1999 PLP 878 (CLC)

By virtue of the single judgment the Writ Petitions Nos.2258, 3279 and 691 of 1998 are decided.

2. Brief facts leading‑to the aforesaid writ petitions are that Mst. Rukhsana Tabassum, the petitioner in Writ Petition No.3279 of 1998 and Writ Petition No.2258 of 1998 and respondent in Writ Petition No.691 of 1998 was married with Saghir Ahmad on 14‑4‑1994. She lived for four months with Saghir and went to her parents. Later on, she demanded a separate house in view of her grievances against the parents of her husband and her husband for cruelty and threats. Later on this gave rise to multiple litigation between marital spouses. Saghir Ahmad filed a suit for restitution of conjugal rights against Mst. Rukhsana Tabassum which was decreed vide judgment and decree, dated 6‑2‑1996 passed by the learned Family Court, Lahore. The appeal against the said judgment was dismissed by Mian Nasir Hussain, Additional District Judge vide judgment and decree, dated 19‑11‑1997. Mst. Rukhsana Tabassum also filed a suit for the grant of maintenance allowance which was decreed vide judgment and decree, dated 22‑10‑1995 and appeal against the aforesaid judgment and decree filed by Saghir Ahmad was dismissed vide judgment and decree, dated 19‑11‑1997 passed by Mian Nasir Hussain, Additional District Judge, Lahore. Both the aforesaid judgments are under challenge in the Writ Petition No.691 of 1998.

3. Learned counsel for the petitioner has submitted that the learned Courts below could not grant maintenance as Mst. Rukhsana Tabassum, the respondent in the aforesaid writ petition was not legal entitled to live apart from the petitioner without any specific allegations made against respondent No. l in her plaint about any cruel treatment meted out by her at the hands of her husband and that the learned Courts below could not grant the maintenance allowance to Mst. Rukhsana Tabassum on the ground that the petitioner has not paid the dower amount when such ground is not taken in her plaint and in the evidence and even at the time of the arguments and that the learned Courts below have given a conflicting judgment while decreeing the suit for restitution of conjugal rights and maintaining the finding of the learned Family Court by dismissing the appeal filed by the respondent Mst. Rukhsana Tabassum and then allowing maintenance allowance to her, when the settled law by the superior Courts is that wherever a decree for restitution of conjugal rights is passed against the wife she is not entitled to any decree for maintenance.

4. The petitioner Mst. Rukhsana Tabassum filed the Writ Petition No.3279 of 1998 against the judgment and decree, dated 22‑10‑1995 for the grant of recovery of maintenance allowance amounting to Rs.1,000 and also the judgment and decree, dated 19‑11‑1997 refusing the enhancement of maintenance allowance.

5. Mst. Rukhsana Tabassum also filed Writ Petition No.2258 of 1998 against the judgment and decree, dated 6‑2‑1996 passed by the learned Family Court, Lahore decreeing the suit for restitution of conjugal rights and dismissal of the appeal against the said judgment by Mian Nasir Hussain, Additional District Judge, Lahore vide judgment and decree, dated 19‑11‑1997.

6. In the first writ petition the learned counsel for the respondent has argued that it is a settled law that a wife is entitled to live apart and claim maintenance if her. husband refuses to pay prompt dower on demand. He has relied on Rahilan v. Sana Ullah PLD 1959 (W.P.) Lah.

470. He also submitted that the respondent husband did not maintain the petitioner from the very first day of marriage and she was being maintained by her father financially and therefore, the decree of maintenance should have been passed from the date claimed in the suit and not from the date of filing of the suit and that the learned Courts below have not attended to the daily need and requirements of the common man, therefore, the grant of maintenance allowance at the rate of Rs.1,000 was not sufficient for one time only and needs for dress and other maintenance and that irrespective of the fact that prompt dower was not paid to the petitioner while she had other good reasons not to stay in her husband's house in an atmosphere of terror. The petitioner was not cross‑examined and her statement is presumed to be true, therefore, the plaintiff is entitled to the enhancement of maintenance allowance.

7. In the Writ Petition No.2258 of 1998 the learned counsel submitted that the petitioner wife had made a demand for the payment of prompt dower through filing a suit for the recovery of dower and it is proved that up to this time the respondent husband has not paid the prompt dower which otherwise entitles a wife to live apart from her husband and refuse him company and the husband is bound to pay her maintenance. He relied on PLD 1959 (W.P.) Lah.

470. He attracted the attention of this Court to the evidence produced on record with reference to her own statement as D.W.3 where she has stated that the atmosphere of plaintiff/respondent husband's house is not good. She has seen her mother‑in‑law making obscene acts with her sons‑in‑law and she has also seen that the sister of plaintiff‑respondent husband has kept in blind man Nasir and she lives for one day in in‑laws house and one day in her mother's house and has illegal connection with the aforesaid man and that the learned Courts below have wrongly applied their mind to the fact that the petitioner wife has not filed any suit for dissolution of marriage and also ready to live with the respondent. She was not ready to live with the parents of her husband for the reagon of being the morality and honour and they have wrongly observed that the P.W.1 respondent No.3 (the husband) being the only son of his parents having one married sister cannot leave his parents. They have neglected the evidence that the day the petitioner came from the house of her husband she was starving for three days and the statement goes unrebutted. The learned Courts below have also failed to appreciate that the suit for maintenance allowance of Rs.1,000 was decreed against the respondent husband and he has not paid the decretal amount of Rs.10,000 the prompt dower money then how could a decree for restitution of conjugal rights could be passed in his favour by the learned Family Court and affirmed on appeal by the learned Appellate Court.

8. I have heard the learned counsel for the parties and have carefully perused the record.

9. The suit for restitution of conjugal rights was filed on 5‑9‑1993. It was decreed on 6‑2‑1996 by the learned Family Court, Lahore. The appeal against the same was dismissed vide judgment and decree, dated 19‑11‑1997. The suit for maintenance allowance was instituted by Mst. Rukhsana Tabassum on 29‑9‑1994. It was decided vide judgment and decree, dated 22‑10‑1995 passed by the learned Family Court, Lahore. The two appeals titled as Saghir Ahmad v. Mst. Rukhsana Tabassum for setting aside the said judgment and decree and Mst..Rukhsana Tabassum v. Saghir Ahmad for enhancement of maintenance allowance were dismissed vide single judgment and decree, dated 19‑11‑1997 stating that the maximum salary of appellant/respondent was Rs.5,000/6,000 per month and he could not afforded to pay Rs.1,000 per month and this is the sufficient amount for every day need.

10. I have also perused the evidence Saghir Ahmad appeared as P.W.1 and has stated that Rukhsana Tabassum lived as a wife and has been performing matrimonial relationship. He has never beaten her. She went to attend some marriage, took ornaments and clothes and never returned. He is the only son and is living in his father's house. He has one sister who is married and the parents are old and he has not that much income that can keep the wife in a separate house. He also refused to admit that he kept his wife starving for two days and that his mother has said to his wife that if a married girl goes from her in‑laws house they will take dower back and that he has not demanded motorbike and cooler etc. He, however, admitted that he has given an application for second marriage. Exh.D.l is copy of notice and Exh.D.2 is his application. He also admitted that he has not paid the dower up to this time and also admitted that his wife has filed a suit for the recovery of dower. P.W.2 is Nazir Ahmad the uncle of the plaintiff in a suit for restitution of conjugal rights. He,stated that the spouses are living separately for a period of more than 1‑1/2 years from the date of his evidence. The defendant's parents took her from the house of her husband and are not allowing her to live with her husband. In cross‑examination he admitted that he does not know the date or month when the defendant respondent went from the house of her husband. He also admitted that his wife committed suicide. He refuted all the allegations. D.W.1 is Shaukat Ali. He stated that the defendant respondent is the wife of plaintiff Saghir Ahmad. They were married three years before. He has never paid maintenance to her. He used to beat her and expelled her from her house and the defendant came to her house crying at 11 O Clock in the morning and her state of mind was not good. She did not go to the house of her father because when her husband beats her the father takes her to the house of her husband. She came on Rickshaw and her fare was paid by him and she had nothing to pay for fare of Rickshaw. The plaintiff has not paid the Haq Mehr and has demanded T.V. etc. He admitted in cross -examination that the defendant wife is ready to live with her husband in a separate house and that she has not filed a suit for dissolution of marriage. D.W.2 is Suleman. He stated that he knows both the spouses and from the date of. Marriage the husband was demanding money from the wife's father and then conflict arose and while he was standing on a shop he saw defendant Rukhsana getting down from the Rickshaw crying that she is expelled from the house of her husband and her uncle paid the Rickshaw fare and that the husband has not, paid the Haq Mehr. D.W.3 Mst. Rukhsana Tabussum defendant appeared as her own witness and she stated on oath that she was married with her husband on 17‑4‑1992 and from the very first day conflict arose on demand of T.V. Jogging shoes, motorcycle, foom cooler etc. and he has not paid the Haq Mehr. She came on 18‑8‑1992 from the house of her husband. She was kicked by her mother‑in‑law and expelled from the house and she has filed a suit for the recovery of maintenance as well as Haq Mehr which has been decreed in her favour. The atmosphere of his house is not good and if she is given a separate house and paid her dower she will perform her matrimonial relationship. She was cross‑examined but nothing substantial came out from the cross e-xamination. The certified copy of the order of the Chairman Exh.D.4, copy of the decree, dated 22‑10‑1995 Exh.D.5, copy of the decree, dated 22‑10‑1995 Exh.D.6 were produced by her.

11. The crucial point in this case is whether a decree for restitution of conjugal rights is absolute one. The answer is that a decree for restitution of A conjugal rights is not an absolute decree. It is no longer enforced by Courts of Justice although the decree may be passed. It is only a good answer to an application for maintenance under section 488 of the Criminal Procedure Code. Reliance is placed on Ma Hta v. Aye Maung AIR 1931 Rang. 111(1).

12. I have perused the judgments and decrees of the Courts below. The learned Courts below based their findings on the relevant issue of maintenance on the score that the prompt dower has not been paid to the wife by the husband, therefore, she could live apart from her husband.

13. Learned counsel for the petitioner has emphasized that a wife, who is not willing to perform her matrimonial relationship, although a decree for restitution of conjugal rights has been passed against her, can no longer demand the maintenance. I am not convinced by this argument of the learned counsel for the petitioner. Section 293 of the Mahomedan Law as reproduced below is a good answer to the contention raised by the learned counsel for the petitioner. Section 293 provides that if the husband sues a wife for restitution of conjugal rights before sexual intercourse takes place, non‑payment of the dower is a 8 complete defence to the suit, and the suit will be dismissed. If the suit is brought after sexual intercourse has taken place with her free consent the proper decree passed is not a decree of dismissal but a decree for restitution conditional on payment of prompt dower. Section 295 of the same explains that a dower is a k debt upon husband. After valid retirement the wife can demand the dower and if the dower is not paid she becomes entitle to live apart from her husband till her dower is paid and the husband is bound to pay her maintenance even though she is living apart from him without any other reasonable cause. Reliance is placed on Rahilan v. Sana Ullah PLD 1959 (W.P.) Lah. 470.

14. Learned counsel for the petitioner husband has relied on Khurshid v. Attiya Nigar and others 1990 CLC 297 where it is held that wife is entitled to recover maintenance allowance from husband provided she has not refused to live with him without any sufficient cause. The sufficient reason in this case is the non‑payment of the prompt dower on demand. The learned counsel for the husband wife has attracted the attention of this Court that up to this time even the maintenance allowance granted by the learned Family Court and the dower amount already decreed has not been paid to the wife and she has a valid reason to refuse to live with her husband and can claim maintenance. He has also placed reliance on Master Majeed v. Mst. Mulmah and 2 others 1992 CLC 13 (Quetta), where it is held that filing of a suit by wife itself was a clear expression of such demand and husband, therefore, had no jurisdiction to refuse or deny the same and that the wife's right to get prompt dower from husband cannot be defeated on the ground of not living with her husband or performing marital obligations such right is independent of any such condition and cannot be restricted or controlled by the factum of living together. He has further placed reliance on Mst. Rahim Jan v. Muhammad PLD 1955 Lah. 122 where it is held that wife can refuse to live with her if dower is not paid to her on demand and in a case of restitution of conjugal rights the husband has to pay the dower if he wants restitution of conjugal rights.

15. The suit for the recovery of dower was instituted on 29‑9‑1994. It was decreed in favour of wife on 22‑10‑1995. No appeal was filed against the same and up to this time it is not paid to the wife. The wife filed a suit for maintenance on 29‑9‑1994 which was decreed on 22‑10‑1995 ‑which was affirmed on appeal on 19‑11‑1997 and the learned Courts below have rightly allowed maintenance to the wife as the prompt dower is not paid to the wife although the demand is made through filing a suit for the same. The concurrent finding made by the learned Courts below do not warrant any interference by this Court in the exercise of the writ jurisdiction.

16. In view of what has been stated above the Writ Petition No.691 of 1998 D captioned as Saghir Ahmad v. Rukhsana Tabassum is hereby dismissed. As the concurrent finding arrived at ‑by both the learned Courts below have rightly allowed her maintenance of Rs.1,000.

17. Writ Petition No.3279 of 1998 captioned as Rukhsana Tabassum v. Saghir Ahmad for enhancement of the maintenance allowance is also dismissed as the Courts below have kept in view the means of the husband and has rightly refused enhancement in the maintenance allowance.

18. As discussed above the learned Courts below have not applied their mind while granting a decree for restitution of conjugal rights that there was a valid retirement of the spouses and the wife through filing a suit for the recovery of dower had already made a demand, therefore, the restitution of conjugal rights could only be a conditional decree on the payment of the prompt dower. The dower has not been paid up to this time. There is no appeal against the said judgment and decree passed by the learned trial Court. Therefore, the judgment and decree, dated 6‑2‑1996 passed by the learned Family Court in suit for F restitution of conjugal rights and that of dated 19‑11‑1997 passed by the learned Additional District Judge in appeal affirming the same, suffer from legal infirmity. Hence, the writ petition is accepted and both the judgments and decrees are set aside. No order as to cost. Q.M.H./M.A.K./R‑84/L Order accordingly