Restitution of Conjugal Rights Decree

PLJ 2013 Lahore 399
[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 NikahNama 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], MuhammadAkram 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