2011 PLP 1012 (MLD)

SAGHEER AHMAD QADRI, J.

Respondent No.3/Mst. Rashida daughter of Qadir Ahmad Khan filed suit for recovery of past and future maintenance allowance @ Rs.8,000 per month, recovery of dowry articles as well as recovery of dower on 21-8-2009 mentioning the facts that she was married with petitioner-defendant on 15-3-2001 and she resided with him; that subsequently petitioner-defendant went abroad and did not provide her maintenance allowance for the last about 4 years. Suit was resisted by the petitioner-defendant through his Attorney/ brother Naeem Ahmad Khan/DW-2, who filed written statement controverting the factual as well as legal aspects of the suit filed by respondent No. 3.

2. Learned trial court framed issues. Issue No.1 whether the plaintiff is entitled to recovery maintenance allowance, from the defendant, @ Rs.8,000 per month for the last four years and for future at the same rate, was framed in respect of the controversy about the maintenance allowance as sought by the respondent. This issue after recording the evidence was decided by learned trial Court vide judgment and decree dated 22-7-2010 in favour of respondent No.3 and a decree was passed for recovery of maintenance allowance @ Rs.8,000 w.e.f 21-7-2005 till the expiry of period of Iddat as immediately after filing the suit for dissolution of marriage petitioner-defendant divorced her. Petitioner-defendant filed an appeal and vide impugned judgment and decree dated 24-11-2010 learned appellate Court/respondent No.1 upheld the judgment and decree passed by learned trial Court on Issue No.1 i.e. the provision of maintenance allowance to respondent No.3. Feeling aggrieved petitioner-defendant has preferred this writ petition only to challenge the controversy about the maintenance allowance.

3. Learned counsel for the petitioner argued that according to Muhammadan Law a wife only can claim maintenance allowance after divorce for the period of "Iddat"; that past maintenance allowance only can be granted for a period of three years, that petitioner produced overwhelming evidence including the bank account record showing that petitioner had been paying the maintenance allowance to respondent No.3. In this respect learned counsel referred Annexure-H a letter sent by the Deputy Superintendent, GPO, Layyah to respondent No. 3 showing the status of her account maintained in the post office. On the basis of said letter it was argued that it shows that petitioner had been paying maintenance allowance' to respondent No.

3. However, it was pointed out by learned counsel for the petitioner that this letter/statement of account could not be brought on record during the trial as well as at appellate level. It was further argued that a disobedient wife like respondent No.3 is not entitled to recover maintenance allowance under Muhammadan Law; that there was no evidence available on record before the learned trial Court as well as Appellate Court to calculate for the fixation of Rs.8,000 per month as maintenance allowance for respondent No.3; that both the learned courts below did not appreciate the evidence rather their findings are result of misreading and non-reading of evidence available on record. Prayed that this writ petition be admitted for regular hearing.

4. I have considered the arguments addressed by learned counsel for the petitioner at limine stage and have gone through the record.

5. Petitioner has challenged findings of learned trial as well as appellate courts passed on Issue No. 1 relating to the provisions of maintenance allowance to respondent No.3. Respondent No. 3 Rashida herself appeared as P. W.1 and she examined Pervaiz Ahmad son of Nazir Ahmad Khan as P.W.2. On the other hand, mother of the petitioner-defendant Mst. Hameeda Khatoon appeared as DW-1 while his real brother Naeem Ahmad Khan appeared as DW-2 as his attorney. Learned trial court as well as appellate Court has discussed evidence of both sides while deciding Issue No. 1 in favour of respondent No.

3. If the statement of DW-1 is seen, she herself has admitted that petitioner-defendant was earning Rs.80,000 to Rs.85,000 per month while working at Portugal. Admittedly, through out the period of this marriage petitioner-defendant remained apart and it is admitted that he left behind respondent No. 3 in the year 2005 and during that period only twice he visited Pakistan. Learned trial as well as appellate Court have thrashed out all these factual aspects and passed findings on Issue No. 1 against the petitioner whereby respondent No. 3 was provided maintenance allowance @ Rs.8,000 period for a period of past four years since filing the suit as well as future maintenance allowance till the expiry of Iddat period. There is no justification brought on record nor argued to unsettle these factual controversies while exercising extra ordinary writ jurisdiction by this Court at this stage. The document referred as Annexure-H with the writ petition was never produced before the learned trial Court nor appellate Court and even otherwise it is a letter sent to respondent No. 3 by the Post Office concerned whereby her status of account was informed and this document itself is not sufficient to prove if any maintenance allowance was ever provided by the petitioner to respondent No. 3 and what was the source of that account, therefore, this argument is also of no avail to the petitioner.

6. As far as the argument raised by learned counsel for the petitioner that as maintenance allowance in this case has been provided by the learned trial Court for a period of last 4 years and it can only be claimed for a period not more than three years, this arguments is also of no avail. Admittedly, no period of limitation is provided under the Limitation Act for filing of a suit for maintenance allowance and in that eventuality Article 120 of Limitation Act is applicable, which provides six years limitation for filing of any suit wherein for filing of any suit no limitation is provided. Reference can be seen 1990 CLC 934 (Muhammad Aslam v. Zainab Bibi and 3 others), PLD 1993 Lahore 810 (Syed Mudassar Altaf v. Deputy Commissioner/Collector Lahore) and PLD 1972 Supreme Court 302 (Muhammad Nawaz v. Khursheed Begum and 3 others). For what has been discussed above, this writ petition being without any merit is hereby dismissed. A.R.K./R-10/L Petition dismissed.