' GHULAM MOHY-UD-DIN MALIK, J.--- Aggrieved by the judgments and decrees of learned subordinate Courts respecting decree for maintenance allowance and return of dowry articles, petitioners have filed this writ petition against the respondent.
2. The learned counsel for the petitioners contended that the suit of respondent for recovery of dowry articles or in alternative price thereof and suit for maintenance allowance was wrongly and illegally decided in favour of respondent without taking into consideration the evidence and all the attending facts and circumstances of the case. Further he contended that Mst. Farhat Jan was summoned repeatedly as Court-witness by the learned Judge, Family Court but she did not appear and instead of using coercive method for procuring her attendance she was abandoned.
Further contended that there was evidence to believe that the dowry articles were returned to the respondent and that she had left the house of the petitioner without any lawful excuse and thus in these circumstances neither decree for recovery of dowry articles nor for maintenance allowance was justifiable.
3. We have perused the available record and found that no doubt vide Order-sheet No,27 dated 13th October, 2003 the summoned C.W. Mst. Farhat Jan was reported to have gone for performance of Umra and counsel for respondent was directed to inform the Court as and when she returned him. Besides the available record shows that the learned trial Judge did all his best to procure her attendance but she could not be traced out nor her correct address was furnished by the petitioners for service. The Court of its own tri d to serve her on given address, at a place of her definite abode as well as at her temporary deposit but all the time notices/summonses were returned as un-served with the report that she was not available there. So in these circumstances, there was left no other alternative remedy except to abandon her and decide the, case on the evidence already recorded. Actually the evidence on record was good enough to decide the disputed issues pertaining to maintenance allowance and the recovery of dowry articles. The list of dowry articles Exh.P.W.4/1 has been proved to be correct list of articles which were given to the respondent by her parents at the time of marriage. The statement of attorney of respondent, statement of C.W.1 Mst. Rabeha Haroon mother of respondent and statement of C.W.2 Muhammad Shamhoon brother of respondent go in line with regard to matter of dowry articles that these were delivered at the time of marriage and were never returned back after her desertion. So this being the factual position proved on the strength of evidence, there is left no room to doubt the claim of respondent.
4. With regard to the maintenance allowance admittedly she was living in desertion. The amount of maintenance allowance in case of desertion was agreed upon between the parties at the time of marriage but he failed to honour his undertaking and started litigation on whimsical and flimsy grounds. The conduct of petitioner that he had contracted and divorced other wives as well and the life of the respondent during the existence of matrimonial tie was made miserable can be inferred from the parties evidence. So it appears that under the compelling circumstances she had left the house of petitioner and started living with her parents wherein she was not provided any maintenance allowance. The husband's obligation to maintenance of wife commences from the moment wife surrenders herself to the command and desire of her husband, i,e,, affords him the right of consortium. However, it becomes a demandable debt when she is living in desertion due to his cruel or unbecoming conduct. In this case he has become debtor because there was decided by mutual consent that in case of unpleasant circumstances, he would provide her separate maintenance.
5. In these circumstances, the decree passed by the learned trial Court and upheld by the Appellate Court against the petitioner seems to be well-founded, based on proper reasoning and correct exposition of law which cannot be interfered with in exercise of constitutional jurisdiction.
6. Before parting with the instant judgment we may observe that there is a separate Writ Petition No,121 of 2009 filed by the petitioner against the judgment and decree of learned subordinate Court as to grant of dower decree.
7. It is undisputed fact on the record that at the time of marriage between the parties, land measuring 5 Kanals was given by the petitioner to Mst. Sobia Mehreen respondent in dower.
According to columns Nos.13 to 16 of Nikahnama dated 22-3-2000 Exh.P.W.1/1 in lieu of dower the above said property was given to her and to this effect Mutation No,5563 was attested by the petitioner in favour of respondent. The petitioner could not lead any confidence inspiring evidence to prove that the entry in the Nikahnama was false, fake or fictitious. Similarly, he could not prove that his signatures were forged on the Nikahnama. So in these circumstances, she is entitled to receive dower from the husband in consideration of marriage. All Sunni Schools of Law agreed that the dower is one of the condition of validity of marriage. There are about six verses in the Qur'an which refer to the dower. They are : 2: 229; 4; 24, 4; 20; 4, 25; 5: 5 and 60: 10, stating that the dower is a condition for the validity of an Islamic Marriage. The crux of above is that she has proved fixation of her dower and non-payment and as such she is legally entitled to get the same, particularly after the divorce. So there is no reason to interfere into concurrent findings of both the learned subordinate Courts on factual as well as legal aspect of the case respecting the dower decree.
8. For the foregoing reasons both the above mentioned writ petitions being meritless stand dismissed.