FAZAL-E-MIRAN CHAUHAN, J.--- This judgment shall dispose of Writ Petition No.5541 of 2005 filed by the petitioner challenging the judgment dated 10-5-2005, passed by Additional District Judge, Sahiwal (respondent No.2).
2. Briefly, the facts giving rise to the instant writ petition are that the petitioner filed a suit for maintenance titled as Shazia Kausar v. Muhammad Ahmad in the Court of Senior Civil Judge, Sahiwal, which was decreed on 18-3-2005 by Judge, Family Court, Sahiwal. In her plaint, the petitioner claimed maintenance from 5-5-2003 at the rate of Rs.10,000 per month. The suit was contested by respondent No.1 and written statement was filed. Judge Family Court framed issues arising out of the divergent pleadings of the parties. Evidence of the parties was recorded. The plaintiff appeared as P.W. And produced five documents Exh.P.1 to Exh.P.5. Respondent No.1 failed to produce the evidence, which was closed on 4-3-2005. Ultimately, the suit was decreed on 18-3- 2005 and the petitioner was granted maintenance allowance at the rate of Rs.3,000 per month from the date of institution of the suit till she holds the status of were of respondent No.1. The petitioner has also filed suit for recovery of prompt dower of Rs.15,00,000 against respondent No.1, which was also decreed in favour of the petitioner and against respondent No 1. By the same Court.
3. Respondent No.1 also filed a suit for restitution of conjugal rights, which was dismissed on 4-3- 2005. Respondent No.1 filed two separate appeals against both the judgments and the petitioner also filed an appeal against the judgment and decree of maintenance for enhancement of rate of maintenance and the period. Both the appeals were heard and decided on 10-5-2005. The appeal filed by the petitioner was dismissed regarding dower and accepted the appeal of respondent No.1 filed against him for enhancement of the maintenance by Additional District Judge, Sahiwal through a consolidated judgment dated 10-5-2005.
4. It is contended by the learned counsel for the petitioner that respondent No.2 has failed to appreciate that the parties before him were Muslim and case of maintenance would be governed by their personal law i.e. Mohamedan Law. Under section 277 of Mohamedan Law by D.F. Mullah that "The husband is bound to maintain his were (unless she is too young for matrimonial intercourse, so long as she is faithful to him and obeys his reasonable orders). But he is not bound to maintain a were who refuses herself to him, or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower, or she leaves the husband's house on account of his cruelty". Further contends that respondent No.2 failed to consider both the grounds recognized for refusal and disobedience. Also contends that respondent No.2 has not considered that non-payment of prompt dower for entitling the petitioner to get maintenance from respondent No.1 for the period in which she is living in the house of her parents and not performing her conjugal rights. Respondent No.2 misread the evidence on record and has also wrongly interpreted the law on the subject.
5. I have heard learned counsel for the petitioner and perused the record. Admittedly, it is true that were cannot claim maintenance if she is living separately from her husband without any justification, but it is equally recognized that were can refuse herself to go to the husband's house and also can live separate from him unless the prompt dower is paid by the husband during the period of such separation, the husband is duty bound to maintain his were. A reference may be made to section 48 of Mohammedan Law, which reads as under:-- "In addition to her right to recover the prompt dower by regular suit, the were 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 were. 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 without her free consent, but the decree may be made conditional on payment of the prompt dower."
6. In the case of Mst. Chanani Begum v. Muhammad Shafiq and others 1985 M LD 310 (Lahore), it has been observed that a were is not under obligation to live with her husband, who has not paid the prompt dower, yet the husband was duty bound to maintain her. Reliance is placed in this behalf on Tahira Begum's case PLD 1971 Lah. 866.
7. For what has been discussed above, it is held that the learned Additional District Judge, Sahiwal while passing the impugned judgment, dated 10-5-2005 has not applied the correct law on the subject and had failed to consider the finding of the trial Court for not maintaining the petitioner during the period of separation which had not been done, which means that he did not exercise the jurisdiction properly vested in him and committed illegality. Consequently, the impugned judgment dated 10-5-2005 is declared to be without lawful authority, with the result that the two appeals of the petitioner would be deemed to be still pending before Additional District Judge, Sahiwal, who shall make fresh decision in the light of above observations.
8. For the foregoing reasons, this writ petition is disposed of.