' HAFIZ ABDUL REHMAN ANSARI, J.--- Through this writ petition, the petitioner seeks setting aside of judgment and decree dated 21-1-2010 passed by learned Additional District Judge, D.G. Khan who decreed the suit of the plaintiff / respondent No,3, Jewan daughter of Saino.
2. Brief facts of the case are that respondent No,3 contracted marriage with petitioner. Respondent No,3 performed marital obligations for more than 20 years but unfortunately, no issue was born.
Respondent No,3 filed a suit for recovery of maintenance allowance alleging therein that the petitioner contracted two marriages and from his last spouse, issues were born to him. The defendant/petitioner started misbehaving her after his 3rd marriage and at last about 6/7 years ago, he ousted her from his house and now she is residing with her brothers and the defendant/petitioner never provided any maintenance allowance during this period. It was disclosed to her few days ago that the petitioner has got alienated her property in his name. She claimed that as she is legally wedded wife, therefore, she is entitled to Rs,1000 P.M. For her maintenance allowance. Petitioner also filed suit for restitution of conjugal rights against respondent No,3 narrating therein that respondent No,3 lived with him till November, 2008.
Respondent No,3 went to attend marriage ceremony of her close relatives, then, her brother restrained her to go to her husband. Upon instigation of the brother of respondent No,3, she filed a suit for property which she had alienated to the petitioner 20 years ago. In the suit for restitution of conjugal rights petitioner appeared as P.W.1 and got recorded his statement and respondent No,3 got recorded her statement.
3. Both the suits were consolidated and from the divergent pleadings of the parties following consolidated issues were framed:--
(1) Whether the plaintiff is entitled to the decree for maintenance allowance on the basis of averments made in her plaint? OPP.
(2) Whether the plaintiff has no cause of action to file the instant suit? OPD.
(2-A) Whether the defendant is entitled to the decree for restitution of conjugal rights as prayed for? OPP.
(3) Relief.
4. Mst. Jewan Mai, plaintiff herself appeared as P.W.1 and produced Atta Muhammad as P.W.2. Allah Wasaya defendant appeared as D.W.1 and produced Ijaz Hussain as D.W.3. In the suit for restitution of conjugal rights Allah Wasaya defendant appeared as P.W.1 but his statement will be treated as D.W.1 because both the suits were consolidated. Learned Judge Family Court, D.G. Khan vide judgment and decree dated 17-11-2009 dismissed both the suits of respondent No,3. Respondent No,3 assailed the judgment and decree passed by learned Judge Family Court on 24-12-2009 by filing an appeal before the District Judge, D.G. Khan. Appeal was accepted of the respondent No,3 and maintenance allowance was fixed at the rate of Rs,1000 per month from the date of institution of the suit till the subsistence of marriage with annual increase of 10 per cent per annum with costs and the impugned judgment and decree dated 17-11-2009 passed by the learned trial Court/learned Judge Family Court. It is pertinent to mention here Allah Wasaya present petitioner did not file appeal against the judgment and decree of the learned Judge Family Court as his suit for restitution of conjugal rights was dismissed.
5. Learned counsel for petitioner contends that respondent No,3 is a disobedient lady. She has refused to perform her marital obligation she herself left the house of the petitioner without the consent of the petitioner she is not entitled to any maintenance allowance further contends that petitioner is ready for reunion with the respondent and is ready to provide maintenance allowance within her means with the condition if she is returned to the house of the petitioner and perform matrimonial obligation; further submits that judgment and decree as well as orders of the Courts below are based merely on conjectures and surmises and supposition; that the Courts below have failed to exercise his jurisdiction as vested in them under section 13(5) of West Pakistan Family Courts Act, 1964; learned trial Court fixed the maintenance for plaintiff respondent is exorbitant beyond the means of the petitioner; petitioner is also maintaining his other two wives and children; that findings of the Courts below on issues decided against the petitioner are based on misreading and non-reading of evidence; learned counsel places reliance on Ahmed Ali v. Sabha Khatun Bibi and others PLD 1952 Dacca 385 and Majida Khatun Bibi v. Paghalu Muhammad PLD 1963 Dacca 583.
6. I have heard the learned counsel for the petitioner and perused the record.
7. The petitioner did not file an appeal against the judgment and decree dated 17-11-2009 by which suit of the plaintiff / petitioner for conjugal rights was dismissed by the Judge Family Court.
Judgment and decree dated 17-11-2009 dismissing suit for conjugal rights was appealable before the learned District Judge which the petitioner had not availed how in this writ jurisdiction that can he assail now how the petitioner can ask for setting aside the judgment and decree of the learned Judge Family Court with regard to suit for restitution of conjugal rights filed by the present petitioner against respondent No,3 to that extent judgment and decree of the learned trial Court has attained finality as the petitioner has not availed the remedy provided under section 14 of Family Courts Act, 1964, so, to this extent writ petition is not maintainable.
8. As far as the maintenance allowance allowed by the learned lower Appellate Court is concerned, learned lower Appellate Court in its judgment dated 21-1-2010 has held that respondent went to the house of her brother on the marriage of her niece about 6-months back from his house.
Respondent No,3 had filed a suit for declaration against the petitioner in respect of land measuring 2 Kanals 5 Marlas against him but it is not in his knowledge that the said land was gifted out by the respondent to him. The respondent left the house of her husband on the marriage of her niece but the respondent/her husband did not participate in the marriage ceremony which shows that at that time there existed rift between the spouses. Admittedly, respondent had filed a suit for declaration against her husband in respect of land measuring 2 Kanals 5 Marlas which stand alienated in the name of petitioner but the respondent alleged that the said land was gifted out by the respondent to him. It is also an admitted fact that the petitioner had contracted third marriage and due to that relations became strained between the spouses and he has children from his third wife whereas the appellant who is elder in age to the respondent and is also issueless. It is bounden duty of the husband to maintain his wife, the respondent is residing separately with reasonable cause because a dispute in respect of land measuring 2 Kanals 5 Marlas existed and litigation in this respect is also pending adjudication before the Civil Court. In the circumstances, the suit of the respondent / plaintiff Mst. Jevan Mai for recovery of maintenance allowance was decreed at the rate of Rs,1000 per month from the date of institution of the suit till the subsistence of marriage with annual increase of 10 per cent per annum with costs and the impugned judgment and decree dated 17-11-2009 passed by the learned trial Court / Judge Family Court was rightly set aside by the learned Additional District Judge. When he is maintaining two other wives he should also arrange the maintenance and separate residence for respondent No,3. Learned lower appellate Court has rightly decreed the suit of respondent No,3. The cause of strained relation is the polygamy of the petitioner which created differences between the petitioner and respondent No,3.
9. Resultantly, this writ petition has no force and the same is hereby dismissed in limine.