P L D 1993 Lahore 358 (PLP)

Mst. Shaista Altaf wife of Muhammad Ihsan petitioner riled a suit for recovery of dower amount of Rs. 40,000 against the petitioner. She also filed a suit for payment of maintenance for her two minor children namely Miss Aneela, a minor daughter and Muhammad Imran, a minor son, who according to the petitioner are aged 11 and 12 years respectively. Both the suits were contested and on the basis of the pleadings of the parties, following issues were settled:-- (1) Whether the suit is not maintainable? (2) Whether the plaintiff is estopped to bring this suit? (3) Whether the defendant has paid the dower money to the plaintiff? (4) Whether the plaintiff Shaista Altaf and her daughter Ancela are entitled to recover the maintenance allowance from the defendant, if so, for what period and what rate? (5) Relief. Learned trial Court decreed both the suits vide judgment and decree dated 30-1-1992. The minors . were granted maintenance at the rate of Rs.500 p.m. per child w.e.f. the institution of the suit till further orders whereas the suit for payment of dower was also decreed. Both the judgments and decree rendered by the Court below were challenged in appeal, by the petitioner which have been dismissed. However, the maintenance allowance of the children was reduced from Rs. 500 p.m. to Rs.200 p.m. per child. The defen dant-petitioner has challenged the aforementioned judgment and decree through this Constitutional petition.

2. Mr. Muhammad Hanif Khan Niazi, Advocate has appeared on behalf of the petitioner and has 'argued that the decree for payment of dower amount of Rs.40,000 could not have been passed inasmuch as evidence of the witnesses produced by the petitioner has illegally been discarded on the ground that they are interested witnesses although there being no evidence of anmosity between the witnesses and respondent No. 3, it cannot be said that the witnesses were interested and therefore, the judgment and decree of the Courts below are erroneous in* law. Learned counsel has further contended that during previous litigation there was a compromise to the effect that the parties shall not reagitate their dispute in any Court, therefore, the dower, amount shall be deemed to have been relinquished ' as the same is permissible under section 291 of Mulla's Mahomedan Law as well as Verse No. 4 of Surah Nisa. As regards payment of maintenance to the minors, learned counsel for the petitioner. has contended that as the petitioner has filed proceedings for restoration of custody of the minors before the Family Court/Guardian Judge, the minors were not entitled to the payment of maintenance and further that it is not the petitioner who is negligent for payment of the amount, therefore, no decree for payment of the maintenance can be passed in favour of the minors. Learned counsel further contended that in the issues framed by the learned trial Court only one child has been mentioned, therefore, the maintenance could not be granted for the minor son. In support of his contentions reliance is placed on case of Mst. Hamida Begurn v. Syed Mashaf Hussain Shah PLD 1958 SC (Pak.) 284, Muhammad Aslarn v. Family Judge and 2 others 1987 CLC 247 and Syed Musbaf Hussain Shah v. Mst. Hamida Begurn PLD 1957 Lah. 220. 3. 1 have considered the arguments addressed by the learned counsel and have gone through the record. The Courts below have concurrently held after scanning of whole evidence that the petitioner is liable to pay the amount of dower of Rs.' 40,

000. His plea was that he has already paid the amount. The evidence produced by the petitioner has been disbelieved by both the Courts below. This is writ petition. In Constitutional petition, this Court is not competent to enter into re-approisal of evidence, therefore, in absence of misreading/non-reading of evidence concurrent findings of fact rendered by the Courts below to the effect that the petitioner is liable to pay the dower amount of Rs. 40,000 cannot be interfered with in exercise of the Constitutional jurisdiction of this Court. Argument of the learned counsel for the petitioner to the effect that in the previous litigation there was a compromise to the effect that the parties will not agitate their dispute in Courts of law does not debar the respondent to rile proceedings for recovery of dower as well as payment of maintenance for her minor children as the cause of action is recurring and no lawful contract can be entered into whereby the parties may be said to be debarred from approaching the Court of law. Even otherwise, it appears that previously too a dispute arose regarding payment of dower and maintenance allowance, but the parties compromised and thereafter again a dispute has arisen and as such the present suits have been filed on fresh cause of action. There is nothing in the previous proceedings from which it could be inferred that the petitioner has relinquished her dower amount. There is no cavil with this proposition that the wife is competent to relinquish her right to recover dower as is clear from section 291 of Mulla's Mahomedan La w as well as from Verse of Surah Nisa, which are reproduced k; as under:-- Section 291, "The wife may remit the dower or. any part thereof in favour of the husband or his heirs. Such a remission is valid though made without consideration." Verse No.4 of Surah Nisa. However, the principle is not relevant in this case, inasmuch as, there is absolutely no evidence of relinquishment of right to recover dower by the respondent. Consequently, the judgment and decree by the two Courts below are unexceptionable and cannot be interfered with in this Constitutional petition, and the same cannot be said to be without a lawful authority.

4. Regarding payment of maintenance of the minor children, arguments of the learned counsel for the petitioner are also misconceived. The parties understood the controversy. Maintenance has been claimed for both the children. Evidence has also been led relating to both the minors, therefore, no prejudice is proved to have been caused to the petitioner if the name of one child is not mentioned in the issue which was never sought to be amended by either of the parties to the lis. Merely because the petitioner has filed custody proceedings before the learned Guardian Judge is not a ground to refuse payment of maintenance to the minors. The judgments referred to by the learned counsel are distinguishable on facts, and therefore, are not of any help to him. The guardianship proceedings have been initiated simultaneously to the proceedings for maintenance and therefore, it cannot be said to be bona fide. At any rate, the minors are admittedly children of the petitioner and it is rather immoral on his part to deny payment of even a petty amount of Rs.200 p.m, per child. No interference is, -therefore, called for in exercise of the discretionary writ jurisdiction -of this Court in the order regarding payment of maintenance as well. Resultantly, I see no force in this writ petition, the same is dismissed in limine. AA/M-933/L petition dismissed