11) by Nawab A.F.M. Abdul Rehman. In the case of Chanani Begum (supra), it was held by a learned Single Judge of the Lahore High Court that a wife is competent to refuse herself to husband and to live separately from him unless prompt dower is paid to her. In the case of Mst. Nasreen Bibi (supra), it was held by a learned Single Judge of Peshawar High Court that "the non payment of dower is a lawful excuse for the wife to deprive her husband of his companionship". This question was very vital which was not considered by the two subordinate Courts.

6. The learned Appellate Court proceeded on the premises that it was mentioned in column 16 of the Nikahnama, which is an admitted document, that eight tola golden ornaments were given to the wife/petitioner, which was sufficient proof of payment of prompt dower. Learned Appellate Court ignored the material fact that it was not the case of the respondent No. l who all along the trial before the Family Court pleaded that the prompt dower was paid on the fourth day after the marriage. There is an Iqrarnama on record which was exhibited before the Trial Court which is claimed to be attested by a Notary Public. There are allegations and counter allegations on the execution of such Iqranama which were not considered by the learned trial Court. At the same time, I may observe that it is very strange to note that a husband took his wife to the City Court premises at Karachi just four days after marriage and got the Iqramama executed before the Notary Public in respect of payment of prompt dower of Rs.40,

000. This fact is destructive to the contents of column 16 of the Nikahnama. Again, this aspect of the case was not considered by the Appellate Court.

6. The appeal of the respondent No. l against the decree of suit for past maintenance was allowed and the suit of the petitioner for maintenance was dismissed on the same ground that since the dower amount was paid, there was no justification available to the petitioner to live apart from her husband. In such circumstances past maintenance was also declined to the petitioner. It is pertinent to observe that the learned Family Court framed as much as five issues and gave negative finding on the issue that "Whether the plaintiff/petitioner is living away from the defendant without any just cause." This finding was upset by the Appellate‑Court without looking into evidence led by both the parties and the law laid down by the superior Courts.

7. After hearing both the learned counsel at length and after going through the record, I am of the considered view that the learned Appellate Court had not considered the case of the petitioner in its true perspective and the view of the law laid down by this Court, which was binding on him. In such circumstances, both these petitions are accepted and the impugned judgments are set aside with the result that both the appeals filed by the petitioner will be deemed to be still pending before the concerned Court of appeal. The case is remanded to the Appellate Court for reconsideration on merits after giving notice to the parties and with the direction to dispose of the same preferably within a period of three months from the date of receipt of this order. All the observations made hereinabove are tentative in nature and in no manner may prejudice the mind of the appellate authority Q.M.H./M.A.K./K‑75/K Petition allowed