' KH. IMTIAZ AHMAD, J.---This Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 impugns the order dated 12-3-2008 passed by the learned Judge Family Court, Multan whereby claim of, the plaintiff for recovery of maintenance was dismissed while the suit for recovery of dower was decreed to the extent of three tola gold or in alternate its value i.e, Rs,30,000 and the -order dated 2&-4-2008 passed by the District Judge, Multan whereby the appeal was dismissed.
2. Learned counsel for the petitioner contended that when the suit for recovery of prompt dower had been decreed then there was no occasion for both the courts below to dismiss the claim of maintenance of petitioner since the institution of suit itself was demand for the payment of prompt dower and in case of its refusal the wife has the right to reside separately and in such eventuality the husband is bound to pay the maintenance. In this behalf he has placed reliance upon the case-law captioned "Chanani Begum v. Muhammad Shafique and 2 others 1985 M LD 310. He further contended that claim of petitioner for the recovery of prompt dower was decreed to the extent of three tola gold and its value was fixed in the Nikah Nama as Rs,30,000 and the marriage took place on 25-8-2005, so, the alternate value of said gold should have been fixed according to the prevailing rate of the gold at the time of decree. In this behalf he placed reliance upon "Mst.Mehbooba v. Abdul Jalil" (1996 SCM R 1063).
3. On the other hand, learned counsel for the respondent No,3 contended that prior to the filing of suit by the petitioner the respondent had also filed a suit for restitution of conjugal rights and both the suits were consolidated and said suit for restitution of conjugal rights was decreed and in such eventuality there was no occasion for the petitioner to reside separately from her husband, so, she was not entitled to any maintenance. He also contended that Rs,30,000 was fixed in the Nikah Nama as alternate value of three tola gold, so, both he courts below had rightly fixed the said value.
4. Arguments heard. Record perused.
5. In order to appreciate the contentions raised by the learned counsel for the parties, it is appropriate to go through the pleadings and evidence produced by the parties. The petitioner filed a suit for maintenance, for recovery of dower and recovery of dowry articles on 16-12-2006. The maintenance was claimed from 1-1-2006 to 31-12-2006 @ Rs,5,000 per month and at the same rate for future maintenance. In the plaint it was alleged that after three months of the marriage, the defendant after selling jewellery of plaintiff and buffalo went to Saudi Arabia and after 10 days of his departure the parents of defendants turned her out from their home and thereafter did not pay any maintenance and when the defendant came back to Pakistan, the plaintiff and. Her parents contacted the defendant and asked him to pay the maintenance and dower but he replied that he had been turned out from Saudi Arabia and needs further Rs,1,00,000 and asked the parents of the plaintiff to pay the same but they refused. To the extent of dower it was mentioned that 3 tola gold and 5 marla land was given in dower. The suit was resisted by the defendant who filed the written statement wherein it was maintained that dower as mentioned in the Nikah Nama has been paid and in the year 2006 when he came back from Saudi Arabia he went to bring back the plaintiff but the plaintiff refused.
6.. Out of the pleadings of the parties, issues were framed. With regard to maintenance issue No,1 was framed which reads as under:--
(1) Whether the plaintiff is entitled to recover maintenance from the defendant, if so, at what rate and for what period? OPP With regard to dower issue No,2 was framed which reads as under:--
(2) Whether the plaintiff is entitled to recover dower? OPP
7. In order to prove these issues, plaintiff herself appeared as P.W.1 and in her examination-in-chief she deposed that she only remained "Abaad" for six months. To the extent of dower she deposed that three tola gold and Rs,50,000 was fixed as dower amount which had not been paid to her. In the cross-examination she denied that three tola gold was paid to her. She further admitted that when the defendant went to Saudi Arabia he gave her Rs,20,000 and after 3/4 days of his departure, her mother took her back from the house of defendant. Almost same is the statement of P. W.2.
8. On the other hand the defendant himself appeared as DW-1 and deposed that after three months of marriage he went to Saudi Arabia but in spite of insistence of his parents, plaintiff went to her home.
' Both the courts below after going through the evidence rightly observed that the plaintiff had failed to prove that the defendant was liable for desertion. The plaintiff herself in her statement had not uttered even a single word that she was turned out by the parents of defendant and it appears that plaintiff herself was liable for this desertion. However, it stands established that three tola gold which was fixed as dower and entry is also available in the Nikah Nama, was not paid to the plaintiff and her suit decreed to the said extent which had not been challenged by the respondent Now, filing of suit by the plaintiff demanding the prompt dower is itself a notice to the defendant that the plaintiff is insisting upon the prompt dower but the defendant so far has not paid her prompt dower and in such eventuality when the prompt dower is not paid by the husband from the date on which it was demanded, the wife has the right to refuse to live with the husband until the payment of prompt dower and husband is bound to pay her maintenance during this period. The reliance can be placed upon 1985 M LD 310 and date of institution of suit is the date of demand for the payment of prompt dower, so, in such eventuality the plaintiff was entitled for the maintenance till the prompt dower is paid to her. However, both the courts below had not considered this legal aspect, so, in my humble view, both the courts below to this extent had committed patent illegality.
Section 48 of the Mohammedan Law by Sir Konald Knyvet also provides as under:-- "Section 48. In addition to her right to recover the prompt dower by regular suit, the wife 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 wife. 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 with her free consent, but the decree may be made conditional on payment of the prompt dower."
' Same principle was laid down in a case reported in PLD 1971 Lahore 866 (DB).
9. In view of what has been said above, the findings of both the courts below on issue No,1 with regard to maintenance are set aside and it is -hereby held that plaintiff is entitled for maintenance from the date of institution of suit till the payment of prompt dower.
10. Now, next question which requires consideration is as to what should be the quantum of maintenance. In the plaint it was alleged that the defendant was electrician and could pay Rs,5,000 per month. In the written statement it was alleged that the defendant was labourer in Saudi Arabia and his parents are also residing with him and he was ready to pay the reasonable amount if the plaintiff lives with him. The plaintiff in her statement alleged that the monthly income of the defendant was 40,000/50,000 per month. However, the defendant .In his statement as DW-1 has not uttered even a single -word that as to what was his income. Thus, in view of the fact that the defendant is working in Saudi Arabia in my humble view Rs,1,000 per month would be sufficient amount for the plaintiff which the defendant is liable to pay from the date of institution the suit till the payment of prompt dower and the claim of maintenance of plaintiff stands decreed accordingly.
11. Now coming to the second aspect of the case i.e, with regard to alternate value of gold ornaments weighing 3 tola which was a prompt dower. Exh.P-2 which is the copy of Nikah Nama shows that marriage took place on 25-8-2005 and at that time three tola gold was fixed as dower and its value was mentioned as Rs,30,000. The contention of learned counsel for the petitioner has force that the value of the gold should have been fixed according to the prevalent rate.
Accordingly, it is held that the alternate value of three tola gold would be the value which was at the time of institution of suit and the learned Executing Court would determine the said value at the time of institution of suit and the claim of plaintiff for dower stands decreed accordingly.
12. The net result of above discussion is that this writ petition is allowed in the above mentioned terms and judgments of both the courts below are modified accordingly.