MUHAMMAD GHAZANFAR KHAN, J.---Through this Writ Petition, the petitioner questioned the validity of judgments and decrees of the respondents Nos.2 and 3 i.e. The learned Civil Judge/ Judge Family Court, Serai Naurang dated 25.09.2012 and Additional District Judge-II, Lakki Marwat dated 14.06.2013, whereby former partially decreed the suit of respondent/plaintiff, while the latter dismissed the appeal.
2. Brief but necessary facts giving rise to the instant Revision Petition are that the respondent/wife Nekam Zada (hereinafter called the respondent) instituted a family suit No.3/FC against the petitioner/husband (hereinafter called the petitioner) for the dissolution of marriage, payment of three Tolas gold ornaments as dower and maintenance at the rate of Rs. 5000/- for the last six months and onward along with return of her dowry articles.
3. On appearance, the petitioner contested the iuit by submitting written statement. After failure of pretrial reconciliation efforts, the learned trial court framed six issues apart from relief. Both the parties produced their respective evidence, as they wished. On conclusion of trial, the learned Judge Family Court after hearing arguments of both the learned counsel for the parties vide its judgment and decree dated 25.09.2012 partially decreed the suit No.03/FC and respondent/wife held entitled to the decree for the recovery of 02 Tolas gold ornaments maintenance at the rate of Rs.2000/- per month for the period of six month prior to the institution of the suit and for the period during and after the institution of the suit till her joining the house of her husband.
4. Aggrieved from the said judgment and decree of learned Family Court, both the parties have preferred their appeals before the Appellate Court. The learned Appellate Court after hearing the counsel for the parties, dismissed the appeal of the petitioner while the appeal of the respondent was partially allowed and the respondent was held entitled for dissolution of Nikah, which is impugned herein only by the petitioner through instant constitutional petition.
5. Learned counsel for the parties heard and with their assistance record perused.
6. The record shows that the learned Appellate Court has dissolved the marriage on ground mentioned in Section 2 (viii) subsection 'f' of the Dissolution of Muslims Marriages Act, 1939 which reads: "(f) If he has more wives then one, does not treat her equitably in accordance with injunction of Qanun;"
7. The perusal of plaint shows that this ground was never taken by respondent/plaintiff in her plaint, para No.3 of her plaint is reproduced as under:-- ' Secondly at the time of evidence while deposing as PW-2 the plaintiff/respondent has stated that and at the end of her statement she has said that {{URDU TEXT}} and at the end of the her statement she has said that {{URDU TEXT}}
8. Except above said assertions there is nothing on the record to show that plaintiff has ever solicited dissolution of marriage on ground 'f' of section 2 of the act ibid, so, marriage has wrongly and illegally been dissolved by the Appellate Court on said ground. Furthermore the respondent/plaintiff was present in the Court at the time of hearing and on a quarry of the Court that whether she is ready to live with her husband/petitioner if she is given separate residence, maintenance etc? She totally refused to accompany the petitioner at any cost. The trial Court has passed the decree of restitution of conjugal rights in favour of the petitioner keeping in view the statement of the plaintiff/respondent wherein she has stated that:- {{URDU TEXT}} 9.So in such circumstances the respondent was not entitled to the decree for dissolution of marriage on the ground mentioned above, hence the judgment and decree of appellate Court is without substance against the law and norms of justice, the proper way for the appellate court was to pass a decree for dissolution on the basis of khullah so, in such eventuality the decree passed in favour of respondent for dissolution of marriage is maintained but on the basis of khullah so, in such situation, the respondent has to relinquish the dower decreed in her favour by the trial Court confirmed by the appellate court. As both the courts below have concurrently decided that dower is unpaid, so, the petitioner is exonerated from payment of dower decreed against him and to that extent decree of both the courts below are set-aside.
10. Now we will take the decree for payment of maintenance allowance. According to prevailing law and Shriah a refractory wife is not entitled to maintenance unless she returns to her conjugal abode and obeys the lawful demands of husband. In the instant case the "Nashooz" on the part of respondent stands proved, As though the husband/petitioner is ready to maintain her as per her demands referred to above, but in the open Court she refused to restart her marital life with the petitioner. She has failed to prove any sort of cruelty mentioned in Section 2(viii)(a) of Dissolution of Muslim Marriages Act, 1939. So the decrees passed by both the Courts below regarding grant of maintenance to the respondent are against the law and Shariah hence, stand dismissed. However, the petitioner is entitled to receive maintenance at the rate of Rs.2000/- per month only for the period of Iddat. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.