MUHAMMAD NAEEM ANW AR, J.---Impugned herein is the judgment and decree of learned Additional District Judge-V , Bannu dated 06.12.2018, whereby through consolidated judgment appeals filed by petitioner as well as respondents were dismissed, consequen tly the judgment and decree of learned trial Court dated 28.04.2018 was maintained.
2. Facts forming the background of the instant writ petition are that respondent No.1 filed a suit for recovery of 10- tolas gold ornaments as dower , recovery of past maintenance allowance amounting to Rs. 12,60,000/- for last 07 years @ Rs. 10,000/- per month and recovery of maintenance allowance of minor/ respondent No.2 @ Rs.5000/- per month. It was averred in the plaint that Nikah between the parties was solemnized some 15 years ago wherein her dower was fixed as 10-tolas gold ornaments. After Nikah, Rukhsati had taken place and parties joined each other but few months later the relation between them became strained when it revealed that the petitioner is a pathetic little lecher and when requested by respondent No.1 to refrain himself from such activities, he was enraged and started cursing, insulting and physically torturing her; that during subsistence of marriage they were blessed with four daughters and a son, however , only respondent No.2 is alive; that they lived with each other for 08 years whereafter when she demanded 10-tolas gold ornaments (her dower) she along with minor were ousted, since then they are residing with her parents but were never paid any maintenance allowance; that some 04 years ago from the institution of suit the petition er has contracted second marriage with Mst. Hajra which left her with no other option but to approach to the court for redressal. Petitioner appeared and contested the suit through his detailed written statement, whereby he controverted the allegations of respondent No.1 and prayed for a decree for restitution of conjugal rights. It is pertinent to mention here that he alleged that Rs.15000/- was fixed as dower which was paid to her and now nothing is outstanding against him whereas respondent No.1 is leading a self deserted life when she by her own sweet will has left her abode. On conclusion of evidence, learned trial court through its judgment and decree dated 28.04.2018 decreed her suit by granting a decree for recovery of Rs.15000/- as prompt dower , past maintenance for respondent No.1 for the last 04 years prior to institution of suit till the decision of case @ Rs. 2800/- per month along with future maintenance from the date of decision till the subsistence of marriage @ Rs.3000/- per month with 05% annual increase. Likewise, a decree for recovery of past maintenance for last 04 years prior to institution of suit till decision thereof @ Rs. 2800/- per month for respondent No.2 along with future maintenance from the date of decision till her marriage @ Rs.3000/- per month with 05% annual increase. Decree for restitution of conjugal rights subject to the payment of dower and outstanding maintenance allowance was also passed in favour of present petitioner .
3. Both the parties being aggrieved from the judgment and decree of the learned trial court have preferred their separate appeals which were decided through consolidated judgment and decree dated 06.12.2018 by learned Additional District Judge-V , Bannu, whereby both the appeals were dismissed, however , only the petitioner filed the instant petition.
4. Learned counsel for petitioner contend ed that the findings of the learned courts below regarding maintenance allowance of respondent No. 1/plaintif f are not in consonance with law because she is leading a self deserted life as she was never ousted by the petitioner and in this scenario when the wife has willfully and deliberately started residing away from her husband without any legal justification is not entitled for maintenance allowance in term of section 277 of Muhammad Law. Next, he contended that learned trial court has, given no findings regarding issue No.5, therefore, the findings of the learned trial court on issues Nos.3 and 4 are without any substance, hence, unwarranted. Lastly , he added that as the relationship between the parties is still intact, therefore, petitioner is ready to provide a separate accommodation from a portion of his house to respondent No.1 qua the payment of maintenance allowance as decreed by the courts below .
5. As against that, learned counsel for respondents Nos. 1 and 2 contended that though the findings of the learned appellate court were not challenged by respondent No.1, however , she is entitled for past maintenance allowance on the ground of non-payment of dower in accordance with sharia and the dicts laid down in the case titled "Sher Zaman v. Mst. Mahzari and 2 others" (2018 YLR 128) and requested that the findings of both the courts below may be modified by granting a decree for past maintenance for seven years.
6. Arguments heard; record perused. Insofar as the contention of learned counsel for respondents for past maintenance allowance of respondent No.1 especially when she is living apart from her husband due to non- payment of dower , suffice it to say that quantum of dower remained disputed between the parties as respondent No.1 has taken the plea that her dower was fixed as 10-tolas gold ornaments for which she relied upon her own statement and the statement. of Mst. Hassan Bibi daughter of Mir Saadat Khan as PW-2. Respondent No. 1 in her cross-examination admitted that she has got no proof for fixation of dower as 10-to la gold. Nikah Khawan could be the best witness but for the reasons best known to her he was not produced. PW-2 in her examination-in-chief has stated nothing pertaining to fact in issue, however , in her cross-examination she adduced that one Muhammad Sabir was the witness of fixation of dower in whose presence dower was fixed but he too was not produced by the respondent No. 1. Therefore, neither respondent No.1 has been able to prove her, stance regarding fixation of quantum of dower as 10-tolas gold nor evidence to this effect was placed on record. Petitioner has produced Ihsanullah alias Sanaullah, who deposed that Nikah was performed after Isha prayer and dower was fixed as Rs.
15000/-. Keeping in view the admission on the part of petitioner regarding fixation of dower as Rs. 15000/- and failure on the part of respondent No.1 to prove the fixation of the quantum of dower amount, both the courts below have rightly fixed the dower as Rs. 15000/-. Due to non-availability of written Nikah Nama, which was admittedly not prepared at the time of Nikah, learned courts below have rightly relied upon the admission of petitioner pertaining to the fixation of dower as Rs. 15000/- as prompt and these findings were not challenged by respondent No.1, as such the findings of learned courts below have attained finality . It is by now well settled that an issue decided against a party , if not challenged, shall attained the finality . Reliance in this regard is placed on the cases reported as Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah (1996 SCMR 1862 ) and Kanwal Nain v. Fateh Khan (PLD 1983 SC 53). Thus, when the fixation of dower itself was disputed therefore, non- payment thereof could not provide a justification for respondent No. to lead a separate life, apart from her husband.
Notwithstanding the basic theory as elaborated by Hamilton's Hedaya Book IV, Volume I where, at page 394, it is stated as follows: "If a woman refuses to surrender herself to her husband on account of her dower (that is on account of its not having been paid to her), her maintenance does not drop, but is incumbent upon the husband, although she be not yet within his custody , since her refusal is only in pursuance of her right, and consequently the objection to the matrimonial custody originates with the husband." and the settled principle as per cases reported as PLD 1957 Dacca 242, 1985 MLD 310, 1999 YLR 615, 1999 CLC 878, 2000 MLD 504 that "If a woman refuses to surrender herself to her husband on account of her dower (that is on account of its not having been paid to her), her maintenance does not drop." But in my humble view this principle could only be applied with two conditions, firstly , that dower was fixed, settled, admitted, and undisputed and secondly , it was prompt. Until the factum of dower was settled/decided, the non-payment thereof could not be held as a ground for entitlement of respondent No. 1 for maintenance.
8. Another equal significant aspect of the instant matter is the recent judgment of the apex court in case titled Muhammad Jamil and others v . Mst. Sajida Bibi and others ( PLD 2020 SC 613 ) wherein it was held that: "It is now abundantly clear that the entire amount of dower fixed at the time of marriage whether prompt or deferred is immediately payable on account of second marriage. The petitioner No.1 by entering into second marriage without seeking prior permission either from the existing wife i.e., respondent No.1 or the Arbitration Council, the dower even if it is termed as deferred or prompt has become payable without any delay . Otherwise, the provision of section 6 of the Muslim Family Laws Ordinance, 1961 is in consonance with the injunctions of Islam."
Irrespective of the fact that petitioner has contracted second marriage but while deriving wisdom from the case law (supra), as in the instant case the quantu m of dower was not fixed therefore, till its determination by the decree of the learned Family Court through its order dated 28.04.2018, the kind of dower could not be held as prompt. For convenience Section 6(5) (a) of Muslim Family Laws Ordinance, 1961 is reproduced as under: "Polygamy 6. (1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.
(5) Any man who contracts another marriage without the permission of the Arbitration Council shall?
(a) Pay immediately the entire amount of the dower , whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue;"
A look at the ibid provision of law makes it abundantly clear that sub-clause 5(a) of section 6 of MLFO, 1961 provides that when a person contracts second marriage during subsistence of earlier one and without permission of arbitration council he would have to pay immediately the entire amount of dower irrespective of the fact that whether it is deferred or prompt and if such dower is not paid would be recovered as an arrears of land revenue.
For the application of the above condition for payment of dower it must have been settled. Therefore, the findings of learned courts below for awarding of maintenance on issue No. 3 are not corre ct. Though the dower is prompt but from the date of decree and the findings of the court could not be given retrospective ef fect.
9. Apart from above, the controversy of maintenance could be looked into from another angle, i.e., sections 277 and 278 of Muhammadan Law which reads as: "277 Husband's duty to maintain his wife.---The husband is bound to maintain his wire (unless she is too young for matrimonial intercourse,) so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to his, or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt (S.290) dower , or she leaves the husband's house on account of his cruelty ."
The provisions of Muhammad Law are self-explanatory , open only to one interpretation, vivid, manifesting that the duty of husband to maintain his wife is subject to the wife faithfulness and obedienc e subject to an exception which is non-payment of prompt dower . Likewise, section 278 reads as: "278 Order of maintenance.---If the husband neglects or refuses to maintain his wife without any lawful cause, the wife, may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, 1898, section 488, in which case the court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees."
10. The ibid section clearly signifies that for the purpose of past maintenance besides negligence on the part of husband there must be an agreement between the parties or proved ouster on the part of husband. In the matter in hand neither the respondent No.1 could prove that she was ousted by the petitioner not alleged cruelty was proved and to that effect the findings of the courts below were not challenged by her. In such an eventuality , she could not be held entitled for past maintenance allowance, thus, the findings of learned trial court pertaining to past maintenance of respondent No.1 (plaintif f No.1) are unwarranted, not in cons onance with law, however , the moment learned trial court has fixed the quantum of dower as Rs. 15000/- then factum of second marriage of the husband in contravention with section 6(5) of the Ordinance, 1961 would apply and while deriving wisdom from the judgment of the apex court in Jamil's case, (PLD 2020 SC 613) petitioner was duty bound to pay the maintenance allowance, the moment it was ordered, non-payment thereof has provided a lawfu l justification to the wife to lead separate life until it is paid, therefore, from the date of decree till subsistence of marriage respondent No.1 was rightly held entitled for maintenance allowance as fixed by the learned trial court. So far as the contention of the learned counsel for petitioner that without challenging the findings of the learned appellate court the amount of maintenance allowance may be enhanced, this submission of the learned counsel for respondents is without any justification and substance.
11. It must be mentioned that to the extent of maintenance allowance of minor/ respondent No.2, learned counsel for petitioner has candidly stated at the bar that he does not press his petition as against him, so to the extent of respondent No.2 the instant petition stands dismissed being not pressed.
12. Before parting with the judgment it must be mentioned that during the course of arguments petitioner stated at the bar that the house in which he is residing measuring 06-marlas was the ownership of his father and after his death it has been devolved upon all the legal heirs including his 02 brothers, 05 sisters and a mother and his share in the house is 14/88, he would not only pay the maintenance allowance of respond ent No.1 but would also transfer his share i.e. 14/88 in respondent's name through mutation and provide a separate portion for her accommodation in the very house subject to her reconciliation but even then respondent No.1 shown her reluctance to shift her abode there.
13. In view of the above, the instant petition is partially allowed. Maintenance allowance granted in favour of respondent No.1 prior to institution of suit for 04 years is hereby held unjustified, unwarranted, illegal and against the law, therefore, same is hereby set aside, however , maintenance allowance after institution of the suit was rightly decreed in favour of respondent No.1 against petitioner and to this extent the instant petition stands dismissed.
Parties are left to bear their own cost.