1988 PLP 222 (MLD)

Date of hearing: 27th January, 1988. In this Constitution Petition the petitioner has challenged the legality of the judgment of the learned 1st Additional Sessions Judge (South), Karachi, dated 30‑8‑1986.

2. The admitted facts appear to be, that the petitioner and the respondent No. 3 are legally‑wedded husband and wife, but soon after marriage differences crept upon between them and they started living separately. Respondent No.3 Mst. Naheed Akhtar filed Family Suit No.1084 of 1982 for the recovery of the dower amount of Rs.25,

000. She also filed a Family Suit No.1086 of 1982 for the recovery of maintenance to the tune of Rs.29,

000. The petitioner filed Family Suit No.2026 of 1986 for restitution of his conjugal rights. The learned Family Court dismissed the Suit No.1084 of 1982, and Suit No.2026 of 1982, which were for dower and conjugal rights, but allowed and decreed the suit of the respondent No. 3 for maintenance. Two Family Appeals were filed by the petitioner against the dismissal of his suit for conjugal rights and against the decree of maintenance passed against him, which appeals were disposed of by the learned 1st Additional Sessions Judge (South), Karachi, vide the impugned judgment. It will be noteworthy to reproduce the operative part of the impugned judgment. "Under these circumstances it will be requirement of law as well as natural justice to provide them a chance to live together. I, therefore, deem it fit to allow the suit for restitution of conjugal rights filed by the husband. Dismissal of the suit for restitution of conjugal rights is set aside. It is ordered that the appellant should provide separate house to the respondent within the period of three months from the day of this order and redress the rest of the demands of the respondent as described in para. 12 of written statement of Suit No.2026 of 1982. In case relations between the parties are normalized and they started residing together, the maintenance claimed by the wife will be unwarranted in the eye of law. But in case appellant fails to provide separate house to the respondent and provide her other facilities as claimed in para.12 of the written statement, the decree in suit for maintenance passed by the learned trial Court will remain intact."

3. From reading of this operative portion of the judgment it will be clear, that both the suits have been decreed conditionally and condition precedent in both suits is that the petitioner was to provide a separate house and also redress the rest of the demands of the respondent as described in para.12 of the written statement of Suit No.2026 of 1982. These demands are six in number, which are also reproduced in this judgment. Two of these demands will be relevant for the purpose of the decision of this petition, which may be reproduced as under:‑ "(3) The plaintiff to bring back all the articles of Jahaiz and ornaments held back by him and his parents to the new house. (4) The plaintiff to pay the dower amount of Rs.25,000 to the defendant or at any rate assure its payment at any future demand by the defendant by resorting its payment irrespective of her demand by way of Suit No.1084 of 1982 to start fresh period of limitation by any fresh future demand."

4. It is submitted by Mr. Farooque Naik, learned counsel for the petitioner, that suit for dower has been dismissed by the Family Court against which no appeal is preferred. The imposing of condition No.4, as reproduced above, would in fact amount to decreeing the suit of dower, which has already been dismissed. He further submits, that condition No.3 relates to the recovery of dowry, for which separate suit has been filed by respondent No.3, which is still pending. It is submitted, that imposing this condition would amount to decision of a pending suit without trial. These factual positions are not disputed by Mr. Khalique Humayoun, the learned counsel for the respondent No.3.

5. I have already reproduced the operative part of the impugned judgment. However, it is not specially clear as to whether these two conditions are also included in the demands which are ordered by the learned Additional Sessions Judge, to be redressed by the petitioner. Therefore, by consent the case is remanded back to the 1st Additional Sessions Judge (South), Karachi, Mr. Syed Pir Ali Shah, who after hearing the parties, is to clarify as to what demands are to be redressed by the petitioner and pass decree accordingly. Petition stands disposed of in the above terms, with no orders as to costs. H.B.T./G‑73/K??????????? Order accordingly.