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Writ Petitions Nos. 335 and 336 of 1984, decided on 18th May, 1985.

(a) Muslim Family Laws Ordinance (VIII of 1961)--

---Ss. 9 & 10.--.West Pakistan Family Courts Act (XXXV of 1964) , S. 5 Sched---Dower---Maintenance--- Prompt dower Non-payment of --- Maintenance of wife--Wife could refuse herself to husband and live separate from him Until prompt dower was paid by husband to her- During such separation, husband, held, w s duty bound to maintain wife.

Tahira Begum's case P L D 1971 Lah. 866 rel.

Gul Nawaz Khan's case P L D 1965 Dacca 274 distinguished.

Mohammadan Law by Sir Ronald Knyvet ref.

(b) Muslim Family Laws Ordinance (VIII of 1961)--

---Ss. 9 & 10--West Pakistan Family Courts Act (XXXV of 1964), S.5-- Sched.--Constitution of Pakistan (1973), Art. 199--Dower---Main tenance--Prompt dower--Non-payment of -Consequences--Jurisdiction of Court- Appellate Court maintained that prompt dower was admittedly unpaid to wife--Appellate Court, however, unti1ted to note essential legal implications of non-payment of dower that wife in such circumstances was under no obligation to live with husband and husband was duty bound to maintain wife during period of separation anti also failing to consider non-maintenance of wife for over 2 years--Omission of Court below to consider such facts, held, constituted nun-exercise of its jurisdiction Judgment of appellate Court declared without lawful authority in circumstances with result that all three appeals were to be deemed to be still pending before Appellate Court for fresh decisions.

M. Kowkab Iqbal for Petitioner.

Raja Muhammad Ibrahim Satti for Respondents.

Date of hearing: 18th May, 1985.

In these two Writ Petitions Nos. 335 and 336 of 1984, it is prayed that the judgment of Additional District Judge, dated 18-3-1984 be declared without lawful authority. This order shall dispose of both the petitions as they arise out of the same judgment.

2. Briefly the relevant facts are that the petitioner Mst. Chanani Begum and the respondent Muhammad Rafique who are cousins inter se were married to each other on 20-7--1978 in accordance with Muhammadan rites, on prompt dower of Rs.5,000. The spouses lived amicably till March, 1981, whereafter disputes arose between them and the petitioner shifted to her parents' house and instituted two separate suits one for the recovery of prompt dower and maintenance allowance and the other for dissolution of marriage on the grounds of cruelty non-payment of maintenance, misappropriation of her ornaments by the respondent besides his associating with women of ill repute. The respondent resisted these suits and also filed a suit for restitution of conjugal rights. 'He pleaded that the petitioner had left his house in the company of her mother on 3-3-1981 in his absence and took away all the ornaments and clothes belonging to him and despite repeated efforts on his part she refused to live with him without any justification. Regarding dower he pleaded that the petitioner by executing document Exh. Pa had since relinquished her claim to dower. All the three suits were consolidated by the trial Judge who framed and tried the following issues:-

(1) is the plaintiff entitled to the decree for restitution of conjugal rights

(2) is the defendant entitled to the dower amount and the maintenance allowance If so, at what rate and since when

(3) Has the defendant relinquished the prompt dower and maintenance

(4) Has the plaintiff maltreated the defendant

(5) Does the plaintiff associate with women of ill repute

(6) Has the plaintiff misappropriated the ornaments of the defendant

(7) Has the plaintiff failed to provide maintenance to the defendant for more than two years

(8) Relief.

The learned Judge family Court on elaborate analysis of the evidence on record decided issues Nos. 2 and 3 to 7 against the petitioner and consequently dismissed both of her suits but finding issue No. 1 in the affirmative decreed respondent; suit for restitution of conjugal rights, vide consolidated judgment dated 24-9-1983. Feeling aggrieved the petitioner filed three separate appeals in the Court of Additional District Family s judge petitioner who while affirming findings of Family Judge on issue No.1 and 4 to 7 reversed the same on issue No. 3 and partly decided issue No.2 in favour of the petitioner saying that the petitioner was entitled to recover a sum of Rs.5,000 from the respondent as her prompt dower but she was not entitled to the maintenance allowance for she had bean living separate from the respondent/husband without sufficient cause. The respondent did not agitate against this decision but the petitioner feeling still aggrieved invoked Constitutional jurisdiction of this Court. In Writ Petition No. 335/84 she has challenged the dismissal of her suit for dissolution of marriage and the decree passed against her in respondent's suit for restitution of conjugal rights andin Writ Petition No. 336 of 1984 she has challenged the findings of the Courts below holding her .to be disentitled to the maintenance allowance.

3. It is argued on behalf of the petitioner that according to the finding of Additional District Judge the respondent had not paid prompt dower of the petitioner, Therefore, it follows that the petitioner (wife) under the law could refuse to live with the respondent till such time the dower money was paid and that for such period she could also claim maintenance. Further, argued that admittedly the respondent (husband) herein did not maintain the petitioner for two years, therefore, learned Additional District Judge while decreeing petitioner's suit for recovery of dower money must have also granted decree for dissolution of marriage and that by having denied to grant such a decree to the petitioner learned Additional District Judge has failed to exercise jurisdiction vested in him. In support of his contention lie relied on Tahira Begum's case P L D 1971 Lah. 866 (D . B .) . Learned counsel further referred to Gul Nawaz Khan's case P L D 1965 Dacca 274 and urged that even on the ground of non-payment of prompt dower the petitioner wits entitled to decree of dissolution; of marriage. On the other hand, learned counsel for the respondent submitted that non -maintenance of the petitioner (wife) on his part cannot form a legal ground for dissolution of marriage particularly because the respondent was under genuine impression that she had relinquished her claim to dower under document Exh. P. 1 which has been found by the learned trial Court to be genuinely executed by the petitioner, therefore, his failure to maintain the petitioner cannot be taken as wilful and consequently the marriage cannot tie dissolved on this ground. Learned counsel has submitted that. the respondent is even today prepared to pay up the prompt dower and is ready to maintain her provided she agrees to live with him.

4. In the Dacca case relied upon by the learned counsel the spouses had mutually agreed and executed a Kabinnama to the effect that if the husband failed to pay prompt duwer and maintenance then the wife would be entitled to decree of dissolution of marriage by wad of Talak-e -Tafweez. In the instant case no such agreement exists between the parties so: this precedent is of no avail to the petitioner.

5. It is true that wife cannot claim maintenance if she lives separate from her husband without any justification but it is equally well recognized that a wife can refuse herself to the husband and also live A separate from him until the prompt dower is paid by the husband and that during such separation the husband is duty bound to maintain her. A reference may be made with advantage to section 48 of Muhammadan Law by Sir Ronald Knyvet which reads as under:-

"Section 48.--In addition to her right to recover the prompt dower by regular suit, the wife may refuse to admit her husband to sexual intercourse, to obey his orders, or even to live in the same house with him, so long as it is unpaid; and this without forfeiting any right to be maintained at his expense, or her right of inheritance as his wife. But it seems to be now settled that a suit for restitution is maintainable in case of refusal after sexual intercourse has once taken place with her free consent, but the decree may be made conditional on payment of the prompt dower."

In Tahira Begum's case (supra) a Division Bench of this Court, on this point observed as under.

..In Muslim Law it is the duty of the husband to maintain his wife. She is not entitled to maintenance when she refused to go to her husband's house without sufficient cause or is otherwise disobedient. However, if the refusal or disobedience is justified by non-payment of prompt dower or she leaves the husband's house on account of his cruelty, the husband is not absolved of the duty to maintain the wife because separate maintenance can be claimed by the wife when the husband has turned her out or the treatment or misunderstanding between them is such that it is irremediable and her return to the husband's house is likely to give rise to fresh troubles and disputes.

The learned appellate Court which has held that prompt dower of the petitioner is still unpaid seems to have omitted to notice its essential legal implications as pointed out in foregoing paragraph that the petitioner in the circumstances was under no obligation to live with the husband and yet the husband (respondent) was duty bound to maintain her. Thus, it could be held that the petitioner was living apart from the husband without justification, hence not entitled to any maintenance. In this perspective, learned Additional District Judge was required consider the finding of the trial Judge on issue No. 7 pertaining non-maintenance of the petitioner for over 2 years, which has not been done and certainly constituted non-exercise of jurisdiction by learned Additional District Judge. Consequently, I declare the impugned judgment as without lawful authority, with the result that all the three appeals of the petitioner would be deemed to be still pending before Additional District Judge, Rawalpindi, who shall make fresh decision in the light of above observations.

H. B. T.

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