SAFDAR SALEEM SHAHID, J.----Through this constitutional petition the petitioner/plaintif f has challenged the judgment and decree dated 15.07.2013 passed by learned Judge Family Court Khushab, whereby her suit for recovery of maintenance was partially decreed and she was declared entitled to recover maintenance allowance only for the period of "Iddat" at the rate of Rs.9000/- per month (total Rs.27,000/) whereas her claim for recovery of Rs.3,00,000/- according to the condition mentioned in column No.19 of Nikah Nama was dismissed. Being aggrieved by the aforesaid judgment and decree the petitioner/plaintif f filed an appeal which was dismissed by learned First Appellant Court vide judgment dated 16.01.2014.
2. Brief facts of the case are that petitioner/plaintif f filed two suits against Muhammad Irfan respondent No.3/defendant In the first suit the petitioner/plaintif f claimed past as well as future maintenance allowance at the rate of Rs. 4000/- per month whereas in the 2nd suit she sought recovery of Rs. 3,00,000/- as per condition mentioned in column No 19 of Nikah Nama between the parties. The petitioner got married with respondent No.3 in November 2005 and she started to reside with him as a wife. It was alleged in the suit that from the very beginning the behaviour of the respondent No.3 was very cruel towards the petitioner and he used to disgrace her without any reason. The respondent No.3/defendant after abusing the petitioner/plaintif f had left the house and did not return towards the plaintif f. He did not pay any maintenance allowance to her. He is serving in P.A.F and is getting salary Rs.25000/- per month besides his income from agricultural land, thus he is a man of means and can easily pay the maintenance allowance as claimed.
3. In the 2nd suit the petitioner/plaintif f took the stance that the respondent No.3/defendant divorced her on 15.10.201 1 without any cause, therefore, as per condition No.19 mentioned In Nikah Nama, she is entitled to recover Rs.3,00,000/- from him.
4. The claim of the petitioner/plaintif f was controverted by respondent No.3/defendant through separate written statement. On divergent pleadings, issues were framed and evidence was led. On consideration of the matter the Trial Court through judgment dated 15.07.2013 passed a decree whereby claim of petitioner/plaintif f for recovery of past maintenance allowance was dismissed and she was held entitled to recover maintenance allowance only for the period of "Iddat" at the rate of Rs.9000/- per month (total Rs.27,000/) whereas her claim for recovery of Rs.3,00,000/- was dismissed. The petitioner/plaintif f challenged the aforesaid judgment and decree which was dismissed by learned First Appellate Cour t vide judgment dated 16.01.2014, which have been assailed through this petition.
5. The respondent No.3 has not entered appearance despite notices were served upon him, therefore, he is proceeded against ex-parte.
6. Arguments heard Record perused.
7. The admitted facts of the case are that the present petitioner was married to respondent No.3 on 27.11.2005 whereas alleged desertion took place on 14.08.2006 and on 15.10.201 1 she was divorced by respondent No.3. It transpired from the record that responden t No.3 is serving as Airman in P.A.F whereas the lady petitioner is highly qualified and she is a teacher in a school of Atomic Energy Commission Girote. It is evident from the evidence that it was settled between the parties that the after marriage, spouses shall live at Jauharabad and in this regard a separate house was purchased for the purpose of their residence jointly by the petitioner and respondent No.3 and they started living there at Jauharabad in that very house after the marriage where rift started.
8. Learned counsel for the petitioner in support of his version relied upon cases reported as "Shamshad Bibi v.
District Judge, Multan and 2 others (2012 YLR 277 Lahore), "Muhammad Zahid Khan v. Addl. District Judge Rajanpur and others" (2010 YLR 1120 Lahore), "Ghulam Dastageer v. Addl. District Judge, Gojra Toba Tek Singh and 5 others" (2010 YLR 1113), "Nasir Ahmed vs. Mst. Naseem Akhtar and 2 others" (2010 YLR 1746 Lahore), "Saeed Ahmad v. Shahzad Pervaiz and others" (2011 MLD 152 Lahore) and "Munir Ahmed v.
Bashiran Bibi " (2011 YLR 424 Lahore).
9. The petitioner/plaintif f has claimed maintenance allowance for the past period and for the period of Iddat. She claimed that the respondent No.3/defendant has never paid any maintenance to her since 13.08.2006. The petitioner took stance that respondent No.3/defendant himself left the house where as the respondent No.3 took the version that he was deserted from the house by the petitioner/plaintif f. Admittedly he filed suit for restitution of conjugal rights on 04.06.2010 prior to the filing of the suit of the petitioner/pla intiff wherein he stated that on 14.08.2006 he was expelled from the said house by the petitioner/plaintif f and her two brothers forcibly whereas the petitioner/plaintif f took the plea that she was deserted by the respondent No.3/defendant on 13.08.2006 and thereafter she was divorced by the respondent No.3/defendant on 15.10.20 11. It reflects that respondent No.3/defendant made efforts to reconcile the matter and patch-up the same but during the pendency of the suit, the respondent No.3 divorced the petitioner . Admittedly , the plaintif f/petitioner did not perform the matrimonial obligation towards respondent No.3/defendant since the year 2006. As per Sharia Law, a muslin wife who wilfully refused to perform the matrimonial obligation towards her husband, not entitled for any kind of maintenance allowance except the maintenance allowance for the period of "Iddat". It is in the evidence, that petitioner herself has admitted that the house where they were living was joint owner of the spouses but the respondent No.3 left the house, meaning thereby he was forced to leave the house. Certainly the evidence of respondent No.3 on this point is more convincing but in all circumstances, the respondent No.3 was under obligation to pay the maintenance to the petitioner .
10. The guidance is drawn from the Holy Quran wherein it is stated that (URDU TEXT) It includes, the dower , if any, other articles and the things under her use, and have something for future. Provision of Holy Qur'an regarding the maintenance is clear that " men are the protectors and maintainers of women because God has given the one more (strength) Than the other , and because they support them From their means." The Quran further in verse 65:7 takes up the issue in the following manner:- "Let the man of means spend according to his means: and the man whose resources are restricted, Let him spend according to what God has given him. God puts no burden on any person beyond what he has given him. After a difficulty , God will soon grant relief"
From the above Quranic verses, guidance can be taken that there is no upper or lower limit of maintenance, rather , the Quran ties the issue with the means of men, i.e if the person is well off he must maintain his wife B according to his standard. At the same time, if the means of the husband are limited he is still not absolved of his responsibility of maintaining his wife. He has to provide maintenance to his wife but according to his means. In the case of "Muhammad Sharif v. Additional District Judge and others" (2007 SCMR 49) wherein Hon'ble Supreme Court of Pakistan observed in para No.5 of order which is reproduced as under:- "that a Muslim husband is under a legal obligation to maintain his wife and if she is forced to live away from him for no fault on her part, even then he has to provide maintenance allowance to her"
So in view of the above mentioned citation and Quranic verses the husband is legally and morally bound to maintain his wife what so ever are the circumstances. Although it has been stated in the evidence of I respondent No.3 who appeared as D.W-1 that he was expelled from the house by the brothers of the petitioner and he had been trying to settle down the matter and in this regard he also filed suit for restitution of conjugal rights. The said suit was filed by him on 04.06.2010. In para No.3 of the said suit, respondent No.3 has admitted that on 14.08.2006 he was expelled from the house by the petitioner and her two brothers and since then he had been staying with his parents. This admission on the part of respondent No.3 reflects that he had not been maintaining the petitioner since the year 2006. Interestingly from years 2006 to June 2010 there was no contact between the parties in any way according to record and evidence. The respondent No.3 filed suit for restitution of conjugal rights on 04.06.2010 and on 12.06.2010 the petitioner filed suit for maintenance allowance. This also shows the state of affairs between the parties but the question arises, if the lady was not performing conjugal rights and was not obeying the respondent No.3, then why he kept silent for a long time and even did not move any application in the concerned U.0 for reconciliation or made any efforts in the Family or "Bradari" to settle down the matter between the spouses. Islam has given many rights to the spouse& to care for each other but so-far-as the matter of maintenance is concerned as to pay the husband and only bar not to pay the maintenance is disobedience of the lady and refusal of the lady to perform the matrimonial obligation but in this proposition neither any evidence nor through any other document, the efforts have been shown by the respondent No.3 to reconcile the matter , therefore, the lady was entitled for the recovery of past maintenance allowance. Both the courts below have committed an error while refusing the past maintenance allowance to the lady. So far as the quantum of the maintenance allowance is concerned, lady has demanded Rs. 4000/- per month mentioning that respondent No.3 is an employee in Pakistan Air Force and his monthly salary is Rs. 25,000/- but no such document has been tendered by the petitioner in this regard, even no pay slip has been produced to prove that his monthly income is Rs. 25,000/-. The respondent No.3 in his written statement as such has not denied this fact. Another important document is Tame of Nikah Nama annexed with the plaint where it has been written against the column No.17 that in case of dispute between the spouses, the husband will pay the maintenance allowance at the rate of Rs. 2000/- per month. The copy of Nikah Nama is available on the record but columns Nos.17 and 19 regarding the conditions have been denied by respondent No.3. The respondent No.3 has not challenged these entries of columns before any legal forum. It is observed that Nikah Nama was exhibited in evidence as Exh.P-1. There was no objection regarding its execution and completion. Certain columns were challenged by respondent No.3, but no reliable evidence was produced to prove the version by respondent No.3. Oral evidence on these objections was not sufficient to prove the same. These were also not challenged through independent suit before any competent forum. On the other hand, Nikah Khawn, the other witness of the Nikah Nama has supported the petitioner . So, there is nothing to dis-believe about the contents of the Nikah Parat Exh.P-1, so the version of the lady is correct.
Keeping in view the financial condition of respondent No.3 and the evidence on record regarding establishing the financial status of respondent No.3, the petitioner/plaintif f is held entitled for maintenance allowance for the past period w.e.f. 14-8-2006 to 4-6-2010. The findings of courts below on issue No.1 are modified to this extent.
However , the maintenance allowance of the petitioner for the period of Iddat has rightly been fixed and to that extent the findings of both the Courts below are correct. -
11. The other question which falls for determination in this petition is whether petitioner was entitled to claim amount of Rs.3,00,000/- according to condition mentioned in column No.19 of Nikah Nama. This question may be answered by examining the evidence of the parties in the proceedings before the Trial Court. The respondent No.3 denied the said condition allegedly mentioned in column No.19 of the Nikah Nama. During the course of evidence, father of respondent No.3 appeared and stated that the column No.19 of the said Nikah Nama was filled at belated stage and nothing was settled between the parties at the time of Nikah. The petitioner/plaintif f's assertion, however , does not find support from the statements made by PW-1. PW-4 and P.W-5 before the Trial Court. In this respect it will be pertinent to refer the observations recorded by the Trial Court in paragraphs Nos.22 and 24 of the impugned judgment which reads as under: - "If we read the statement of PW-1, PW-4 and PW-5 in juxtaposition, there is a clear contradiction between the statement of the witnesses, because the Nikah Registrar PW-4 clearly admitted that he has written the Nikah Nama, whereas the witness PW-5 stated that the Nikah Nama was written by a person belongs to Wattu, therefore, the plaintiff has miserably failed to establish that the condition in column No.19 was written at the time of solemnization of Nikah.
24. "As per Sharia and Law of Land, the marriage between the parties is always known as a social contract. It can only be enforced with the mutual consent of the parties. The contract of marriage cannot be enforced under the influence of such like terms and conditions. Even otherwise, a muslin husband has always right to divorce his wife.
The right of divorce of a muslin husband is vested by the Almighty Allah and the such right of husband cannot be restricted on the monetary terms and condition. The claim of plaintiff is absolute frivolous and against the basis principle of Sharia Law. The tie of marri age between the parties can only be maintained in peace and tranquil atmosphere and are not required to be bound by the stringent condition to remain in marriage bond, hence the plaintiff has failed to establish that she is entitled for the recovery of Rs. 3,00,000/- on the basis of document Ex.P1.
However , she is at liberty to launch civil suit against the defendant for recovery of above mentioned amount, if required. Hence this issue is decided in negative in favour of the defendant against the plaintiff, hence this issue is decided".
The observations made by the Court below are quite justified, legal, hence maintained.
12. In these attending circumstances, the impugned judgments of the trial Court as well as learned 1st Appellate Court are modified to the extent that petitioner-lady is held entitled to recover the past maintenance allowance at the rate of Rs.1500/- per month from the period commencing 14.08.2006 to 04.06.2010, whereas the findings of both the courts below to the extent of recovery of maintenance allowance for the period of Iddat (three months) at the rate of Rs.9000/- per month in toto Rs.27,000/- are maintained whereas the remaining claim of petitioner for recovery of Rs.3,00,000/ is declined. The findings of both the courts below do not suffer from any illegality on this point. With these observations, instant petition is partially allowed. No order as to costs.