2019 PLP 640 (YLR)

MUHAMMAD SAJID MEHMOOD SETHI, J.

This consolidated order shall dispose of instant writ petition along with following connected petition as common questions of law and facts are involved in these cases:-- W.P. No.194724 of 2018 titled Iftikhar Ahmad v. Additional District Judge, Lahore and others

2. Brief facts of the case are that petitioner filed a suit for recovery of maintenance allowance along with dower amount of Rs.300,000/-. Learned Judge Family Court, vide judgment and decree dated 10.01.2016, proceeded to partly decree the suit and petitioner was held entitled to recover maintenance allowance at the rate of Rs.4000/- per month with 10% annual enhancement from the date of institution of the suit till subsistence of her marriage, but subject to performance of her marital obligations within the conjugal domicile of her husband / respondent No.3, whereas her claim to the extent of dower amount was declined. Feeling aggrieved, both the parties preferred their respective appeals before learned lower Appellate Court, whereby vide judgment dated 08.11.2017, petitioner's appeal was partly allowed in the terms that she was held entitled to recover her maintenance allowance at the rate of Rs.4000/- per month with 10% annual increment from four months prior to the institution of suit till the operation of law, whereas her claim for recovery of dower amount was rejected until the marriage subsists between the parties. However, the appeal filed by respondent No.3 was dismissed. Through instant petition, petitioner seeks enhancement of her maintenance allowance and restoration of her dower amount. In connected petition, respondent No.3 has also assailed the afore-mentioned judgments and decrees, passed by learned Courts below with regard to award of maintenance allowance to petitioner, and sought dismissal of the suit.

3. Learned counsel for petitioner submits that impugned appellate judgment and decree is liable to be modified. He further submits that petitioner is entitled to enhancement of maintenance allowance proportionate to the status of respondent No.3, who is a man of means and can easily pay Rs.20,000/- per month as maintenance allowance. He further submits that after marriage, petitioner has become entitled to claim dower amount, however, same has been declined without any lawful justification. In support of his submissions, he has relied upon Ali Haider and 2 others v. Syed Muhammad Asghar Shah (2015 YLR 511), Dr. Sabira Sultana v. Maqsood Sulari, Additional District and Sessions Judge, Rawalpindi and 2 others (2000 CLC 1384), Muhammad Shabbir v. Rehana Kausar and others (PLD 2013 Lahore 102) and Mst. Sadia Bibi v. Additional District Judge and others (2013 MLD 247).

4. Conversely, learned counsel for respondent No.3 submits that impugned judgments and decrees to the extent of award of maintenance allowance, passed by learned Courts below, are based upon misreading and non-reading of evidence brought on record.

5. Arguments heard. Available record perused.

6. Perusal of record shows that respondent No.3 is a retired servant getting monthly pension of Rs.7000/-. Apart from that, he is owner of land measuring 08-Acres in addition to land measuring 03-Sarsais in Faqir Wali Sher Lahori Bazar. Respondent No.3 also owns some cattle. Learned Appellate Court, while dilating upon the issue of maintenance allowance, has taken into account above mentioned assets of respondent No.3 on the one hand, but on the other hand, also kept in view the fact that respondent No.3 has three wives, including the present petitioner, and he has to maintain all of them in order to meet their daily needs like food, clothes etc. Payment of maintenance allowance to the wife or children by a husband or father is governed by injunctions of Islam. The determination of issue with regard to maintenance allowance of petitioner, by learned lower Appellate Court, is quite reasonable and does not require interference by this Court. Learned Appellate Court has correctly analyzed this aspect of the matter. The relevant part of impugned appellate judgment dated 08.11.2017 is reproduced as under:-- "

19. Keeping in view the financial status of the appellant that he earns Rs.7000/- as pension while has also some other property, buffalos and cows, his income may be considered somewhere around Rs.20,000 to Rs.30,000/- per month. This is tentative assessment as there is no cogent evidence on this point, therefore, out of this, it will be enough if the appellant is provided Rs.4000/- per month as maintenance with 10% annual increment. The findings of learned trial court are partially modified in above terms while the remaining findings are maintained accord-ingly which are well reasoned."

7. So far as impugned appellate judgment to the extent of dower amount is concerned, perusal of column No.17 of Nikahnama shows that dower amount was only to be given to petitioner in case of divorce by respondent No.3, whereas marriage between the parties is still intact. The relevant findings of learned lower Appellate Court, with regard to the issue of dower amount, are as under:-- "

15. The appellant / plaintiff has admitted that so far there is no dissolution of marriage between the parties and that the dower amount mentioned in column No.17 has to be given to her. Perusal of copy of nikahnama in the file shows that the said amount was only to be given to the appellant in case of divorce by the respondent. Admittedly this is not the case and hence learned trial court has rightly denied this claim to the appellant."

8. Learned lower Appellate Court appreciated the entire evidence brought on record in its true perspective and rightly came to the conclusion with regard to maintenance allowance as well as dower. The decision of learned lower Appellate Court is based on valid lawful reasons covering all aspects of the lis. No misreading / non-reading of evidence or jurisdictional error was pointed out by either of the parties. Learned counsel for the parties have failed to point out any illegality or legal infirmity in the findings of learned lower Appellate Court, warranting interference of this Court in the exercise of its writ jurisdiction. The case law referred to by learned counsel for petitioner is distinguishable, thus, not applicable upon facts of instant case.

9. In view of the above, instant petition, along with connected petition, being devoid of any force, is hereby dismissed with no order as to costs. MQ/S-57/L Petitions dismissed.