' ATIR MAHMOOD, J.---Brief facts of the case are that on 6-9-2010, respondent No,2 Mst. Shabana filed a suit for recovery of dower of gold ornaments weighing 25 tolas as well as for recovery of maintenance allowance against the petitioner on account of bad behaviour of the petitioner. The petitioner contested the suit by filing written statement. On the other hand, the petitioner filed a suit for restitution of conjugal rights. Both the suits were consolidated. Out of divergent pleadings of the parties, issues were framed. Evidence led by the parties was recorded. After hearing both sides, learned Judge Family Court, Faisalabad vide judgment and decree dated 27-6-2011 decreed the suit for recovery of dower of 25 tola gold ornaments and maintenance allowance at . The rate of Rs,2000 per month from the institution of the suit to the expiry of iddat period whereas the suit of the petitioner for restitution of conjugal rights was dismissed. Feeling aggrieved, both sides filed appeals. Vide consolidated judgment and decree dated 28-1-2012, learned lower appellate court dismissed the suit of the petitioner to the extent of dower whereas he' dect'bed his suit to the extent of restitution of conjugal rights subject to payment of dower as well as maintenance allowance. On the other hand, appeal of the respondent for enhancement of maintenance allowance was partially accepted and she was declared entitled to recover maintenance allowance Rs, 10,000 per month with 8% per annum increase from March, 2010 to subsistence of the marriage. Hence this writ petition.
2. Learned counsel for the petitioner inter alia contends that the learned courts below have failed to appreciate the evidence adduced by the petitioner, particularly objection No,1 raised by him in his written statement that the golden ornaments weighing 25 tola were handed over to the plaintiff lady at the time of nikah as well as the entry of column No,16 which unambiguously states that the ornaments were given to the plaintiff lady at the time of solemnization of nikah; that the learned lower appellate court has also not considered the entry of column No,17 of nikahnama whereby the maintenance of the plaintiff lady was fixed as Rs,2000; that entries made against Column Nos.13 and 16 clearly show that original amount of dower was fixed as Rs,300,000 and as an alternate measure, golden ornaments weighing 25 tola were fixed as deferred dower but this aspect of the case has totally been ignored; that the deferred dower is only payable at the time of dissolution of marriage either in case of divorce or death of the husband; that the plaintiff has not resorted to dissolution of marriage and the petitioner is still ready to resettle the plaintiff in his house, therefore, the suit of the plaintiff for restitution of conjugal rights should have been decreed without any precondition; that both the learned courts below had not read the oral as well as documentary evidence available on record; that there is misreading and non-reading of evidence, therefore, this writ petition be allowed, the impugned judgments and decrees be set aside and the suit of the respondent be dismissed.
3. On the other hand, learned counsel for the respondent has vehemently opposed this writ petition and fully supported the impugned judgments and decrees. It has been contended that the dower of the plaintiff-respondent was fixed as 25 tola gold ornaments in lieu of Rs,300,000., therefore, she is entitled to recover the dower of 25 tola gold ornaments; that it has been written in the nikahnama that the deferred dower on demand; that the value of rupee has depreciated heavily, therefore, it would be just and fair that the plaintiff be given alternate dower of 25 tola gold ornaments to meet the ends of justice; that the petitioner is a Manager in the National Bank and drawing handsome salary therefrom; that the petitioner is owner of 100 kanals of land, car, tractor with trolley, motorcycle etc.; that the petitioner also owns 50 buffalos; that maintenance of wife always commensurate with resources and status of the husband, therefore, her maintenance was rightly increased to Rs,10,000 by learned lower, appellate court which the petitioner can easily pay.
He avers that this writ petition has no substance and the same be dismissed.
4. Arguments heard. Record perused.
5. The point for determination by this Court is as to whether the respondent 140.2 is entitled to demand and get the dower amount mentioned in the nikahnama from the petitioner and as to whether the respondent No,2 is entitled to claim and get the maintenance allowance as granted by the Family Court. The contention of the learned counsel for the petitioner in the beginning was that the Family Court has not framed the issues in accordance with the pleadings of the parties as the objections raised in the written statement were not taken into consideration in their true perspective and as such the case was liable to be remanded but in order to save the parties from agony of further litigation, it was agreed between the parties that this 'case be decided in accordance with the available record. The issue No,1 pertains to the first question, there is no dispute between the parties that the amount was fixed as deferred dower. The contention of learned counsel for the petitioner that A golden ornaments weighing 25 tolas were handed over to the plaintiff-lady at the time of nikah is contradictory to the stand taken by him that haq mehr was deferred and as such the claim of respondent No,2 was unjustified for the simple reason that if it is presumed that the golden ornaments were given at the time of nikah/rnarriage then the dower amount cannot be said to be deferred dower. The petitioner cannot be allowed to aprobate and reprobate at the same time. The second stance of the petitioner that the dower amount was deferred one, it could not be granted by the courts below as the deferred daver can only be claimed after the dissolution of marriage or in case of death of the husband has force. In this regard para 290 of the Muhammadan Law is relevant which is reproduced as under:- "290 "Prompt" and "deferred" dower.---(1) The amount of dower is usually split into two parts, one called "prompt," which is payable on demand, and the other called "deferred" which is payable on dissolution of marriage by death or divorce. (underline is mine)
(2) Where it is not settled at the time of marriage whether the dower is to be prompt or deferred, then according to the Shia law, the rule is to regard the whole as prompt but according to the Sunni law, the rule is to regard part as prompt and part as deferred, the proportion referable to each class being regulated by custom, and, in the absence of custom, by the status of the parties and the amount of the dower settled".
' The plain reading of the para above reveals that the deferred dower can only be claimed after the divorce takes effect or there is death of the husband. In a similar case decided by the Hon'ble Supreme Court titled Saadia Usman and another v. Muhammad Usman Iqbal Jadoon and another (2009 SCM R 1458) it has been held as under:-- "Thus, we are of the opinion that prompt dower is payable on demand during the subsistence of the marriage tie whereas the deferred dower is payable on the time stipulated between the parties, but where no time is stipulated, it is payable on dissolution of marriage either by death or divorce. But, the deferred dower does not become "prompt" merely because the wife has demanded it. In the instant case, the total amount of dower was fixed at Rs,I0,00,000. The prompt dower is to the tune of Rs, 5,00,000 was paid at the time of marriage in the shape of golden ornaments, etc. Since no time was fixed for payment of the deferred dower of Rs,5,00,000, it would be payable in the eventuality of dissolution of marriage either by death or divorce". (underline is mine)
' In view of the dictum laid down by the Hon'ble Supreme Court of Pakistan, the impugned judgments and decrees of the courts below to the extent of grant of dower amount are not .Sustainable in the eye of law.
6. As remains, the question of maintenance allowance, it has now been a settled principle of law that the husband is liable to maintain his wife according to his means and keeping in view the expenditures which are normally incurred upon in the every day life. Admittedly, the marriage took place in the year 1999 and the petitioner undertook to pay an amount of Rs,2000 per month as maintenance allowance which shows that he is a man of means and was in a position to maintain his wife by making the payment of Rs,2000 per month. With the span of time and a price-hike in the country the demand of respondent No,2 was reasonable for increase in the maintenance allowance. It has nowhere been denied by the petitioner that he is not a man of means though he has confronted the respondent No,2 with his pay slip wherein his salary is being reflected as Rs,21,800 but still this pay slip has not been proved in accordance with law. When the defendant appeared as DW-1 as his own witness, he did not produce his pay slip and also did not depose about his salary. In his cross-examination, he did not deny that he is owner of 78 kanals of landed property rather he concealed this fact by stating that if his parents had transferred some property to him he is ignorant about the same. Accordingly, it is held that the respondent No,2 is entitled to have the maintenance allowance from the petitioner.
7. In view of the above discussion, this petition is partly allowed, The judgments and decrees of the courts below to the extent of return of dower amount are set-aside and suit of the respondent No,2 is dismissed whereas to the extent of payment of maintenance allowance the judgment and decree of the appellate court dated 28-1-2012 is upheld. The decree for restitution of conjugal rights passed by the appellate court is upheld with a modification that it will be subject to payment of past maintenance allowance and the condition to pay the dower amount is set aside.