1988 PLP 2355 (CLC)

(2) Whether the defendant associates with women of evil repute? O. P. P. (3) Whether the defendant misappropriated the plaintiff's ornaments and valuables? O.P.P. (4) Whether the defendant was previously married? Whether this information was withheld from the plaintiff at the time of marriage? 0 . P . P . (5) Whether the defendant has married third time without permission of the plaintiff? O.P.P. (6) Whether the defendant has failed to provide maintenance to the plaintiff? O.P.P. (7) Whether the plaintiff is entitled to Khula? O.P.P. (8) Whether the plaintiff has no cause of action? OPD. (9) Whether the suit for the recovery of Rs.5,000 as dower is mala fide? O. P. D. (10) Whether the plaintiff is entitled to the recovery of Rs.5,

000. O. P. D. (11) Whether the plaintiff is entitled to the recovery of maintenance? If so, at what rate and to what extent? O.P.P. (12)? Relief.

3. Both the parties led evidence in support of their respective contentions. The evidence was recorded on the file of dissolution of marriage. Respondent produced two witnesses Ismail PW.1 and Anwar Shah PW.2, and herself appeared as PW.3. Petitioner, on the other hand, produced Muhammad Razaq DW. 1, Javed Iqbal DW.2, Yousaf Ali DW. 3 and examined himself as DW. 4.

4. Learned trial Court after considering the evidence on the record found issue No.1 against the plaintiff holding that she had failed to establish that she was subjected to habitual cruelty by the petitioner. Issues Nos. 2, 3 and 5 were also found against the respondent for want of evidence. Issue No.4 was held to have been proved and it was found that the petitioner was already married before marrying the respondent but he withheld this information from her. Issue No. 6 was also found in favour of the plaintiff and it was held that on the evidence adduced by her, it was proved that the petitioner had failed to maintain her for a period of more than two years. Issue No.7 regarding Khula, too, was decided in favour of the respondent with the observation that the evidence adduced by the defendant? petitioner did not show that the plaintiff had derived any benefits from him at the time of marriage and, therefore, he was not entitled to the restoration of any benefits. Issue No. 8 was found in favour of the respondent. Issues Nos. 9 and 10 regarding the dower amount were decided in favour of the respondent as it was found that the evidence led by the petitioner that he had paid the dower amount to the respondent was contradictory to the petitioner's stand taken in the written statement that the respondent had given up the dower amount. On issue No. 11, it was held that the respondent as also her minor daughter were entitled to maintenance. The view taken by the learned Judge, Family Court, was that since the petitioner had not paid the dower amount to the respondent, she had a reasonable cause to live away from him and claim maintenance. Thus, keeping in view the monthly income of the petitioner, maintenance allowance for the respondent and the minor daughter was fixed at Rs. 300 and Rs. 250 per month respectively. With these findings, all the three suits filed by the respondent /plaintiff were decreed by the learned Judge, Family Court, vide judgment dated 28‑7‑1985. The decree in the maintenance suit was made effective from the date of its institution with the further direction that since the plaintiff's suit for dissolution of marriage stood decreed, her right to recover the maintenance allowance shall cease with the expiry of her 'Iddat' period.

5. Feeling aggrieved, petitioner preferred two appeals to assail the decrees passed in the suits for the recovery of dower amount and the maintenance. Both the appeals were heard together and dismissed by the learned Addl. District Judge, Lahore, by one judgment dated 23‑12‑1985 upholding the view taken and the findings recorded by the learned trial Court. Failing in his appeal, petitioner approached this Court in its constitutional jurisdiction by means of the present writ petition which was admitted to regular hearing only to consider the question whether the wife is entitled to maintenance during the pendency of a suit in which she had taken the plea of Khula.

6. Learned counsel for the parties have been heard. They have confined their submissions to the limited question for consideration of which this petition was admitted to hearing. It may, however, be stated that none of the learned counsel has been able to cite any law or authority for or against the proposition under examination. It is quite true that the wife seeking release from the marital tie on the ground of aversion for the husband may have to give up the settled dower or some other property or to forego her claim for maintenance in consideration for Khula but that matter will have relevance in the suit for dissolution of marriage, decree passed wherein is not under challenge in the present proceedings. Suit for maintenance, in my view, is to succeed or fail on its own merits. If the wife is otherwise entitled in law to maintenance she does not forfeit that right merely because she seeks divorce on the basis of Khula particularly when Khula is sought owing to some cause proceeding from the husband. Now, in the present case, it has been found by the learned Courts below that on account of non‑payment of dower by the petitioner, respondent had a right to live away from the petitioner and claim maintenance from him. It has been further found that the cause for Khula originated from the petitioner's conduct. In these circumstances, I am of the view that the respondent would not be deprived of her right to maintenance during the pendency of the suit and until the expiration of 'Iddat' period. Authorities on Muslim Law are clearly of the view that a woman separated by Khula is entitled to maintenance during the 'Iddat' period. Reference may be made to Syed Ameer Ali's celebrated treatise on Mohammedan Law, Volume 11 (Sixth Edition) wherein at page 378 it is stated: "A mala' inah, separated by the proceeding of 1'aan, is likewise entitled to maintenance and lodging. So also a woman separated by Khula or by reason of the apostasy of her husband, or of his having been guilty of misconduct??." Similar statement of law is available in Article 284 of 'Institutes of Mussalman Law' by Nawab A.F.M. Abdur Rahman, which is reproduced hereunder:‑ "284.??? Where husband is not released from his liability to pay maintenance‑‑Unless there is an agreement to the contrary, the husband at the time of Khula' repudiation is not released from the duty of providing his wife with maintenance and lodging during the period of her Iddat. If a wife separated by Khula is entitled to maintenance even during the period of 'Iddat', there is no reason why she should be deprived of her right of maintenance during the pendency of the suit based on the ground of Khula.

7. Apart from what has been said above, there is another aspect of the matter which has to be taken note of Respondent's suit for' dissolution of marriage is not based on the sole ground of Khula. She has also pleaded various other grounds and the suit, in fact, has been decreed on the ground of Khula as also on the ground of non‑maintenance for more than two years. That being so, the proposition canvassed on behalf of the petitioner will not be strictly applicable as the respondent's suit for dissolution of marriage was not brought and decreed on the plea of Khula alone.

8. Upshot of the above discussion is that I find no merit in this writ petition which is hereby dismissed but with no order as to costs. A . A . /I‑87/L????????????????????????????????????????????????????????????????????????? Petition dismissed.