2010 PLP 323 (MLD)

MS. JAMILA JAHANOOR ASLAM, J.

Background for filing of the instant writ petition is that petitioner No.1 was married to respondent No.3 according to Shariat-e-Muhammadi on 29-8-2001 against a dower of Rs.50,000 in shape of gold ornaments weighing about 2-1/2 tolas; Rukhsati took place on 21-9-2002; co-habitation remained for a very short time; the parents of respondent No.3 were needlessly strict with her so much so that she was not even allowed to speak to her parents on the phone; she was also subjected to physical and mental torture; despite the fact that she is a highly qualified lady, she, was subjected to living like a servant however, in order to save her matrimonial life she put up with all the atrocities and eventually gave birth to a daughter on 1-8-2003 namely Alizae Amar; the attitude of respondent No.3's family remained the same and they snatched the gold ornaments given to petitioner No.1 by her parents and also by respondent No.3 at the time of Nikah along with her original educational documents, CNIC, Passport etc. It is further alleged that respondent No.3 proceeded to Sharja and his monthly income was Rs.25,000; during his absence. Respondent No.3's family made her life miserable. It is maintained that having substantial income respondent No.3 is duty bound to provide maintenance to the petitioners thus they filed suit for recovery of the dower amount and maintenance claiming Rs.8000 and Rs.5000 per month respectively from 27-8-2004, dowry articles given to her at the time of Rukhsati and 6 golden bangles weighing 9 tolas being her property which were given to her by respondent No.3 as a gift and also for dissolution of marriage before the Judge Family Court Rawalpindi on 8-10-2004.

2. All the allegations were controverted by respondent No.3 maintaining that petitioner No.1 was not willing to reside in the marital bond. It was contended that respondent No.3 is still" ready to restore the conjugality and in case of petitioner No.1 refusing to continue the matrimonial bond, he is ready to divorce her, provided she returns the gold ornaments worth Rs.40,000 which were later on given to her. Return of certificates etc. was also agreed to. A suit for restitution of conjugal rights was also instituted by respondent No.3.

3. Suit for dissolution of marriage on the basis of Khula was decreed on the statement of the petitioner wherein she took a stand that she hated respondent No.. The suit for restitution of conjugal rights was dismissed and for the remaining controversy, the following issues were framed:-- (i) Whether the plaintiff No.1 is entitled for recovery of dowry articles as per schedule "A" annexed with the plaint or its value? OPP (ii) Whether the defendant is entitled to recover gold ornaments of Rs.40,000 from defendant? OPD (iii) Whether the plaintiff No.1 is entitled for the recovery of Rs.5,000 as maintenance per month with effect from 27-8-2004? OPP (iv) Whether the plaintiff No.1 is entitled for the recovery of personal property and belongings as per schedule "B"7 OPP No.1. (v) Relief?

4. At the conclusion of the evidence of both the parties, the suit of the petitioner No.1 for recovery of dowry articles was dismissed, the suit to the extent of recovery of Passport was decreed on 20-7-2006. Petitioner No.1 was held entitled to the maintenance of the Iddat period @ Rs.2000 per month and petitioner No.2 was held entitled to recovery monthly Rs.2,000 from the date of desertion i.e. 27-8-2004 till debarred legally.

5. Feeling aggrieved of the said judgment/decree insofar as the suit was dismissed, petitioners preferred an appeal and an appeal was also preferred by respondent No.3. Learned District Judge, Rawalpindi passed the judgment, dated 18-10-2007 and upheld the order of the learned trial Court on Issues Nos.1, 2 and

4. The observation on issue No.3 was altered and petitioner No.1 was allowed maintenance @ Rs.5,000 for the Iddat period only and the minor was allowed maintenance @ Rs.3,000 till she was legally debarred from claiming the same.

6. Being aggrieved of the judgment/decree passed by the District Judge, dated 18-10-2007 and also passed by learned Family Court, dated 20-7-2006 present writ petition has been filed by the petitioners on the grounds that facts have not been taken into consideration; there has been a gross misreading and non-reading of material available on record; the impugned judgments/decrees are based on conjectures and surmises and have been passed without application of judicious minds; the list of dowry articles was ignored in finding on issue No.1; the evidence of an interested witness was not observed properly; the findings by both the Courts below on issue No.1 are based on grave error; petitioner No.2 was granted maintenance from 27-8-2004 but petitioner No.1 was not granted maintenance from the same date; in spite of the evidence available on record regarding custody of gold ornaments with respondent No.3 both the Courts did not conclude properly as per law defined; since petitioner No.2 is of growing age and her life requirements are 'increasing but the increase of 20% per annum has not been allowed.

7. I have heard both the counsel and perused the record available with their able assistance and have come to the conclusion that both the Courts below have not erred on all the points. The only points that I modify are that maintenance of the minor should be subject to enhancement @ 10% per annum as children's needs grow with time. I also find it improper that enhancement of maintenance of minors is not addressed in many cases which results in further needless litigation between parties. It is imperative that the maintenance granted to the minors be enhanced on a yearly basis and this be made part of the final decision to curtail litigation. The other point of the petitioner that I agree with is that is the minor is considered abandoned from 15-8-2004 so should petitioner No.1. Respondent No.3 had not made any arrangements for calling the petitioners to Sharja where he resides and neither had he made separate arrangements for them in Pakistan. There is no law that requires the wife to stay with her in-laws in the absence of her husband. Even if petitioner No.1 left the marital abode of her own accord she was justified in doing so and she would be considered deserted. Therefore I modify the impugned judgments and decrees and hold that petitioner No.1 is also entitled to recover maintenance w.e.f. from 15-8-2001 till the Iddat period. Apart from this observation I decline to interfere in the findings of the Courts below. H.B.T./S-165/L Order accordingly.