P L D 2014 Lahore 154 (PLP)

ALI BAQAR NAJAFI, J.

Through this constitutional petition, the petitioner seeks setting aside of the judgment and decree passed by the learned Additional District Judge, Gujjar Khan, whereby respondent No.3 was granted past maintenance allowance at the rate of Rs.2000/- per month and 10-Tolas of gold ornaments on the basis of clause (17) of Nikahnama.

2. The brief facts giving rise to filing of the present petition are that the petitioner filed a suit for restitution of conjugal rights against respondent No. 3 who, in turn, also filed a suit for recovery of maintenance allowance and for implementation of clauses-17 and 20 of the Nikahnama, besides the maintenance of respondent No.

4. Both the suits were consolidated and issues were framed out of the divergent pleadings of the parties. The documentary as well as oral evidence was led by both the parties, where after the learned Judge Family Court passed the judgment and decree dated 30-1-2010, whereby respondent No.3 was granted past maintenance allowance at the rate of Rs.2000/- per month from October, 2009 till decision of the suit whereas respondent No.4 was granted maintenance allowance at the rate of Rs.2000/- per month with 10% annually increase from December, 2009 till she married or custody is shifted. However, the suit for restitution of conjugal rights was also decreed in favour of the petitioner subject to the condition that petitioner would pay past maintenance for the purpose of marital obligations in' future. However, the gold ornaments and Rs.50,000/- were not granted to the said respondent. Respondent No, 3 and petitioner challenged the said judgment and decree to the extent of gold ornaments and recovery of Rs.50,000/- which was granted by the learned Additional District Judge, Gujjar Khan. Hence, this writ petition.

3. The learned counsel for the petitioner submits that the grant of past and future maintenance to respondent No.3 is against law and facts; that respondent No.3 is leading a deserted life of her own and without any justification and, therefore, is not entitled to any maintenance, especially in the presence of decree for restitution of conjugal rights; that respondent No. 3 herself admitted in the plaint that on the next day of marriage 7-tolas as of gold ornaments in the form of bangles were taken back by the petitioner and thereafter there is no evidence of snatching away the other gold ornaments; that the learned Additional District Judge passed his judgment on surmises and conjectures and has also committed illegality; that the judgment of the learned Additional District Judge is arbitrary, capricious and in variation of the judgment and decree passed by the learned Judge Family Court; that an exaggerated quantum of maintenance was granted by the appellate court and prays for setting aside of the said judgment. Places reliance upon the cases of Sakina Bibi v. Muhammad Latif, etc. 2003 YLR 1006, Arshad Ali v. Additional District Judge, Vehari and others [2002 CLC 1450], Muhammad Akram v. Mst. Hajra Bibi and 2 others [PLD 20 7 Lahore 515] and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others [PLD 2011 SC 260].

4. Conversely, the learned counsel for the respondents submits that the petitioner has admitted in paragraph No. 3 of the written statement that although respondent No.3 brought 10-Tolas of gold ornaments but had taken it back at the time when she accompanied her father; that in paragraph No. 5 of the plaint of the suit for restitution of conjugal rights, the petitioner admitted that on 7-10-2009, respondent No.3 went to her parents by taking the said gold ornaments, leaving ten months old daughter, which is not appealing to reason; that respondent No.3 had to file a habeas corpus petition to get the minor suckling baby; that in her statement, respondent No. 3 categorically stated that the said gold ornaments were snatched by the petitioner; that conduct of the petitioner led respondent No.3 to file a suit for maintenance and recovery of 10-Tolas of gold ornaments and prays for dismissal of this writ petition.

5. I have heard the learned counsel for the parties and perused the available record.

6. In paragraph No. 6 of the plaint of the suit for recovery of maintenance and for implementation of clause-17 of the Nikahnama, respondent No. 3 has admitted that on the next date of the marriage, the petitioner has a1ready taken 7-Tolas of gold bangles with a promise that he would purchase gold articles of equal weight for respondent No. 3 in future but he could not do so. In the written statement to the suit for restitution of conjugal rights respondent No. 3 in paragraph No. 4 stated that she was beaten and expelled by the petitioner on 5-10-2009 without the gold ornaments. She could not prove either through her pleadings or in her statement that apart from the said bangles, she had any other gold ornaments. On the other hand, her plea that vide clause-17 of the Nikahnama she was to retain 10-Tolas of gold ornaments were the same which, according to her, were given to her on the eve of marriage by the petitioner and were taken on the following morning. Admittedly, they were not purchased by the respondent. Meaning thereby that they were not in her use since the wedding night. Under clause-20 of the Nikahnama, the maintenance at the rate of Rs.2000/- per month and Rs.50,000/- were the conditions imposed which were made applicable only on the desertion by respondent No.3. Any such condition does not come within the category of item No. 9 of the schedule under section 5 of the Muslim Family Courts Act, 1964. Moreover this condition was also required to be mentioned on a document before writing under the clause (20).

7. Admittedly, the stand of the petitioner is that he is willing to take the respondent back and will abide by all reasonable conditions imposed by respondent No. 3 were not reciprocated by her. In the presence of decree for restitution of conjugal rights, the condition of payment of Rs.50,000/- on desertion does not become operative. Moreover, clause (17) of the Nikahnama imposing such condition does not come within the ambit of section 130 of Transfer of Property Act as actionable claim. Reliance is placed upon the case of Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz PLD 2011 SC 260. 7A. As far as payment of maintenance to the wife is concerned, suffice it to say that as long as wife carries the name of husband, she is entitled to at least some acknowledgement in the form of maintenance by the husband. After all, in this case, respondent No. 3 is bringing up respondent No. 4, the minor who is his daughter. I, therefore, respectfully disagree with the judgments of Single Judge of this Court reported as Sakina Bibi v. Muhammad Latif etc. 2003 YLR 1006, Arshad Ali v. Additional District Judge, Vehari and others 2002 CLC 1450.

8. For the foregoing reasons, this writ petition is partly allowed to the extent of imposition of condition of clause-17 and claim under clause (20) of the Nikahnama and dismissed to the extent of maintenance granted to respondent No.3 for carrying the marriage bond intact, since the decree for restitution of conjugal rights has already become final. AG/M-222/L Petition partly allowed.