MOHAMMAD AZAM KHAN, CJ. --- As the common question of law that if the were voluntarily leaves the house of his husband and later on, claims maintenance, whether she is entitled for maintenance or not, is involved in all the above-titled appeals, therefore, these are proposed to be disposed of through a single judgment.
2. In appeal No. 111/2012, titled Mst. Amreen Bibi v. Muhammad Kabeer, the facts of the case are that the appellant and the appellant respondent got married on 11.10.2007. Out of their wedlock a daughter, Huma, was born. After some time the relations of the parties became strained. The appellant was ousted from the house of the respondent on 20.07.2009. A suit by minor, Huma, filed through her mother in the Family Court, Mirpur for grant of maintenance at the rate Rs. 3775/- per month. Another suit by the appellant was filed in the same Court on 26.10.2009 for grant of maintenance to the tune of Rs. 5000/- per month, wherein it was alleged that the respondent treated her with cruelty and ousted her from his house on 15.04.2009. She requested for award of past maintenance as well as future maintenance to the tune of Rs. 5000/- per month. Both the suits were consolidated. The Family Court vide judgment and decree dated 31.12.2011, passed a decree for maintenance allowance in favour of minor, Huma, and appellant at the rate of Rs.
2000/- per month each, as past maintenance from 15.04.2009 to the date of decision and future maintenance at the same rate. Feeling dissatisfied, two separate appeals were filed by the respondent in the Shariat Court. The Shariat Court vide judgment dated 05.06.2012, maintained the decree of the Family Court to the extent of maintenance of minor daughter, Huma, and set aside the decree of Family Court to the extent of the appellant.
3. Mr. Kamran Tariq, Advocate, the learned counsel for the appellant argued that the respondent did not appear personally in the Family Court as a witness rather opted to give testimony through his attorney. He never made a sincere effort or attempt to bring the appellant back to his house.
The learned counsel further argued that it was wrongly held by the Shariat Court that the appellant was not willing to live with the respondent. He submitted that the respondent never tried for reconciliation, but this aspect was totally ignored by the Shariat Court. The Shariat Court has not appreciated the evidence in its true perspective. The learned counsel also contended that it was ignored by the Shariat Court that the were is entitled to claim separate accommodation and she cannot be forced to live with the parents or the relatives of the husband. He submitted that the judgment of the Shariat Court to the extent of appellant is not maintainable. The appellant is entitled for maintenance to the tune of Rs. 5000/- per month. The respondent is running business of Auto Mechanics in Mirpur as well as in Dubai, and his earning is more than one lac rupees per month. The respondent being a well-of person can easily afford the maintenance of the appellant.
He referred to the cases reported as Mst. Farkhanda Mumtaz v. Muhammad Sherif and 2 others [PLJ 2006 Peshawar 206], Mst. Iqra v. Abuzar [2012 SCR 284], Mst. Iqra v. Abuzar [PLJ 2012 Sh. C. (AJ&K)
161], Muhammad Yaseen and another v. Mst. Kali Bibi and.Others [PLJ 2012 Sh. C. (AJ&K) 33].
4. The father of the respondent who is also his attorney, personally appeared before the Court and submitted that the respondent has no source of income to pay the heavy maintenance charges demanded by the appellant He is a daily waged worker, working as a mechanic in a workshop. He is supporting his mother, father and three sisters. He tried his level best for reconciliation but the appellant demanded that she can reconcile only if the respondent arranges a separate accommodation, pays Rs. 500,000/- in cash and purchase a plot for her, which is beyond his capacity. He requested for dismissal of the appeal.
5. In the appeal titled Asifa Kdnwal & another, v. Raja Waleed Asad, appellant No. 1 alongwith her minor daughter, Dua Waleed filed a suit before the Judge, Family court, Bhimber for grant of maintenance charges at the rate of Rs. 4000/- per month, expenses of the minor's delivery amounting to Rs. 30,000/-, past maintenance charges amounting to Rs. 108,000/- at the rate of Rs.
3000/- per month and maintenance charges of Dua Waleed at the rate of 4000/- per month, total amounting to Rs. 2,61,000/-. The plaintiff, appellant No. 1, herein alleged in the suit that she was married to the respondent, Waleed Asad on 25th January, 2006. The relations between the parties became strained. She was pregnant when the defendant ousted her from the house. On 17th September,. 2009, a daughter namely Dua Waleed, appellant No. 2, was born of their wedlock. The defendant, respondent herein, on 15th November, 2011, divorced her. She requested for payment of maintenance charges in the terms indicated above. After necessary proceedings, the Trial Court decreed the suit to the extent of minor, Dua Waleed at the rate of Rs. 2500/-from the date of institution of the suit and decreed the suit of appellant No. 1, herein, for the period of lddat at the rate of Rs. 3000/- per month, total amounting to Rs. 9000/-. The decree was challenged by the appellants and respondent. A learned single Judge in the Shariat Court dismissed both the appeals vide impugned, judgment dated 20th November, 2012.
6. Mr. Muhammad Riaz Tabassum, Advocate, the learned counsel for the appellants submitted that the judgment of the Shariat Court is against law and the record. The Shariat Court failed to consider the evidence. It is a clear case of misreading and non-reading of evidence. The appellants have proved their case with cogent and reliable evidence. The appellant proved that she was ousted from the house of her husband in September, 2009. The minor was also born in September, 2009. The respondent divorced appellant No. 1 on 15th November, 2011. She was entitled for maintenance charges of past period. The learned counsel argued that the Shariat Court incorrectly declared that appellant No. 2 is entitled for maintenance charges from the date of institution of suit. She was born in September, 2009. She is entitled for maintenance charges from the said date.
7. While controverting, Miss Ghazala Haider Lohdi, Advocate, the learned counsel for the other side, argued that it is correct that a were is entitled for maintenance allowance but if a were leaves the house of the husband voluntarily without any reason then she is not entitled for maintenance charges. The learned counsel also argued that in para 3 of the written statement it was specifically alleged by the defendant, respondent herein, that appellant No. 1 was not ousted from the house by her husband. She went out voluntarily, therefore, she is not entitled for maintenance charges.
8. In appeal No. 26 of 2012 titled Nazam Hussain v. .Zobila Kousar & others and appeal No. 28 of 2013 titled Zobila Kousar v. Nazam Hussain the precise facts are that Zobila Kousar, Ali Hassan and Bilal Ali, filed a suit on 1st December, 2011 for grant of past maintenance for the period from 2008 till November, 2011, a period of 36 months at the rate of 5000/- per head, total amounting to Rs.
54,0000/- and future maintenance at the rate of 5000/- per head, before the Judge Family Court, Samahani. It was alleged that Zobila Kousar was. Married to Nazam Hussain On 2nd November, 20C)6. She remained populated with the defendant and out of their wedlock plaintiffs No. 2 and 3 were born, who are the minors. It was alleged that she was ousted by her husband after mercilessly beating and snatching the gold ornaments. She is living alongwith the minors in her parents' house.
The defendant has not paid the maintenance charges. She requested for grant of decree. In the written statement, the defendant claimed that he has been regularly paying the monthly maintenance charges. He was out of the country when plaintiff, appellant No. 1 voluntarily left the house and went to her parents' house, and took the gold ornaments alongwith her. He alleged that his monthly income is 850 dirham. 400/- dirham are his personal expenses. After deducting the expanses there remains 450/-, dirham which comes to Rs. 10,350/- per month. He is also maintaining his aged parents. He requested for dismissal of the suit. The Trial Court after necessary proceedings partly decreed the suit, while declaring plaintiffs No. 1 and 2, entitled for maintenance charges of previous three years and plaintiff No. 3 for the previous 21/2 years from the date of institution of suit and thereafter at the rate of Rs. 1500/-, plaintiffs No. 2 and 3 were declared entitled for payment of Rs. 3000/ per month in future. Dissatisfied from the judgment and decree, Nazam Hussain filed appeal in the Shariat Court. A learned Single Judge in the Shariat Court partly accepted the appeal, set aside the decree to the extent of respondent No. 1, Zobila Kousar and declared that she is entitled only to get the maintenance allowances of Iddat period. The judgment to the extent of other respondents was kept intact. Two appeals titled above have been filed against the said judgment.
9. Mr. Zaffar Hussain Mirza, Advocate, the learned counsel for Nazam Hussain, argued that Zobila Kousar is not entitled for maintenance charges. She voluntarily left the house of her husband. Her husband was out of country, therefore, there is no question of ousting her from the house by the husband, therefore, she is not entitled for maintenance charges. The learned counsel submitted that the period of maintenance charges of the respondent has incorrectly been calculated by the Courts. The minors remained living in the house of the father for three years, therefore, they are not entitled for the maintenance of the said period. The learned counsel also argued that the plaintiff has specifically alleged in the written statement that he has no source to pay such heavy expenses to the minors but the Court has ordered for_pernitot, of heavy amount which is beyond the capacity of the plaintiff. He referred to the case reported as Mst. Hanifa Bi v. Muhammad Moosa and another [PLD 1998 Karachi 234].
10. While controverting the arguments, Mr. Abdul Razzaq Ch., Advocate, the learned counsel for Zobila Kousar and others submitted that the judgment of the Shariat Court is partly incorrect.
Zobila Kousar is entitled for past maintenance because she was ousted from the house by the parents of the plaintiff. She has specifically proved through cogent and reliable evidence that she alongwith her parents kept on trying to reconcile with her husband but her husband and his parents refused to reconcile the matter. The learned counsel submitted that if a were voluntarily leaves the house of his husband without any reason then she has no right to claim the maintenance charges from her husband but if a were is ousted from the house and she explains the reason then she is entitled for maintenance charges. The learned counsel referred to Mohammedan Law by Mulla, Section 237 and Mst. Lqra v. Abuzar [2012 SCR 284] and Raja Tahir Bashir v. Mst. Gulsheeda Bibi & 7 others [2008 CLC 952]. The learned counsel submitted that the case of Zobila Kousar is proved from the evidence and the Trial Court after appreciation of evidence decreed the suit of the appellant. The learned counsel further argued that judgment of the Shariat Court is out of pleadings. The Shariat Court has based its judgment on such facts which are not part of the record. The learned counsel requested for dismissal of the appeal of Nazam Hussain. The counsel for the other side also requested for dismissal of the appeal of Zobila Kousar and others.
11. In the appeal titled Ashfaq Hussain v. Sajida Kousar the respondent, Sajida Kousar filed a suit for maintenance charges before the Judge Family Court, Kotli, alleging there in that she was married to defendant, appellant herein on 1st December, 2002. At the end of February, 2003, the defendant mercilessly beaten her, snatched the ornaments, cloths and ousted her from the house and sent her to the house of her mother. She is continuously living in the house of her mother from 1st March, 2003. She claimed that monthly income of the plaintiff is Rs. 15,000/- to Rs. 20,000/-. She claimed maintenance charges of Rs. 3000/-per month. Ashfaq Hussain also filed a suit for restitution of conjugal rights against Sajida Kousar. The Trial Court- tried both the suits separately but decided through a consolidated judgment on 22nd December, 2011. The decree for restitution of conjugal rights was passed in favour of the plaintiff, Ashfaq Hussain, while suit filea by the appellant Sajida Kousar was also decreed and she was declared entitled for maintenance charges of past 6 years amounting to Rs. 40,000/- and future maintenance at the rate of 3000/-per month. The appellant, Ashfaq Hussain filed an appeal in the Azad Jammu & Kashmir Shariat Court. A learned Single Judge in the Shariat Court dismissed the appeal vide impugned judgment on 30th January, 2013.
12. Mr. Arshad Majeed Malik, Advocate, the learned counsel for the appellant, submitted that the judgment of the Shariat Court is against law and the record. The learned counsel submitted that the appellant filed a suit for restitution of conjugal rights and decree for restitution of conjugal rights has been passed in favour of the appellant. No appeal was filed against the said decree. The decree has attained finality. After the said decree the respondent has no right to claim the maintenance charges. He submitted that the plaintiff, respondent herein, left the house of her husband with her free will and it is settled law that if the were leaves the house of her husband voluntarily without any reason then she is not entitled for maintenance charges. The learned counsel referred to the case reported as Bahadur Khan v. Mst. Bhag Bhari [PLD 1977 Lahore 90].
13. Raja Imtiaz Ahmed Khan, Advocate, the learned counsel for the other side while arguing on behalf of the respondents submitted that the judgment of the Shariat Court is perfectly legal. The plaintiff, respondent herein, was ousted from the house by her husband after mercilessly beating.
This fact is proved from cogent and reliable evidence. The learned counsel further argued that plaintiff, respondent herein, wants to live with her husband as were. In the written statement, filed in the suit by Ashfaq Hussain, in reply of para 3, she has categorically stated that she is ready to live with her husband. She has produced the witnesses who stated that she was mercilessly beaten by her husband and they tried to reconcile but the appellant and his parents categorically stated that they will not reconcile with her, they are not ready to bring her back in the house and will not divorce her. The appeal merits dismissal.
14. The plaintiff, respondent herein, was present in the Court at the time of hearing. She stated that the appellant works in U.A.E. She is ready to live with him as his were. At this the counsel for the appellant sought time for producing the appellant in the Court. On the next date of hearing, the counsel for the appellant stated that the appellant has gone abroad. He is not in a position to appear before the Court.
15. The common question of law involved in the appeals is that if a were voluntarily abandons the house of the husband without any reason, whether she is entitled for maintenance charges or not.
It may be observed that it is the basic duty of the husband and he is bound to maintain his were.
Section 272 of Mohammedan Law by Mullah provides that husband is bound to maintain his were so long she is faithful to him and obeys reasonable orders but he is not bound to maintain a were who refuses herself to him or otherwise disobeys. The refusal or disobedience is justified if dower is not paid or she is forced to live with her husband despite cruelty. Section 278 postulates that if a husband refuses to maintain his were, she may sue for maintenance. It is the duty of a Muslim were to perform her part of obligation and then to claim maintenance. The husband may refuse to maintain his were when she refuses to live with him and if a were refuses to live in the house of her husband and not ready to perform her part of duty and denies to live with him as his were, she is not entitled for maintenance. But in case, where cruelty to her is established and the circumstances created by the husband or in the house of husband are such that the were cannot live there peacefully and she has to abandon his house. When were successfully proves that she is forced to abandon the house of her husband then she is entitled for maintenance charges. The question, whether the were has voluntarily left the house of her husband or she was ousted from the house or she was forced to leave the house due to cruel attitude has to be decided on the basis of evidence. The cruel attitude is not confined only to the extent of physical violence, it includes the mental torture, hateful attitude of husband or other inmates of the house and also includes other circumstances, in presence of which the were is forced to abandon the house of her husband. The cruelty is defined in an unreported case titled Shamim Akhter v. Arshad Mehmood (Civil Appeal No. 57 of 2010, decided on 21.02.2013), it was observed as under:--- "Under Clause (a) of ground (viii), if the husband treats the were with cruelty, assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill- treatment. Then too the were is entitled to have a decree of dissolution of marriage. The reading of aforesaid section reveals that marriage can be dissolved on all the grounds or any one of them if proved by the were. Ground (viii) of Section 2 of the Act makes it abundantly clear that it is not necessary that there shall be physical ill-treatment rather the cruel conduct and cruel treatment is a valid ground for dissolution of marriage. The word 'cruelty' in Black's Law Dictionary (Eighth Edition) is defined as under:-- 'Cruelty. The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage.' 'legal cruelty. Cruelty that will justify granting a divorce to the injured party; specific, conduct by one spouse that endangers the life, person, or health of the other spouse, or creates a reasonable apprehension of bodily or mental harm.
Mental cruelty. As a ground for divorce, one spouse course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.
Physical cruelty. As a ground for divorce, actual personal violence committed by one spouse against the other.'
The dictionary meaning of word 'cruelty' clearly shows that cruelty may be mental or physical.
Cruelty by conduct of a spouse also justifies the grant of divorce. This Court in a case reported as Syed lmtiaz Hussain Shah & another v. Mst. Razia Begum & 3 others [2011 SCR 233], observed as under:--- ......... The argument advanced on behalf of the appellant that the factor of cruelty is not proved because none of the witnesses stated that he has witnessed any sign of injury caused by the appellant on the person of the respondent. Such an argument is itself indicative of the cruel mentality. For proof of cruelty, infliction of injury is not required by law. In matrimonial matters, the Courts have been treated false allegation against a were to be a cruelty which results into mental torture and loss of mutual confidence.'
In another case reported as Muhammad Shariful Islam Khan v. Mst. Suraya Begum & others [PLD 1963 Dhaka 947] it was observed in para 13 as under:--- '13. The view of mine also finds support in the Dissolution of Muslim Marriages Act (Act VIII of 1939).
Many grounds for divorce by a suit by the were have been provided for in this Act. One of them is cruelty. Cruelty can be physical and mental. Mental Cruelty is the worst The false allegation by the husband of a chased women as to chastity of a chased woman cuts to the heat. It is an evidence of the woman that the plaintiff and her father were arrested by the Police in criminal proceedings against her and the plaintiff was jeered at by the husband (defendant No. 1).'
The Trial Court has observed that cruelty is not proved. The plaintiff and her witnesses categorically stated in their Court statements that the husband habitually assaults and beats the plaintiff and made her life miserable by cruel conduct. The Trial Court has misread the evidence. The cruelty of the husband/defendant is proved from the record."
In Ameer Ali's Mohammedan Law, Volume 2 it has been observed as under:- " 'But the right of the were to maintenance is subject to the condition that she is not 'refractory' or does not refuse to live with her husband without lawful cause.'
Where were refuses to return to her husband's house without sufficient cause she is not entitled to maintenance.
Ordinarily no person who is poor is under a duty to maintain any other relation. This rule is also subject to exceptions. A person is bound to maintain the following relations even though he is poor:--
(a) the were even if the husband is necessitous (Sec. 82); and
(b) sons till they attain puberty and daughters till they are married provided they are poor."
Tanzeel-ur-Rehman's, in sub-section (6) of Section 86 of Majmoo-a-Qawanin Islam has observed as under:- {{URDU TEXT}} ,ss (j-,uil-i) (6)"
Lcs j-C-4 =3-5` In the case reported as Arshad Ali v. Additional District Judge, Vehari and others [2002 CLC 1450] it was observed as under:--- "11. There is no cavil to the proposition that a husband is bound to maintain his were but right of maintenance of the were is subject to the following conditions:---
(i) She must be faithful to the husband and obey his reasonable order, if she refuses herself to him, he is not bound to maintain her.
(ii) Wife is not entitled to maintenance when she lives apart from the husband except for non- payment of her dower in which case her right of maintenance continues even though she is living apart from him."
It was observed in the case titled Mst. Lqra v. Abuzar [2012 SCR.284] as under:--- "7. According to the Islamic Injunctions, it is the obligation of the husband to maintain his were 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 were has not given any cause for their non-payment. 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 furls 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. It is also held in Sardar Muhammad v. Naseema Bibi and others [PLD 1966 (W.P.) Lah. 703] that were 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 Ahmed Riaz v. Mst. Qaisera Minhas and others [1994 CLC 2403], it has been observed as under:- 'The basic principle was enunciated in Rashid Ahmed Khan v. Mst. Nasim Ara [PLD 1968 Lah. 93] wherein it was held that the husband should maintain the were 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 were 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 were has been derived from Verse No. 232 of Sura Al-Baqra.
8. In Islam a husband is bound to maintain his were throughout the period she remains in matrimonial bonds with him. Maintenance to the were is not an ex gratia grant but husband is obliged to maintain his were as has been held in a case reported as Iqbal 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 were 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-iKazi Khan mentioned above.'
9. According to D.F. Mulla maintenance includes food, entertainment and lodging. According to the same author, 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."
In the case titled Bahadur Khan v. Bhag Bhari [PLD 1977 Lahore 90], it was observed as under:--- "11. As regards the failure of Mst. Bhag Bhari to refuse to live with Bahadur Khan petitioner despite the decree for restitution of conjugal rights I .Am of the considered opinion that she was not entitled to maintenance on this ground. It is duty, of a Muslim were to'perform her part of the obligation, so ordained by Qur'an and Sunnah and then to claim maintenance if her husband still chooses to neglect her. It was held in Said Badshah v. Mst. Sughran Bibi (PLD 1967 Pesh. 17), that husband could refuse to maintain his were when she refused to live with him. Similarly it was held in Mahta v. Aye Maung (AIR 1931 Rang. 111) that in case, were refused to live with her husband and still claimed the maintenance, a decree for restitution of conjugal rights in favour of the husband was always a good defence to application for maintenance."
16. We respectfully disagree with the observation made in PLD 1977 Lahore 90 reproduced above.
There may be a case where were is ousted by her husband from the house after mercilessly beating her and when she files a suit for maintenance charges, the husband also files a suit for restitution of conjugal rights only to defeat the suit for maintenance. Actually he does not want to bring her in his house as his were and in the shade of said decree defeats the suit for maintenance.
When were proves that she was ousted from the house by husband then a decree for restitution of conjugal rights is no bar in a suit for maintenance.
17. Thus, it can safely be concluded that it is the duty of the husband to maintain a were till she is faithful to him and ready to live with him in his house and perform her part in this respect but if a were abandons the residence of his husband voluntarily without any reason and is not ready to live with him as his were then she is not entitled to past or future maintenance. It is further observed that if a were is ousted from the house by husband or she is forced to leave the house of her husband due to cruelty physical or mental of the husband or other inmates of his family, she is entitled for maintenance charges.
18. In the appeal titled Mst. Amreen v. Muhammad Kabir, the appellant filed two suits; one on behalf of minor, Hama and the other for herself for grant of maintenance to the tune of Rs. 3775/- per month to the minor and for grant of past maintenance from 15th April, 2009 to 23rd October, 2009, amounting to Rs. 30000/- and Rs. 5000/- for future maintenance charges to herself. The suits were decreed for the past and future maintenance at the rate of Rs. 2000/- per month per head. The learned Single Judge in the Shariat Court accepted the appeal of the respondent to the extent of Mst. Amreen and judgment to the extent of minor, Huma was maintained. The learned Single Judge in the Shariat Court observed that the appellant is not entitled for maintenance charges as she stated that she can only reside with her husband if he pays her cash amount to the tune of Rs.
500,000/- alongwith plot, jewelry, maintenance allowance and other dowry. The respondent is working as a mechanic, therefore, he is not in a position to pay such amount. Although, it is not the duty of this Court to re-appraise the evidence but in particular circumstances of the case we have decided to re-appraise the evidence produced by the parties.
19. The defendant-respondent categorically stated in the written statement that he tried to reconcile with the plaintiff. She went with her mother at her on free will. He sent different persons three times for bringing the plaintiff back to the house. While going to her house the plaintiff took his passport, the gold ornaments given in dower and later on her mother came with some persons and took away the dowry items after beating his parents. Muhammad Shaffi, father of the appellant appeared as witness and stated in the Court that if the defendant pays the maintenance charges then too the plaintiff is not ready to populate with him. The plaintiff, appellant herein, appeared as her witness and stated that she is ready to populate with her husband if he gives her one plot, Rs. 500,000/-, ornaments, dowry and maintenance charges and also arranges a separate accommodation for her. She also stated that her husband works in a workshop. Faqir. Muhammad another witness of plaintiff stated that the defendant works in a workshop. His monthly income is Rs. 2000/- to Rs. 4000/-. Again he said that the monthly income of the appellant is Rs. 20,000/- to Rs. 25,000/-. He also has a Rikshaw. Muhammad Javaid, witness of the defendants stated that the defendant is a helper in a workshop. He earns Rs. 100/- to Rs. 150/- per day. He stated in the cross- examination that the Rikshaw is not owned by the defendant. He also stated that the plaintiff demands a separate house for accommodation. Munshi Khan, father of the defendant and his attorney got his statement recorded. He stated that the plaintiff went to her parents house. When he went to bring her back she refused and demanded that 5 marlas plot, Rs. 500,000/- shall be given to her. He tried a number of times to bring her back but she refused to reconcile. In the cross- examination he stated that daily income of the defendant is Rs. 100/- to Rs. 150/-and income from Riksha'w is Rs. 100/- to Rs. 200/- and sometimes Rs. 250/- per day.
20. From the perusal of the statements of the witnesses produced by the plaintiff, appellant herein, and defendant, it is clear that the defendant, respondent herein, tried to reconcile with the plaintiff, appellant herein, but she refused to live with him as his were. She agreed to live with the defendant on the conditions if he arranges a separate accommodation for her, purchase a plot for her and pays Rs. 500,000/- in cash. It is proved that the appellant was not ousted by her husband from the house. He tried to reconcile but the appellant imposed such conditions which virtually amount to refusal.
21. After re-appraisal of the evidence there appears no misreading or non-reading of the evidence.
It is in accordance with the law applicable on the subject. The appeal merits dismissal.
22. In the appeal titled Asifa Kanwal v. Raja Waleed Asad, the appellants filed a suit for maintenance allowances before the Judge Family Court on 13th December, 2011 for past maintenance of three years specifically, alleging therein, that she was ousted from the house of the respondent three years back. A daughter was born out of the wedlock on 17th September, 2009. The Trial Court has not believed the witnesses of the plaintiff to the extent of the cruelty. The Trial Court and the Shariat Court have observed that fact of cruelty and the fact that the appellant No. 1 was ousted from the house by the husband is not proved from the evidence. We have for our on satisfaction perused the record. There is no misreading or non-reading to this extent. The findings of the Trial Court and the Shariat Court that the appellant failed to prove that she was treated cruelly and ousted from the house is based on evidence.
23. The Trial Court believed the evidence to the extent that since birth the minor is living with her mother and granted the maintenance to the minor, Dua Waleed at the rate of Rs. 2500/- per month from the date of institution of the suit. When the Trial Court believed the evidence that the minor is living with mother since birth then it was enjoined upon the Trial Court to award past maintenance. The Trial Court has not given any reason for not awarding the past maintenance. It was observed in the case titled Mst. Zaiban v. Mehrban [2004 SCR 108] as under:--- "9. The Trial Court on the basis of evidence allowed a decree for the past maintenance of ten years.
Though this Court was not obliged to peruse the entire evidence, however, for the safer administration of justice we have done so and are of the view that the findings of the Trial Court are based on the evidence and have been made after due appreciation as required under law, therefore, those findings cannot be held against the record.
10. The next question which arises was also seriously opposed by the learned counsel for the respondent that the past maintenance for a period of ten years cannot be granted. After perusing the Family Courts Act it can safely be held that the past maintenance can be granted by the Family Court but in view of the fact that there is no specific article providing limitation for filing suits for maintenance therefore, the resort can be had to the residuary Article 120 of the Limitation Act which prescribes six years as limitation, therefore, it is held that the past maintenance of six years can be granted and beyond that the claim would be barred by limitation. Proposition finds support from a case reported as Muhammad Aslam v. Mst. Zainab Bibi and 3 others [1990 CLC 934] where the following observations were made:- '4. There can be no cavil that the provisions of Limitation Act, 1908 are applicable to proceedings before the Family Court and further that Section 3 of the Limitation Act obliges a Court in no unmistakable term to reject the claim if it is beyond the time prescribed by the First Schedule to the Act. There is no specific Article in the Schedule providing limitation for filing suits for maintenance, with the result that the resort must be had to the residuary Article 120 of the Limitation Act which provides 6 years period as limitation. A Division Bench of this Court in Muhammad Nawaz v.
Khurshid Begum and others (PLJ 1969 W.P. 235) decided on 15th December, 1969 was called upon to consider the question as to whether the past maintenance could be granted by the Arbitration Council under the Muslim Family Laws Ordinance, 1961, and if so, far what period. It was held:--- It is conceded by the learned counsel that there is no Article in the Schedule to the Limitation Act dealing specifically with the question of the recovery of past maintenance, and for that reason the matter may be said to be governed by the residuary Article 120 which prescribes a period of six years. The past maintenance in the present case has been allowed by the Arbitration Council Expressly for a period of five years and ten months which would, therefore, appear to be within the period of limitation as obtaining under Article 120 of the Schedule to Limitation Act.'
This judgment was affirmed in appeal by the Supreme Court of Pakistan in the case reported as Muhammad Nawaz v. Mst. Khurshid Begum and three others (PLD 1972 - SC 302). The above- quoted observation of the Division Bench were approved by the Supreme Court in the following terms:--- '... In the present case, the High Court has considered the question of limitation and has come to the conclusion that Article 120 of the Limitation Act applies to the facts of the present case and the claim of the respondent was not barred by limitation. In this view of the matter, we are satisfied that the High Court has rightly held that the Arbitration Council was competent to award past maintenance."
Thus, appellant No. 2, Dua Waleed is entitled for maintenance charges from 17th September, 2009, the date of her birth..
24. It is on record that the respondent is working abroad and has contracted a second marriage.
He is maintaining his second were. He is a resourceful person. The Court has power to grant maintenance charges keeping in view the financial position of the father and his economic resources. The Court has power to pass a decree which is executable. The proposition has been resolved by this Court in a recent judgment titled Shahpal Anjum v. Mst. Samina Kousar (Civil Appeal No. 64/2010, decided on 20th February, 2014). It was observed as under:--- ""14. No doubt, a husband is under the obligations to maintain his wedded were but at the same time the Holy "Qur'an" and "Sunnah" has cast some duties and obligations upon the were which are originated from Verse No. 34 of Surah Al-Nisa, which is as follows:- {{URDU TEXT}} k-44 qtyLsic.UJ& L314._)"
(D.O ftl1.9 y0:4=1.4 1..44 ____ The command of the Allah in this verse is very much clear that:--- 'Men are protectors and maintainers of women, because Allah has given the one more (strength) then the other, and because they support them from their means. Therefore, the righteous women are devoutly obedient and guard in (the husband's) absence what Allah would have guard them.'
Thus, it is clear that duty of the husband to maintain his were is conditional with performance of marital obligations. According to the clear command of Allah, it is the fundamental duty of a were to guard the Same like, in verse No. 7 of Surah Al-Talaq, the Almighty Allah has commanded a principle that reputation, property of her husband in his absence and also her on virtue.
The maintenance allowances should be according to the financial position of the husband. Verse No. 7 reads as follows:- {{URDU TEXT}} (DA 9 mi"-" C). C.34" j. 12/1 affil 4_115...?"/ 4.31 "1..y. j.r.
'Let the man of means spend according to his means and the man whose sources are restrained, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what he has given him. After a difficulty, will soon grant relief.'
There are number of the sayings of the Holy Prophet (Peace Be Upon Him) which are of binding nature. There is consensus of opinion between the eminent Islamic Scholars that the right of maintenance of a were is not unconditional rather it is conditional with discharging the obligations of the contract of marriage."
Therefore, while keeping in view the rising cost of the living, the maintenance allowance awarded to the minor to the tune of Rs. 2000/- per month is meager. She is entitled for the maintenance allowance to the tune of Rs. 4000/- per month as prayed by her in the suit from the date of her birth i.e. 17.09.2009. The appeal is partly accepted. The appeal to the extent of Asifa Kanwal is dismissed while the appeal to the extent of Dua Waleed is accepted. The decree is amended.
Appellant No. 2 is entitled to the maintenance allowance at the rate of Rs. 4000/- per month from 7th September, 2009.
25. In the appeals titled Nazam Hussain v. Zobila Kousar and Zobila Kousar v. Nazam Hussain, Zobila Kousar claimed for her two sons and herself, maintenance charges from 2008 to November, 2011 at the rate of Rs. 5000/- per head per month and future maintenance charges at the rate of Rs.
5000/- per month, per head. The Trial Court granted the maintenance charges to the plaintiffs at the rate of Rs. 1500/- per month, per head for the previous years, and plaintiffs No. 2 and 3 were granted at the rate of Rs. 1500/-from the date of institution of suit till the end of Iddat and thereafter, the respondents No. 2 and 3 were entitled for Rs. 3000/- per month, per head, from the date of decree. Nazam Hussain filed appeal from the said decree. The learned Single Judge in the Shariat Court set aside the decree to the extent of respondent Zobila Kousar for past maintenance.
The learned Single Judge has observed that Zobila Kousar failed to prove the cruel treatment, because the defendant was out of the country, therefore, she is entitled for maintenance charges and granted her the maintenance charges only for the period of lddat. It was forcefully argued by the counsel for Nazam Hussain that the plaintiff herself left the house of her husband-, therefore, she is not entitled for maintenance charges. The learned Judge in the Shariat Court also observed the same. The case of the appellant, Zobila Kousar is that there is misreading and non-reading of record. Although the appreciation of evidence is not the duty of this Court but in the circumstances for safe administration of justice particularly when it has been argued that there is misreading of record we have gone through the whole evidence.
Fazal Dad son of Farman Ali, the witness of the defendant in cross-examination stated that:- {{URDU TEXT}} Khalid Hussain son of Muhammad Saleem, brother and the attorney of Nazam Hussain appeared as witness and stated +n the cross-examination as under:--- {{URDU TEXT}} The plaintiff-appellant, Zobila Kousar appeared as witness and stated as under:- {{URDU TEXT}} This statement of the plaintiff was not challenged by the defendant in cross-examination. It is settled law that if a portion of statement of witness goes against the party and the party fails to cross-examine on the point, that portion of statement of witness shall be deemed to be admitted.
From the perusal of the above-referred statements of the witnesses and attorney of the defendant it is proved beyond doubt that the plaintiff, Zobila Kousar never refused to populate with her husband. She wanted to live in the house of her husband as his were. The defendant and his parents refused to populate her, therefore, she is entitled for maintenance charges. The findings recorded by the Shariat Court is the result of misreading and non-reading of the record. It is not maintainable.
26. The Shariat Court amended the decree and set aside the payment of maintenance charges to Zobila Kousar to the extent of past maintenance. It is proved that the plaintiff-appellant, Zobila Kousar tried her level best to populate with her husband but the defendant and his family members did not agree to reconcile, therefore, she is entitled for the past maintenance as granted by the Trial Court. The appeal filed by Zobila Kousar merits acqkeptance while the appeal filed by Nazam Hussain merits dismissal.
27. In the appeal titled Ashfaq Hussain v. Sajida Kousar, the Trial Court decreed the suit filed by Sajida Kousar declaring her entitled for maintenance charges of past 6 years at the rate of Rs.
2000/- and future maintenance at the rate of Rs. 3000/- per month, vide judgment dated 22nd December, 2011, while the suit for restitution of conjugal rights filed by the appellant, Ashfaq Hussain was also decreed. The main argument of the appellant is that the decree of restitution of conjugal rights has been passed in his favour, therefore, were is not entitled for maintenance charges. He relied upon PLD 1977 Lahore 90. In the case titled Bahadur Khan v. Bhag Bhari [PLD 1977 Lahore 90], it was observed as under:-- "11. As regards the failure of Mst. Bhag Bhari to refuse to live with Bahadur Khan petitioner despite the decree for restitution of conjugal rights I am of the considered opinion that she was not entitled to maintenance on this ground. It is duty of a Muslim were to perform her part of the obligation, so ordained by Qur'an and Sunnah and then to claim maintenance if her husband still chooses to neglect her. It was held in Said Badshah v. Mst. Sughran Bibi (PLD 1967 Pesh. 17), that husband could refuse to maintain his were when she refused to live with him. Similarly it was held in Mahta v. Aye Maung (AIR 1931 Rang. 111) that in case, were refused to live with her husband and still claimed the maintenance, a decree for restitution of conjugal rights in favour of the husband was always a good defence to application for maintenance. In view of the law laid down I am in full accord with the learned Additional Sessions Judge that order directing Bahadur Khan petitioner by the learned Magistrate to pay Rs. 25/- as maintenance to Mst. Bhag Bhari was improper and illegal. I accept the recommendation of the learned referring Judge and set aside this order to this extent."
It was observed in the referred case that decree for restitution of conjugal rights is a best defence to a suit for maintenance charges. In the earlier part of the judgment we have already differed with the view. Both the decrees are passed by the same Courts, are contradictory. At one side the Family Court reached on the conclusion that the respondent Sajida Kousar was ousted by her husband from the house and she time and again tried to populate with the husband but husband refused, while believing the evidence the decree for maintenance allowance was granted and on the other side, a decree of conjugal rights has been passed. The proper procedure was that the Trial Court should have consolidated both the suits and decided through a consolidated judgment so that contradictory decrees might not have been passed.
28. The respondent personally appeared in the Court and submitted that she wanted to live with her husband. She was mercilessly beaten and ousted of the house by her husband. She sent different persons for a number of times to the plaintiff's parents that he wants to populate with her husband but the parents of the appellant stated that they are not ready to bring her back in the house. They will not divorce her, she will live all her life like this. She further stated in the Court that she wants to live with her husband that is why she has not challenged the decree of conjugal rights by filing an appeal. Even today, she wants to live with her husband. At this the counsel for the appellant sought time for producing the appellant in the Court but on the next date of hearing he stated that the appellant has gone back to Dubai.
29. For doing complete justice we have decided to peruse the whole record. Sajida Kousar specifically alleged in her suit for maintenance charges that defendant at the end of February, 2003, mercilessly beat her, snatched her ornaments and articles of dowry and ousted her out of the house. She came to the house of her mother. Her mother inquired the plaintiff that why he has ousted her. He also beat her mother. Later on, Muhammad Rashid son of Ghulab Din was sent to the plaintiff for reconciliation. The plaintiff refused to bring her in the house. Zulfiqar, Muhammad Gulzaib and Muhammad Rashid, witnesses produced by the plaintiff stated that Sajida Kousar was ousted from the house by her husband. She was mercilessly beaten. Muhammad Rashid stated that the mother of Sajida Kousar sent him to the house of appellant for reconciliation and requesting that he shall populate the respondent with him. Her mother told that she is a widow and not in a position to bear the expenses of her daughter. The other witness also stated that mother of plaintiff, Sajida Kousar went to the house of appellant, but he refused to reconcile. Sajida Kousar, herself also stated in the cross-examination that she is ready to live in the house of her husband, if he maintains her. The cruelty and ousting of were from the house by the husband after mercilessly beating is proved from the evidence.
30. From the whole evidence it appears that the appellant filed a suit for restitution of conjugal rights only to defeat the maintenance suit filed by Salida Kousar. Further, this observation is fortified by the respective dates of filing of the suits by the contesting parties. Sajida Kousar filed suit on 29.03.2011, whereas Ashfaq Hussain filed his suit on 29.12.2011, about more than eight months of her desertion. The decree was passed on 22nd December, 2011. The period of more than 2 years has been passed, the appellant has never tried to get the decree for restitution of conjugal rights executed. He never tried to bring her back to his house. It is clear that the appellant has obtained the decree for restitution of conjugal rights only to defeat the suit for maintenance charges. From the conduct of the appellant it is evident and clear that he is using the decree of restitution of conjugal rights as a shield against the maintenance decree. The appeal has no merit. There is no illegality in the judgment passed by the Shariat Court. The appeal merits dismissal.
The result of the above discussion is that appeal No. 111 of 2012, titled Mst. Amreen v. Muhammad Kabir is dismissed with no other as to the costs. Appeal No. 13 of 2013 titled Asifa Kanwal v. Raja Waleed Asad is partly accepted in the terms indicated in para 24 with no order as to the costs.
Appeal No. 26 of 2013 titled Nazam Hussain v., Zobila Kousar and others is dismissed with no order as to the costs. Appeal No. 28 of 2013 titled Zobila Kousar v. Nazam Hussain is accepted in the term indicated in para No. 26 with no order as to costs and appeal No. 40 of 2013 titled Ashfaq Hussain v.
Sajida Kousar and others is dismissed with costs.