PLJ 2013 Lahore
399
[Rawalpindi Bench Rawalpindi]
[Rawalpindi Bench Rawalpindi]
Present: Ali Baqar Najafi, J.
MUHAMMAD SHIRAZ--Appellant
versus
LEARNED ADJ,
GUJJAR KHAN, etc.--Respondents
W.P. No. 4734 of
2010, heard on 24.5.2013.
Constitution of Pakistan,
1973--
----Art.
199--Muslim Family Courts Act, 1964, S. 5--Transfer of Property Act, S.
130--Clause 17 of Nikah Nama--Past
maintenance allowance--Suit for restitution of conjugal rights and suit for
recovery of maintenance allowance--Implementation of clauses 17 & 20 of Nikah Nama--Judgment and decree
to extent of gold ornaments and recovery was challenged--Validity--In presence
of decree for restitution of conjugal rights, condition of payment on desertion
does not become operative--Clause 17 of Nikah Nama imposing such condition does not come within ambit of
S. 130 of Transfer of Property Act as actionable claim--Petition was partly
allowed to extent of imposition of condition of clause 17 and claim under
Clause 20 of Nikah Nama and
dismissed to extent of maintenance granted to wife for carrying marriage bond
intact, since decree for restitution of conjugal rights, had already become
final. [Pp. 401 & 402] A &
C
Maintenance
Allowance--
----Payment of
past maintenance to wife--As long as wife carries name of husband, she was
entitled to at least some acknowledgement in form of maintenance by husband. [P. 402] B
2003
SD 350 & 2002 CLC 1450, ref.
Raja Saghir-ur-Rehman, Advocate for Petitioner.
Mr. S. Mansoor Hussain Bukhari, Advocate for Respondents No. 3 & 4.
Date of hearing:
24.5.2013.
Judgment
Through this
constitutional petition, the petitioner seeks setting aside of the judgment and
decree passed by the learned Additional District Judge, Gujjar
Khan, whereby Respondent No. 3 was granted past maintenance allowance at the
rate of Rs. 2000/- per month and 10-Tolas of gold ornaments on the basis of
clause-17 of Nikah Nama.
2. The brief facts giving rise to filing of the
present petition are that the petitioner filed a suit for restitution of
conjugal rights against Respondent No. 3 who, in turn, also filed a suit for
recovery of maintenance allowance and for implementation of clauses-17 and 20
of the Nikah Nama, besides
the maintenance of Respondent No. 4. Both the suits were consolidated and
issues were framed out of the divergent pleadings of the parties. The
documentary as well as oral evidence was led by both the parties, whereafter the learned Judge Family Court passed the
judgment and decree dated 30.1.2010, whereby Respondent No. 3 was granted past
maintenance allowance at the rate of Rs.2000/- per month from October, 2009
till decision of the suit whereas Respondent No. 4 was granted maintenance
allowance at the rate of Rs.2000/- per month with 10% annually increase from
December, 2009 till she married or custody is shifted. However, the suit for
restitution of conjugal rights was also decreed in favour
of the petitioner subject to the condition that petitioner would pay past
maintenance for the purpose of marital obligations in future. However, the gold
ornaments and, Rs.50,000/ were not granted to the said
respondent. Respondent No. 3 and petitioner challenged the said judgment and
decree to the extent of gold ornaments and recovery of Rs. 50,000/- which was
granted by the learned Additional District Judge, Gujjar
Khan. Hence, this writ petition.
3. The learned counsel for the petitioner
submits that the grant of past and future maintenance to Respondent No. 3 is
against law and facts; that Respondent No. 3 is leading a deserted life of her
own and without any justification and, therefore, is not entitled to any
maintenance, especially in the presence of decree for restitution of conjugal
rights; that Respondent No. 3 herself admitted in the plaint that on the next
day of marriage 7-Tolas of gold ornaments in the form of bangles were taken
back by the petitioner and thereafter there is no evidence of snatching away
the other gold ornaments; that the learned Additional District Judge passed his
judgment on surmises and conjectures and has also committed illegality; that
the judgment of the learned Additional District Judge is arbitrary, capricious
and in variation of the judgment and decree passed by the learned Judge Family
Court; that an exaggerated quantum of maintenance was granted by the appellate
Court and prays for setting aside of the said judgment. Places reliance upon
the cases of Sakina Bibi v.
Muhammad Latif, etc. [2003 S.D. 350], Arshad Ali v. Additional District Judge, Vehari and others [2002 CLC 1450], Muhammad Akram v. Mst. Hajra
Bibi and two others [PLD 2007 Lahore 515] and Syed Mukhtar Hussain
Shah v. Mst. Saba Imtiaz
and other [PLD 2011 S.C. 260].
4. Conversely, the learned counsel for the
respondents submits that the petitioner has admitted in Paragraph No. 3 of the
written statement that although Respondent No. 3 brought 10-Tolas of gold
ornaments but had taken it back at the time when she accompanied her father;
that in Paragraph No. 5 of the plaint of the suit for restitution of conjugal
rights, the petitioner admitted that on 7.10.2009, Respondent No. 3 went to her
parents by taking the said gold ornaments, leaving ten months' old daughter,
which is not appealing to reason; that Respondent No. 3 had to file a habeas
corpus petition to get the minor suckling baby; that in her statement,
Respondent No. 3 categorically stated that the said gold ornaments were
snatched by the petitioner; that conduct of the petitioner led Respondent No. 3
to file a suit for maintenance and recovery of 10-Tolas of gold ornaments and
prays for dismissal of this writ petition.
5. I have heard the learned counsel for the
parties and perused the available record.
6. In paragraph No. 6 of the plaint of the suit
for recovery of maintenance and for implementation of clause-17 of the Nikah Nama, Respondent No. 3 has
admitted that on the next date of the marriage, the petitioner has already
taken 7-Tolas of gold bangles with a promise that he would purchase gold
articles of equal weight for Respondent No. 3 in future but he could not do so.
In the written statement to the suit for restitution of conjugal rights,
Respondent No. 3 in Paragraph No. 4 stated that she was beaten and expelled by
the petitioner on 5.10.2009 without the gold ornaments. She could not prove
either through her pleadings or in her statement that apart from the said
bangles, she had any other gold ornaments. On the other hand, her plea that
vide clause-17 of the Nikah Nama
she was to retain 10-Tolas of gold ornaments were the same which, according to
her, were given to her on the eve of marriage by the petitioner and were taken
on the following morning. Admittedly, they were not purchased by the
petitioner. Meaning thereby that they were not in her use
since the wedding night. Under clause-20 of the Nikah
Nama, the maintenance at the rate of Rs.2000/ per
month and Rs.50,000/- were the conditions imposed
which were made applicable only on the desertion by Respondent No. 3. Any such
condition does not come within the category of Item No. 9 of the schedule under
section 5 of the Muslim Family Courts Act, 1964. Moreover this condition was
also required to be mentioned on a document before writing under the clause-20.
7. Admittedly, the stand of the petitioner is
that he is willing to take the respondent back and will abide by all reasonable
conditions imposed by Respondent No. 3 were not reciprocated her. In the
presence of decree for restitution of conjugal rights, the condition of payment
of Rs.50,000/- on desertion does not become operative.
Moreover, clause-17 of the Nikah Nama
imposing such condition does not come within the ambit of
Section 130 of
Transfer of Property
Act as actionable claim. Reliance is placed upon the case of Syed Mukhtar Hussain
Shah vs. Mst. Saba Imtiaz
(PLD 2011 SC 260)
8. As far as payment of maintenance to the wife
is concerned, suffice it to say that as long as wife carries the name of the
husband, she is entitled to at least some acknowledgement in the form of
maintenance by the husband. After all, in this case, Respondent No. 3 is
bringing up Respondent No. 4, the minor who is his daughter. I, therefore,
respectfully disagree with the judgments of Single Judge of this Court reported
as Sakina Bibi v. Muhammad Latif. etc. [2003 S.D. 350], Arshad
Ali v. Additional District Judge, Vehari and others
[2002 CLC 1450].
9. For the foregoing reasons, this writ petition
is partly allowed to the extent of imposition of condition of clause-17 and
claim under clause-20 of the Nikah Nama and dismissed to the extent of maintenance granted to
Respondent No. 3 for carrying the marriage bond intact, since the decree for
restitution of conjugal rights has already become final.
(R.A.) Petition
allowed
