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Writ Petition No.1918 of 1984, heard on 8th June, 1985.

---Art.9--Dissolution of Muslim Marriages Act (VIII of 1939), 5.2(ix).- Suits for dissolution of marriage and maintenance .by wife against husband--Suit for dissolution decreed on basis of Khula while suit, for maintenance dismissed by trial Court--Wife's appeal against dismissal of her suit for maintenance allowed by First Appellate Court--First Appellate Court not discussing evidence adduced by husband while accepting appeal of wife--Impugned judgment setting aside judgment of trial Court without attending to or considering evidence on record and particularly of petitioner's/husband's evidence--Held, impugned judgment could not be sustained in law and same would have to beset aside--Case remanded to be disposed of afresh in accordance with law after considering all relevant material on record and directed same to be heard by another Judge.

Ch. Abdul Hamid for Petitioner.

M. Wasim Sajjad for Respondent No. 3.

Date of hearing: 8th June, 1985.

This petition under Article 9 of the Provisional Constitution Order is directed against the judgment of the Additional District Judge, Sargodha, dated 17-1-1984 whereby he accepted the appeal of Mst. Amir Khatoon respondent No.l and awarded her maintenance allowance at the rate of Rs.500 per month.

2. Facts necessary for the disposal of this petition, briefly stated, are that Mst. Amir Khatoon respondent No.l brought three suits against the petitioner, one for dissolution of her marriage, other for recovery of dower amount of Rs.20,000 and the third claiming maintenance. Petitioner contested these suits and also filed a suit for restitution of conjugal rights. All the suits were consolidated and heard together. As many as 10 issues were framed covering the entire controversy between the parties. Issue which is relevant for the purpose of the present petition is as follows:--

"IX-A. Whether the plaintiff is entitled to maintenance allowance If so, at what rate and for what period."

3. After recording the evidence of the parties learned Judge, Family' Court decreed the respondent's suit for dissolution of marriage on. the ground, inter alia, of Khula' with the observation that "in consideration of Khula' she will not be entitled to recover any maintenance from the defendant." Consequently, respondent's suit for recovery of maintenance was dismissed with the following finding on issue No.IX-A, afore- referred :-

"Since I have not allowed maintenance to the plaintiff, in consideration of Khula, this issue need not be discussed. This is accordingly decided against the plaintiff."

4. Respondent No.l preferred an appeal against the dismissal of her suit for maintenance. Learned Additional District Judge by his impugned judgment accepted the appeal holding that respondent No.l was entitled to the maintenance allowance, claimed by her "including the period she was not maintained by the respondent before the institution of tile suit i.e. 30-7-1980.

5. I have heard the learned counsel for the parties. Learned counsel appearing for the petitioner has contended that the learned Additional District Judge has allowed maintenance to respondent No.l simply with reference to an agreement Exh.P. 1 and without considering other relevant evidence on the record. According to the learned counsel, agreement Exh.P.1 did not impose absolute and unqualified obligation on the petitioner to pay maintenance to respondent No.l. He has further contended that before awarding maintenance to the respondent, petitioner's liability to maintain her should have been determined with reference to and on consideration of the entire evidence on the record and particularly the evidence led by the petitioner to the effect that respondent was not entitle to claim maintenance. Precise grievance of the learned counsel is that the learned Additional District Judge has totally ignored the petitioner's evidence. Learned counsel appearing for the respondent No.l has not been able to meet these contentions. Perusal of the impugned judgment also lends support to the contention of the learned counsel for the petitioner in so far as the learned; Additional District Judge has evidently not discussed the evidence' adduced by the petitioner. He has not even adverted to that evidence muchless considered it. Thus, the impugned judgment having set aside: the judgment of the trial Court without attending to and considering, the evidence on record and particularly the petitioner's evidence cannot be sustained in law and the same shall have to be set aside.

Upshot of the above-discussion is that writ petition is allowed, impugned judgment of the learned Additional District Judge is declared to be without lawful authority. Result, therefore. is that the appeal of respondent No.l shall be disposed of afresh in accordance with law and after considering all the relevant material on the record. It is, therefore, directed that the learned District Judge shall either hear, and decide the appeal himself or entrust it for disposal to an Additional District Judge other than Mr. Muhammad Anwar Nasim, Additional District Judge Who had earlier passed the impugned judgment. There shall be no order as to costs in the circumstances of the case.

A . A .

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