' ROOH-UL AMIN KHAN, J.---Impugned herein is the judgment and decree of the Appellate Court/Additional District Judge-I, Bannu, dated 17-10-2012, whereby the judgment and decree of the learned trial Court/Judge Family Court Bannu dated 30-5-2012, has been upheld.
2. Facts of the case giving rise to this writ petition are that petitioner Mst. Shazia and minor Suleman Khan through his next friend (mother/the petitioner), filed a suit against the respondent Muhammad Nasir Khan for recovery of Rs,1,00,000 in cash, 30 tolas gold ornaments, as dower, vide Kabin Nama and Nikahnama dated 18-9-2005, maintenance allowance at the rate of Rs,4000 per month, for herself for the last 27 months and onwards, at the rate of Rs,2000 per month for minor Suleman for the last 24 months and onward and Rs,30,000 as medical expenses.
3. It's averred in the plaint that Nikah of petitioner Mst. Shazia was solemnized in lieu of Rs, 1,00, 000 in cash and 30 tolas gold ornaments, as dower vide Kabin-nama dated 18-9-2005. After Rukhsati in November, 2008, the attitude of the defendant-husband remained cruel towards the petitioner- wife, who used to maltreat and beat her and when she demanded her dower, he after giving her severe beating, shunted her out from his house, whereafter she was admitted by her parents in clinic due to said beating; that during the period of her expulsion, minor Suleman was born in her parents' house; that numerous Jirgas were sent to the defendant-husband to reconcile the matter but remained abortive, rather the defendant-husband without the previous permission of the petitioner, contracted second marriage with one Mst. Mehar Taja. The suit was contested by the respondent-husband by filing written statement raising therein variety of objections legal as well as factual. The plea of restitution of conjugal rights was also taken in the written statement by the respondent-husband. Pretrial reconciliation efforts made by the trial Court also proved unfruitful.
From the controversial pleadings of the parties, issues were framed, on which the parties adduced their respective evidence. On conclusion of trial, the learned trial Court, after hearing both the sides, decreed the suit of the petitioners for recovery of her dower as prayed for, maintenance allowance at the rate of Rs,2000 per month for the period as prayed for till payment of the dower, maintenance allowance of minor Suleman Khan at the rate of Rs:15.00 per month for the period as prayed for till his majority with 10% annual increase as well as decree of the medical expenses to the tune of Rs,20,000. Similarly, a decree for restitution of conjugal rights was granted in favour of the respondent-husband subject to payment of dower and past maintenance. Being discontented with the judgment and decree of the trial Court, both the parties filed separate appeals before the learned appellate Court, which were dismissed and the findings of the learned trial Court were upheld. Hence, this petition.
4. We have heard the arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
5. The claim of the petitioner-wife is that her Nikah with the respondent had been solemnized in lieu of dower amounting to Rs,1,00,000 in cash and 30 tolas gold ornaments vide Kabin Nama/Nikah- nama. She alleged her entire dower to be outstanding against the defendant while the defendant in his written statement has controverted her claim by asserting that only Rs,1,00,000 was fixed as her dower, which he had already paid to the petitioner. It is also asserted by the respondent that at the time of leaving his house, the petitioner-wife took along with her 23 tolas gold ornaments and dowry articles.
6. To prove her dower, petitioner produced Molvi Ali Zaman Nikah Khawan/Nikah Registrar as P.W.1, who produced Nikah-nama Exh.P.W.1/1 and deposed that dower of the petitioner was fixed as Rs,1,00,000 in cash. Kifayat Ullah Petition Writer, who executed Kabin-nama/ dower deed appeared as P.W.2, before whom the original Kabin-nama was produced in the Court, who admitted the same to be in his handwriting and correctly bear his as well as the signatures of the parties and its marginal witnesses, photo copy of which is Exh.P.W.2/1. He acknowledged the entry of said Kabin nama at page No,314 dated 18-9-2005 in his Register and to this effect he exhibited the extract of his register as Exh.P.W.2/2. The said Kabin-nama is in respect of 30 tolas gold ornaments. To substantiate the claim of the petitioner regarding fixation of dower as Rs,1,00,000 and 30 tolas gold ornaments, Muhammad Fazal Khan and Muhammad Salim Khan have been examined as P.W.3 and P.W.4, Both these witnesses support the version of the petitioner-wife. Petitioner Mst. Shazia recorded her statement as P.W.5 wherein she reiterated the contents of her claim.
7. From the statements of the above witnesses coupled with Nikah-nama and Kabin Nama followed by admission of the respondent-husband in his statement as DW.3, regarding correctness of both these documents, the factum of fixation of dower of the petitioner as Rs,1,00,000 and 30 tolas gold ornaments has been proved up to the hilt. Now the question for determination would be as to whether The dower has been paid or is still outstanding against the respondent-husband.
Petitioner (P.W.5) in Her cross-examination, categorically admitted that at the time of her marriage she was given gold ornaments, prepared by the respondent-husband, which she was wearing, as is evident from her snaps, however, she does not know its weight. Not an iota of evidence has been brought on record by the respondent-husband in rebuttal to prove that petitioner was not forcibly expelled from his house and that she at her own free-will left his house and took along with her 23 tolas gold ornaments and dowry articles. Though, the respondent has produced some receipts regarding purchase of gold ornaments but scriber/ shopkeeper of the same has not been produced in the witness box. During cross-examination he categorically admitted that the receipts produced before the Court do not pertain to the gold ornaments provided at the time of marriage to petitioner. The original words/version of the relevant portion of statement of the respondent- defendant is as under:-{{URDU TEXT}} ' In the circumstances, neither these receipts can be taken into consideration nor can be relied upon. The admission of the petitioner in her cross-examination that she was given certain gold ornaments at the time of her marriage proves that she had been paid some part of her dower out of 30 tolas gold ornaments. The weight of that part of the dower which the petitioner-wife admits in her statement can be determined from the statement of the respondent-husband as (DW.3), wherein he deposed that he had prepared 8 tolas gold ornaments to the petitioner-wife before marriage, which proves that the gold ornaments which the petitioner had been wearing at the time of her marriage was 8 tolas, as this part of the statement of respondent-husband remained unrebutted.
8. Thus, the findings of the two Courts below regarding outstanding of the entire dower are not based on proper appraisal of the evidence available on the record. The petitioner wife has only proved the non-payment of Rs,1,00,000 in cash, and 22 tolas gold ornaments as her dower on the part of the respondent-husband for which she is entitled.
9. It is settled law that where the husband refused to pay dower to the wife on demand, essential legal implication for non-payment of dower would be that wife will cease to have obligation to live with her husband but husband would be duty bound to maintain her during the period of separation. In the instant case, the petitioner-wife has proved the non-payment of her dower as such she was justified to live separately.
10. The history of dower is as old .As mountains origin. It came into being way back pre-Islamic era.
Much before the pre-Islamic day, the husbands used to despoil/deflower their wives and then to turn them out a drift, absolutely ,helpless and without any means to survive honourbly. With the evaluation of tribal system and when a little wisdom prevailed then it became customary condition to fix some dower of the validity of marriage but for the enforcement of such right, the wife was having no efficacious remedy as there was no binding custom/sanction of any rule behind it thus, her customary obligation was oftenly disregarded without heck as the tribal system by then was unorganized being bereft of codified rules. On the advent and promulgation of Islam this detestable practice was forbidden and was declared unjust towards the fair sex as is evident from different verses of the Holy Qur'an in Sura Nisa. Dower or Mahr may be defined to be as sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage. Dower is denomination of property, consideration of Maal which is paid, fixed or prescribed or undertaken to be paid to wife by husband at the time of marriage. Dower is that financial gain which the wife is entitled to receive from her husband by virtue of marriage contract itself whether named or not in the contract of marriage in which case proper dower would become due.
11. It is borne out from the record that the matrimonial tie of the parties still subsists and the petitioner-wife has proved through cogent documentary as well as oral evidence the non- payment of her dower and in such circumstances her separate living from her husband was justified, for which period she can legally claim her maintenance. Petitioner-wife has brought sufficient evidence which proves that hectic efforts had been made to reconcile the matter with the respondent-husband through Jirgas but it was the respondent-husband who did not rehabilitate her during this period. The factum of second marriage of the respondent is also proved on record through evidence. The respondent-husband has not brought an iota of evidence much less cogent and confidence inspiring to prove that the petitioner-wife abandons his conjugal domicile without any valid reason or that she was disobedient to him without a good cause. Rather, it is established on record that the desertion of the petitioner-wife from the respondent's abode is involuntary, not caused by any misconduct on her part, therefore, she being in the matrimonial tie of the respondent-husband is legally entitled to maintenance, for which the respondent is legally and morally bound to pay the same, because in Islam a husband is bound to maintain his wife throughout the period she remains in matrimonial bonds with him. The Maintenance is neither the nature of gift nor a benefit, but is an undeniable legal obligation of husband to maintain his wife. It is the duty and moral obligation of a husband to provide maintenance to his wife. When. a woman surrenders herself into the custody of her husband, it is incumbent upon him thenceforth to supply her with food, clothing: and lodging whether she be a Muslim or an infidel, because such is the precept in Holy Quran. The maintenance is considered a debt upon the husband conformity with his tenet.
12. The petitioner-wife has also proved through cogent evidence that during the period of her separation minor Suleman Khan was born in her parent's house and she had borne Rs,30,000 as expenses of delivery. The respondent-husband has failed to produce any evidence to prove that it was he who bore these expenses, therefore, the findings of the two Courts below regarding medical expenses on delivery are just and based on proper appraisal of evidence, which do not warrant interference of this Court.
13. So far as maintenance allowance of minor Suleman Khan is concerned. Admittedly, he is the son of the respondent and he being father is bound to maintain him till the age of his majority. Islam enjoins duty upon a father to maintain his son until he attains the age of puberty. Mere fact that the son is in custody of his mother is not a valid ground for father to withhold maintenance.
Maintenance of children is the obligation of father as long as he is in position to provide for them and they have no independent means of their own. According to injunctions of Islam a father is bound to maintain his sons until they have attained the age of puberty and to maintain his daughters until their marriage. So long as the children are with the mother and unless their custody is disturbed in result of proper legal proceedings, liability of father to provide them adequate maintenance is absolute and is not dependent or affected by their residents. 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 in with the terms of the agreement. On the contrary, maintenance is an obligation which is one of the essential ingredients of arriage, liable to suspension or forfeiture under certain circumstances. The obligation of the husband to maintain his wife has been derived from Verse No,232 of the Sura Albaqra which enjoins upon the father of a suckling child to feed and clothe his wife.
14. Now the question for determination would, be as to whether the maintenance allowance determined and fixed by both the Courts below for petitioner-wife and her minor son Suleman Khan would be sufficient to meet the ends of justice. It is worth to note that Islam does not compel a person to do an act beyond his capacity, therefore, social status of husband and level of legitimate financial sources are imminent factor for deciding the quantum of maintenance and the same !Cannot be ignored. The learned Family Court on the basis of evidence on record has determined maintenance allowance of both the petitioners which has been concurred by the learned appellate Court by deeply considering each and every aspect of the case, therefore, it would not be appropriate to disturb these 'findings in exercise of constitutional jurisdiction.
15. In the written statement the respondent-husband has taken the plea of restitution of conjugal rights which has not been denied by the petitioner-wife. She has never claimed dissolution of marriage nor any stance that she had been divorced. Rather, it appears from her statement and she is ready to rehabilitate with the respondent-husband subject to payment of her dower. Thus, both the Courts below have rightly appreciated the evidence and H thereby passed a decree of restitution of conjugal rights in favour of the respondent-husband subject to payment of dower and past maintenance.
16. For what has been discussed above, the findings of both the Courts below regarding decree to the extent of entire dower of the petitioner-wife, being the result of misreading and non-reading of evidence, are modified in the manner that petitioner-wife is only held entitled to the decree for recovery of Rs,1,00,000 in cash, and 22 tolas gold ornaments, as her dower while rest of the findings of the two Courts below being based on proper appraisal of evidence, are maintained. With this modification, this writ petition is disposed I of accordingly.