' Brief facts of the instant petition are that the petitioner filed a suit for maintenance allowance to the tune of Rs,2000 per month on the ground that the Nikah was performed during minority in exchange (Watta Satta), Rukhasati did not take, place, she kept waiting for her Rukhsati by the defendant while the defendant without permission remarried and now the petitioner has reached the age of 40 years and she still sitting as legally wedded wife of the respondent and threatened the petitioner that he will keep her sitting and waiting all the life like this and will not restitute the matrimonial relationship and also will not maintain her. This suit was resisted by the defendant through filing written statement. Following issues were formulated on divergent pleadings of the parties:-- Issues.
(1) Whether the plaintiff is entitled to the decree of maintenance allowance if so at what rate and for what period? OPP
(2) Whether the plaintiff has cause of action to file this suit? OPP
(3) Whether the instant suit .Is liable to dismissal due to nonRukhasati of the plaintiff? OPD
(4) Whether the instant suit is false, frivolous and based on mala fide if so its effect ? OPD
(5) Relief.
2. The parties produced their evidence and learned Judge Family Court vide judgment and decree dated 3-10-2001 decreed the suit in favour of the petitioner in the sum of Rs,1000 per month from the date of her marriage till the persistence of her marriage. Being aggrieved, the respondent No,1 filed appeal before the learned District Judge, Mianwali. Learned District Judge accepted the appeal vide his judgment and decree dated 18-3-2002 and reversed the judgment and decree passed by learned Judge Family Court, hence, instant writ petition.
3. Arguments advanced by learned counsel for the petitioner is that the learned Appellate Court has failed to apply judicial mind while evaluating the evidence on record and erred in reversing the judgment and decree of learned Judge Family Court Mianwali, although it was proved by the statement of respondent No,1 that the petitioner remained in his Nikah and never paid any maintenance allowance to her. Plaintiff gave her statement that she does not want to get divorce.
She wants maintenance, therefore, petitioner never instituted a suit for dissolution of marriage and is still in Nikah of respondent No,1 and is entitled to get maintenance allowance from the respondent.
4. Learned counsel for the respondent submits that Nikah of the plaintiff was in exchange of the marriage. Respondent was making all efforts that the petitioner's parents should give Rukhsati to him but all his efforts ended in failure and consequently he remarried. The petitioner in the trial Court gave statement that even if the respondent maintained her she will not live with the respondent and is not entitled to maintenance allowance.
5. I have heard the learned counsel for the parties and perused the evidence on record as well as the impugned judgment.
6. The plaintiff appeared as,P.W.1 and stated that her Nikah was performed with the respondent during the minority and respondent has remarried without her consent and she has become major 20 years but Rukhsati has not taken place as the defendant was not prepared to take her in his wedlock and restitute the matrimonial relationship. The respondent has means and he could have maintained her. In cross-examination she stated that she does not want to take divorce she wants maintenance and at the time of recording of evidence she was 40 years. Her life is ruined. However, she stated that even if the defendant gives past maintenance she will not be ready to live with him.
She produced P.W.2 who stated that the marriage was solemnized during minority. The parents of the petitioner were ready that the defendant should take Rukhsati of plaintiff but the defendant was not ready and he has good sound financial sources.
7. D.W.1 appeared as his own witness and stated that his marriage was solemnized in exchange (Watta Satta) against his brother. Mst. Bibi Khatoon filed a suit for dissolution of marriage which was decreed on 20-7-2000 and being aggrieved from this judgment she (petitioner) has filed this suit. He admitted in cross-examination that he has not maintained the plaintiff.
8. Learned Judge Family Court decided issues Nos.1 and 2 in favour of plaintiff and issues Nos.2 to 4 not pressed regarding cause of action and dismissal of suit due to non-Rukhsati and decreed the suit of plaintiff to the extent of Rs,1000 per month as maintenance allowance from the date of her marriage till marriage/Nikah between the parties subsists. The learned Appellate Court while observing that marriage being Watta Satta marriage there was no eventuality living with respondent and wife can only be given maintenance when she lives with husband. The plaintiff has stated that she is not willing to live with her husband even if he is maintaining. This statement disentitles her to claim maintenance. Thus the learned Appellate Court reversed the judgment of learned trial Court.
9. From the perusal of the evidence it was admitted that the plaintiff was married during her minority. She being present in this Court again reiterated that she does not want to take divorce from the respondent as she is of 40 years age and she is willing to remain in the wedlock of the respondent for the rest of her life. The marriage solemnized during minority is not registered. It is also established in evidence that the defendant has not made any effort to restitute his conjugal rights. The evidence discloses that bad blood was existing between the parties as the exchange marriage ended into divorce on the other side. Therefore no eventuality existed that the plaintiff could go and live with defendant. Moreover it is admitted fact that defendant remarried without consent of the plaintiff. These circumstances show that plaintiff had sound reasons not to live with the defendant. The judgment of learned Appellate Court on this score is entirely erroneous on the points of facts and law. It is also admitted by the defendant that he did not maintain the plaintiff and also did make effort to join her as his wife. He married her when she was young minor girl and as such ruined her life as she at present is woman of forty years of age waiting for her husband. In presence of all these admitted facts the learned Appellate Court in hasty judgment without reading evidence on record and without giving any issue-wise finding as required by law reversed the finding of learned Judge Family Court. Such a judgment beyond the evidence on record suffers from legal infirmity; therefore, it is hereby set aside.
10. As far as the judgment of learned Judge Family Court is concerned, no one can claim past maintenance allowance beyond the period of six years and as far as the rate of maintenance of Rs,1000 is concerned, it is modified to Rs,500 per month for a period of six years from the date of institution of the suit for recovery of maintenance allowance and at the rate of Rs,1000 per month in future from the date of decision of the suit till the subsistence of the marriage.
11. Instant petition is decided accordingly.