2016 PLP 932 (CLC)

MRS. SYEDA TAHIRA SAFDAR, J.

The petitioner Parveen Khan unsatisfied with the judgment dated 19th December 2014 of Additional District Judge-II, Quetta, whereby the appeal filed by respondent No.1 against the judgment of the trial court dated 23rd September 2014, was allowed, and the order was altered to the extent of the relief of the maintenance allowed to the petitioner.

2. The papers in the case file were with the facts that the petitioner filed a suit for recovery of dower amount, dowry articles, and maintenance allowance for herself, and for her minor daughter. She claimed to be treated with cruelty by her husband Abdul Ghafoor (respondent No. 1). While she and the minor daughter were neglected, and never maintained by him (respondent No. 1). She claimed maintenance for herself at the rate of Rs.3000/- (Rupees three thousand) per month, and for the minor daughter at the rate of Rs.5000/- (Rupees five thousand) per month. She further claimed the Haq Mehr which was agreed to be Rs.50,000/- (Rupees fifty thousand), but till date remained unpaid. The return of dowry articles, as per the list attached with the plaint was also included in the reliefs claimed.

3. The defendant (respondent No.1) appeared, and contested the suit. He filed his written statement, and denied the allegation of maltreatment. It was contended that the appellant (petitioner) herself left his house, thus her act disentitled her for the maintenance. He showed his ignorance about birth of the minor girl, as not intimated by the petitioner. In addition he disclosed to have already pronounced Talaq to the petitioner, thus she was not entitled for any maintenance. According to him he paid the dower of Rs.50,000/- in shape of gold ornaments at the night of the marriage. While as far dowry was concerned, though he denied the annexed list, but stated that only two cupboards were left behind by the plaintiff (petitioner), while he was ready to handover the articles contained in the cupboards, which were left locked by the petitioner.

4. The issues arising out of the pleadings of the parties were framed on 27th November, 2013. The parties produced their respective evidence. The trial court vide judgment dated 23rd September 2014 allowed the suit in the terms: "Suit of the plaintiff is disposed of partially decreed as follows:

1. Plaint already had received dower amount Rs.50,000/-

2. The plaintiff is entitled for maintenance from August, 2010 and on wards till divorce 18/7/12 and three months of Iddat periods at the rate of Rs.3000/- per month.

3. The plaintiff is entitled for the maintenance allowance of minor daughter Tehreem from the date of her birth January 2011 and on wards till her date of marriage at the rate of Rs.3000/- per month with enhancement of 5% per annum.

4. The defendant had returned the dowry articles of plaintiff through Civil Nazir of the court lying in his possession and plaintiff had not proved as per her list of dowry articles and gold were given at the time of marriage and same were lying in possession of defendant."

5. The petitioner opted not to appeal against the judgment, while respondent No.1 (Abdul Ghafoor) not satisfied thus filed an appeal. The appellate court vide judgment dated 19th December, 2014 partly allowed the appeal, thereby modified the judgment of the Family Court only to the extent of maintenance allowed to the petitioner. She was held not entitled for the past maintenance from August, 2010 till the date of Talaq i.e. 18th July 2012. Rather, the maintenance for the period of Iddat at the rate of Rs.3000/- per month was determined for her.

6. The petitioner was unsatisfied with the judgment thus before this court, while contending that there was misexercise of jurisdiction on part of the appellate court. The evidence was not properly appreciated, rather ignored; resultantly the conclusion drawn was not in consonance with the facts of the case, thus needed reappraisal of the material on the record.

7. The learned counsel for the parties made their submissions. The learned counsel for the petitioner pressed existence of an agreement between the parties on basis whereof the petitioner was entitled for the maintenance from the date when she was turned out of the house by respondent No.1.

8. The learned counsel for respondent No. 1 was of the view that a wife could only be entitled for the maintenance as determined by Rule 277 of the Principles of Muhammadan Law. He further stated that the agreement was conditional as rightly noted by the appellate court, thus committed no illegality.

9. Though the suit was for recovery of dower amount, dowry articles and maintenance, both for wife and daughter. While the relief was allowed only to the extent of maintenance of wife and child, the remaining reliefs were refused as not proved. While the order of the trial court was questioned before the appellate court only to the extent of the maintenance awarded to the petitioner by respondent No.1, and the order and decree were altered to the same extent. Thus, without going into further merit of the case the legality of the order of the appellate court is to be assessed only to the extent of the maintenance allowed to the petitioner.

10. The petitioner claimed maintenance with reference to the agreement dated 17th April 2007 executed between the parties at the time of Marriage. The Nikah Nama available in the case file failed to mention existence of any document executed for the purpose of payment of dower or maintenance at item No.20 of the Nikah Nama. Despite the fact execution of this agreement was not denied by respondent No.1. A copy of the agreement placed before the court duly marked. Term No.5 of the agreement was relevant to determine the issue in hand. It was to the effect:

11. Rule 277 of the Principles of Muhammadan Law contained the requirements, if fulfilled, make a wife entitled to be maintained by her husband. It reads as under:

277. Husband's duty to maintain his wife.

The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse,) so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt (S. 290) dower, or she leaves the husband's house on account of his cruelty. Rule 278 of the Principles of Muhammadan Law is an addition thereto:

278. Order of maintenance.

If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, 1898, section 488, in which case the Court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees." The wife has to establish her entitlement for recovery of maintenance on the stated principles. In case in hand she not only claimed past maintenance, but also maintenance for the period of Iddat. To establish her claim of past maintenance she placed reliance on the agreement dated 17th April, 2007. The relevant term reproduced in the preceding para. Thus in view thereof she was entitled for the maintenance at the rate of Rs.3000/- per month. This entitlement was subject to the condition that she was turned out of the house by respondent No.1. The burden was on the petitioner to establish that she was turned out of the house by respondent No.1. If she succeeded she would be entitled for the maintenance at the agreed rate.

12. The courts, trial and appellate, considered the evidence and were with the same decision that the petitioner failed to establish that respondent No.1 turned her out of his house as alleged or even maltreated her. The trial court though concluded that the fact was not established, but for the reasons that she was admittedly residing apart from the respondent No.1 from August 2010 till announcement of Talaq, and the respondent No. 1 (husband) did not file any suit for restitution of conjugal rights, nor made any efforts for reconciliation. In addition thereto with reference to the Personal Law ( ) that a husband is bound to maintain his wife during existence of Marriage, allowed the relief to the extent of the petitioner for the questioned period. It was an error as the trial court overlooked the remaining part of the principle. While the appellate court dealt with the issue, and rightly held that the petitioner failed to establish that she left the house of her husband due to his cruel conduct, to make her entitled for the maintenance in the agreed terms.

13. Thus in view of the narrated facts the benefit arising of the referred term of the agreement could not be extended to the petitioner, as she failed to discharge the burden on her. The appellate court was with the right decision to allow the maintenance allowance only for the Iddat period at the rate of Rs.3000/- per month. No error was committed by the appellate court, which is to be corrected by this court in exercise of its constitutional jurisdiction. The petition failed for the mentioned reason, thus dismissed. ZC/16/Bal. Petition dismissed.