' RAJA SAEED AKRAM KHAN, J.---This appeal, with leave of the Court, has been filed against the judgment and decree passed by the Shariat Court on 26-6-2010, whereby appeal filed by the respondent was accepted and judgment and decree passed by the Judge Family Court, Sehnsa, on 21-12-2006 was set aside.
2. The brief facts of the case are that Mst. Iqra, appellant, herein, filed a suit for recovery of hospital expenses amounting to Rs.25,630 incurred on the birth of a child and maintenance allowance from 6-2-2005 in the Court of Judge Family Court/Civil Judge, Sehnsa on 12-6-2006. The trial Court; after necessary proceedings, decreed the suit to the tune of Rs.36,630. The respondent filed an appeal in the Shariat Court against the judgment and decree passed by the Judge Family Court on 21-12- 2006. A learned single Judge in the Shariat Court accepted the appeal, set aside the judgment and decree and dismissed the suit filed by the appellant. Hence this appeal by leave of the Court.
3. Raja Liaqat Ali Khan, the learned counsel for -the appellant, has contended that the judgment of the Shariat Court is against law and facts of the case and the Court failed to appreciate the evidence available on the record in its true perspective. The appellant succeeded to prove her claim of past maintenance with cogent and unrebutted evidence which has not been taken into consideration by the Shariat Court while accepting the appeal.
4. On the other hand, Mr. Muhammad Zubair. Raja, the learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the appellant and argued that the judgment and decree passed by the Shariat Court is perfectly in accordance with law. No illegality has been committed by the Shariat Court while-accepting the appeal. The appellant remained in the house of her father with her own choice, therefore, she was not entitled to any past maintenance. He further urged that she filed a suit on the same cause of action which was dismissed and she has not assailed that order before any Court, therefore, the decree has attained finality. She was not entitled to file present suit on the same cause of action.
5. We have heard the arguments and perused the record. Admittedly the marriage of the spouses was solemnized on 14-7-2004. After some time their relations became strained and the appellant was constrained io file a suit for dissolution of marriage which was decreed and the marriage was dissolved. Along with the suit for dissolution of the marriage, the appellant filed a suit for maintenance in which she had claimed maintenance allowance along with expenditure of Rs.25,630 incurred during the birth of a child in Kotli Hospital. The suit was contested by the respondent before the trial Court while submitting the written statement. Out of the pleading the trial court framed following issues:-- {{URDU TEXT}} ' In support of above issues, the appellant produced Afsardad, Imdad Hussain Shah, Kafayat Ali and Karamdad as her witnesses while she herself also appeared as a witness along with documentary evidence, Exh.PA, copy of Nikah nama', Exh.PB, receipt of hospital expenditures and Exh.PC, discharge slip. In rebuttal, the respondent produced Mahmood Khan and Safeer Ahmad as his witnesses while he also appeared as his own witness. After taking into consideration the evidence produced by the parties, the suit was decreed by the trial Court on 21-12-2006. An appeal was filed by the respondent before the Shariat Court against the aforesaid judgment and 'decree of the trial Court which was accepted vide impugned judgment and decree dated 26-6-2010 which has been assailed before this Court. While setting aside the judgment and decree of the trial Court, the Shariat Court observed as under:-- "I have given my due consideration to the arguments addressed at 'Bar and gone through the record. It is admitted between the parties that the respondent filed a suit for recovery of maintenance allowance and hospital expenses before Judge Family Court, Sehnsa on 20th September, 2005, which was dismissed vide its decision dated 29th March, 2006, but the respondent did not file any appeal challenging the aforesaid decision and decree, which has attained finality. Therefore, the respondent is not entitled to bring afresh suit on the same grounds mentioned in earlier suit. No doubt under section 17 of The AJ&K Family Courts Act, 1993 the provisions of C.P.C. Are not applicable to the proceedings before a Family Court but at the same time the blank Cheque cannot be given .To a litigant to present suit one after another. It will be pertinent to note that the AJ&K Family Courts Act, 1993 has been promulgated and Family Courts were established for expeditious settlement land disposal of disputes relating to family affairs; therefore, the provisions of Family Courts Act have to be strictly construed."
' While relying on the judgment titled Robina Fazil Yaseen Khan (2005 SCR 37), the Court observed that in this manner, the suit of the respondent was not maintainable; therefore, the appreciation and appraisal of the evidence of the parties will be an execise in futility, but the Court below failed to appreciate the legal position and has drawn wrong conclusion, which cannot be upheld.
6. After going through the judgment of the Shariat Court, we have come to the conclusion that instead of re appraisal of evidence, the Shariat Court has decided the appeal in a mechanical manner which is based on non-reading and misreading of evidence. For our own satisfaction, we have ourselves took pain and examined the whole evidence minutely. Admittedly the marriage was dissolved by way to a decree passed on the basis of Khula on 10-11-2006. In the suit for dissolution of marriage, the appellant succeeded to prove that she was forced to leave the house of her husband after a very short span of time of marriage. At the time of leaving the house of her husband, she was pregnant and admittedly she, was hospitalized and gave birth of a dead child.
This fact is also not denied by the respondent. However, he has taken the stand that all the expenditures were borne by him but he failed to substantiate his claim through any cogent evidence. The appellant substantiated her claim by producing oral as well as documentary evidence which has not been specifically denied by the respondent. It is celebrated principle of law that wife can claim past maintenance up to six years. The definition of word 'maintenance' in Islam is Nafqa . In the language of law it signifies all those things which are necessary to the support of life, such as food, clothes and lodging. The subsistence of the wife is incumbent upon her husband.
When a woman surrenders herself into the custody of her husband, it is incumbent upon him thenceforth to support her with food, clothing and lodging, whether she be a Mussalman or an infidel, because such is the precept in Holy Qur'an. Such an obligation arises from the moment the wife is subject to the moral control of her husband and in certain cases for a time even after it is dissolved. Similar view prevailed in a case titled Ghulani Habib v. Mst. Zubaida Khatoon (1992 CLC 1926), in which it has been held as under:-- "(4) Be that as it may, in Muhammad Nawaz v. Mst. Khurshid Beg= and 3 others (PLD 1972 SC 302), it was held that Article 120 of the Limitation Act applies in respect of claim for past maintenance. The limitation provided in the Article is for a period of six years when the right to sue accrues. In the instant case, the impugned decree for maintenance was passed by the Chairman Arbitration Council for a period of ten years and six months prior to the institution of the application, which was not warranted by law."
7. According to the Islamic Injunctions, it is the obligation of the husband to maintain his wife till she disobeys him without any good cause and that being so a husband is obliged to pay even the arrears of maintenance if not paid during the subsistence of the marriage if the wife has not given any cause for their nonpayment. The subsistence is incumbent upon her husband. The maintenance, in all circumstances, is to be considered a debt upon the husband in conformity with his tenet. It is really remarkable in Islam that as soon as two sui juris persons enter into contract of marriage so many rights are created but as soon as the marriage is dissolved, those rights will continue according to the Injunctions of Holy Qur'an. Wife can justly claim maintenance from the date of accrual of cause of action and not necessarily from the date of first seeking redress as has been laid down in case titled Muhammad Asad v. Mst. Humera Naz and others (2000 CLC 1725) in which it has been observed as under:-- "It is really remarkable in Islam that as soon as two sui juris persons enter into contract of marriage so many rights are created but as soon as the marriage is dissolved, those rights will continue according to the Injunsctions of Holy Qur'an. It is also held in Sardar Muhammad v. Naseema Bibi and others (PLD 1966 (W.P.) Lah. 703) that wife can justly claim maintenance from the date of accrual of cause of action and not necessarily from the date of first seeking redress."
' Similarly in a case reported as Ahmad Riaz v. Mst. Qaisera Minhas and others (1994 CLC 2403], it has been observed as under:-- "The basic principle was enunciated in Rashid Ahmad Khan v. Mst. Nasim Ara (PLD 1968 Lah. 93) wherein it was held that the husband should maintain the wife starting from the matrimonial tie and this right can be enforced with regard to the period of matrimonial life."
' It is also laid down in the supra titled judgment that the marriage in Islam being in the nature of a contract, dower is the consideration agreed between the parties which the husband has to pay to the wife either promptly or subsequently, in accordance with the terms of the agreement. On the contrary, maintenance is an obligation, which is one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances. The obligation of husband to maintain his wife has been derived from Verse No. 232 of Sura Al-baqara.
8. In Islam a husband is bound to maintain his wife throughout the period she remains in matrimonial bonds with him. Maintenance to the wife is not an ex gratia grant but husband is obliged to maintain his wife as has been held in a case reported as lqbal Hussain v. Deputy Commissioner/ Collector, Lahore and 3 others (PLD 1995 Lah.381), wherein it has been observed as under:-- "(10) This consensus amongst Muslim jurists- was given effect to by the legislature by enacting the Dissolution of Muslim Marriages Act, 1939. That Act placed an obligation on the husband to maintain his wife who was entitled to seek a decree for dissolution of marriage in the event of his failure to do so. After this enactment, the maintenance could no longer be said an ex gratia grant.
Consequently, no reliance can be placed on the principles stated in Hedaya, Fatawa-i-Alamgiri and Fatawa-i-Kazi Khan mentioned above."
9. " According to D.P. Mulla maintenance includes food, entertainment and lodging. According to the same author, the husband is bound to maintain his wife (unless she is too young for matrimonial intercourse) so long as she is faithful to him and obeys his reasonable orders.
10. Now the question arises that under the Azad Jammu and Kashmir Muslim Family Laws, the appellant was also entitled to recover the expenses incurred on the birth of a child. The husband being father of the child born to his wife is required under law not only to provide food and shelter to his family but also take care of other genuine needs of family. Therefore, it can safely be held that grant of delivery expenses is a part of maintenance. In this respect reliance is place on a case titled Maqsood Ahmed Sohail v. Mst. Abida, Haftif and 2 others (1992 MLD 219), wherein it has been held as under:-- "(5) The writ petition was admitted to the extent whether the expenses of delivery of child could have been granted by the Conciliation Court. Learned counsel for the Petitioner contended that 'maintenance' means maintenance simpliciter and did not include the said expenses. To the contrary is the argument of the learned counsel, for the respondent. Maintenance, as per Chambers Concise 20th Century Dictionary means keeping in existence, to preserve, to support, to make good'. For actual life of the respondent the delivery of the child was a must. So to keep the support the expense of delivery was to be considered as included in 'maintenance'. As per D.F.
Mulla in, his commentary on Mahomedan Law 'maintenance' includes food, raiment and lodging and other necessary expenses for mental and . Physical well-being'. The physical and mental well- being of the respondent needed the delivery of the child as well. Hence the grant of Rs.5,500 as delivery expenses as part of the maintenance was correctly granted by the Conciliation Court."
11. Another question which was raised in this appeal is whether after dismissal of first suit for the recovery of maintenance charges new suit on the same cause of action is maintainable. While adverting to this question of law of public importance, the trial Court has also taken care of this aspect of the case and has rightly held that under section 17 of the Family Courts Act, the Code of Civil Procedure is not applicable, therefore, filing of subsequent suit after dismissal of first suit is not hit by the principle of res juditata The Shariat Court has also rightly relied ,upon the case titled Robina Fazil v. Yaseen Khan (2005 SCR 37) in which it has been held as under:-- 'No doubt the provisions of C.P.C. And the Evidence Act are not applicable in the proceedings conducted under the provisions of Family Courts Act, 1993, however, the inherent powers are available to the Courts which are invoked when any situation is not covered by express provision of law and where the Courts feel that justice is to .Be done then in such peculiar circumstances even though no procedure is prescribed for such occasion, the Courts in exercise of inherent powers in such exceptional circumstances allow the parties such relief which in their opinion would meet the ends of justice."
' In another case reported as Ghulam Muhammad v. Mst. Rashida Bibi and 2 others (PLD 1983 Lah.
442), it has been observed:-- ' The plea of `Khula' was, therefore, a recurring cause of action and in no circumstances could it be hit, by the principle of res judicata as adopted in section 17 of the Family Courts Act. I agree with the findings of the learned District Judge. Obviously the plea of Khula is a recurring cause of action and it cannot be hit by the principle of res judicata as adopted in section 17 of the Family Courts Act. A wife can again and again take up the plea of Khula as she could develop hatred or dislike against her husband and every time under different circumstances and if she is successful in establishing and satisfying the conscience of the Court that she has firmly decided not to live with the husband, the marriage has to be dissolved on the basis of Khula and the question of res judicata cannot be a bar."
' Similarly in a case titled Aali v. Additional District Judge-I, Quetta and another (1986 CLC 27), it has been held as under:-- "7. We are inclined to hold that in order to constitute res judicata within the ambit of section 11, C.P.C., the subject-matter in the two suits should directly and substantially be in issue. The fact that one of the issues is common, or that some questions of fact are common or relevant, would not warrant the application of -section 11, C.P.C. In the instant case neither the question .Of exercising the option of puberty nor the question of `Khula' was in issue either in the' aforesaid suit for restitution of conjugal rights or in the suit which was filed by the respondent No. 2 for jactitation and which was withdrawn because of the decree passed for restitution of conjugal rights in favour of the petitiOner."
12. Here we would like to observe that although the C.P.C. Is not applicable in the family matters, however, in absence of any specific provision, the general principles of C.P.C. Are attracted and if there is a continuous wrong and new cause of action is accrued, thus, on the basis of new cause of action, a new suit can be filed at any time.
13. In view of what has been discussed above, we do not feel any hesitation to hold that the Shariat Court has failed to determine the real controversy involved in the case and instead of deciding the case on merits after reappraisal of evidence on the record, decided the same by holding that the suit of the respondent (appellant herein) was not maintainable, therefore, the appreciation and appraisal of the evidence of the parties will be an exercise in futility. The judgment and decree passed by the trial Court are well reasoned and based on cogent reasons. The trial Court has rightly appreciated the evidence in its true perspective. We are unable to find out any misreading or non-reading of evidence in the judgment passed by the Judge Family Court.
' Resultantly, the judgment and decree passed by the Shariat Court on 26-6-2007 are not maintainable which are set aside while accepting this appeal and the judgment and decree passed by the Judge Family Court, Sehnsa, on 21-12-2006 are restored with no order as to costs.