MUHAMMAD AAMIR NAWAZ RANA, J. Respondent No.1 had filed a suit for dissolution of marriage on the basis of non-payment of maintenance before learned Civil Judge, Pasni ("trial Court") alleging therein that she had married with petitioner No.1 twenty seven years ago and out of wedlock, one son and three daughters were born. It was further alleged by respondent No.1 that at the time of Nikah, 100 Misqal Gold was fixed as dower amount (Haq Meher), out of which 15 Misqal Gold was paid by petitioner No.1 and 85 Misqal Gold is still outstanding against him. It was further alleged by respondent No.1 that the relationship between her and family members of petitioner No.1 became sore and strained, consequently she was forced to leave the house of petitioner No.1 and since then petitioner No.1, who is mentally handicapped, is not paying maintenance to her and to her daughter Gul Zaib, therefore she was compelled to file the suit.
2. The suit was contested by the petitioners on legal and factual grounds. Out of pleadings of the parties, the trial Court framed the following issues: A) Whether the plaintiff is entitled for the dissolution of marriage on grounds of the non-payment of maintenances allowance and the insanity of the defendant No. 1?
B) Whether the plaintiff is entitled for the relief claimed?
C) The relief?"
3. On conclusion of trial, vide judgment and decree dated 26.02.2021, the suit filed by respondent No.1 was decreed in the following terms: "---In view of the above discussions, this court is of the considered opinion that plaintiff has proved her case of non provision of maintenance by her husband for more than two years, therefore the marriage subsisting b/w the plaintiff and defendant No.1 is hereby dissolved on the basis of non-provision of maintenance for a continues period of two years, under the dissolution of Muslim Marriages Act, 1939, with the direction to defendant No. 1 through his attorney defendant No.2, to pay the outstanding eighty five (85) Misqal gold dower (per Misqal gold of Rs, 500/-) total forty two thousand five hundred (42500) to plaintiff and also to pay the previous and present maintenance of the plaintiff and her daughter Gul Zaib, till the decision in this suit, to the tune of five lac and ten Thousand Rupees (Rs.510000), at the rate of twenty five hundred rupees monthly (Rs2500). The plaintiff has not prayed for the past and present maintenance allowance in her prayer clause, but given the facts of the present case and the demands of justice and fairplay the court can grant the ancillary relief even if not prayed for and reliance in this regard is going to be placed on case of 1987 CLC 482 (Karachi). ----(a) Civil Procedure Code (V of 1908), S.34 & O. VII, R. 7---Interest on decretal amount, grant of- --Jurisdiction of Court---Court is empowered to award ancillary relief even if same was not prayed for---Court, held, was entitled, rather justified in granting interest on decretal amount adjudged, in suit for payment of money, from date of filing of suit up-to-date of decree and future interest up to date when decretal amount actually was paid even if there was no specific prayer for grant of such interest.
Therefore, given the facts of the present case and the long duration of seventeen years of separation of plaintiff and her daughter from defendant No 1, the plaintiff along with her daughter Zargul are entitled for the unclaimed past and present maintenance, till the decision of this suit.
No orders as to costs''.
4. The petitioners, being aggrieved, preferred appeal before learned Additional District Judge, Gwadar ("Appellate Court"), which was dismissed vide judgment and decree dated 26.11.2021. Both referred judgments and decrees are impugned before us.
5. Learned counsel for the petitioners contended that the trial Court has committed error by decreeing past maintenance allowance of approximately seventeen years as the trial Court could not have granted past maintenance allowance beyond the period of three years; that even respondent No.1 had not prayed for the past maintenance allowance but the trial Court on its own granted the said relief which according to learned counsel was mis-exercise of jurisdiction; that in view of contradictions between the statements of prosecution witnesses, the suit so filed by respondent No. I deserved to be dismissed but the same was wrongly decreed and the Appellate Court also dismissed the appeal so filed by the petitioners without appreciating the actual facts and circumstances of the case. Learned counsel relied upon the cases titled as Muhammad Nawaz v. Khurshid Begum[1], Sardar Muhammad v. Mst. Nasima Bibi[2], Controlling Authority/Collector, Sialkot v. Chairman, Arbitration Council[3], Syed Muddassar Altaf v. The Deputy Commissioner/Collector, Lahore[4], Mst. Anar Mamana v. Misal Gur[5], Muhammad Aslam v. Mst. Zainab Bibi and others[6] and Ghulam Habib v. Mst. Zubaida Khatoon[7].
6. While responding to the contentions of learned counsel for the petitioners, learned counsel appearing on behalf of respondent No.1 submitted that respondent No.1 from last seventeen years, was not paid any amount on account of maintenance; that the dower amount which was agreed, has also not been paid; that the trial Court had rightly passed the decree in favour of respondent No. 1. Learned counsel relied upon the cases titled as Muhammad Sharif v. Additional District Judge[8], Sakina Bibi v. Sessions Judge, Sargodha[9], Sher Zaman v. Mst. Mahzari[10], Muhammad Yasir Nazeer v. Lubna Kosar[11] and Sher Zaman v. Mst. Mahzari[12].
Arguments heard. Record perused.
7. The trial Court had decreed the suit filed by respondent No.1 by dissolving her marriage on the ground of not providing maintenance allowance to respondent No.1 from last so many years. From the rival claims of parties, following propositions have emerged: i. Whether the Haq-Meher of respondent No.1 was fixed @ 100 Misqal gold and the fora below have rightly decreed 85 Misqal gold fix rate of Rs.500/- per Misqal? ii. Whether petitioner No.1 is of unsound mind and fora below have rightly dissolved the marriage on the ground of non-maintenance? iii. Whether the trial Court could have decreed past maintenance allowance of almost 17 years?
8. The perusal of record reveals that it is an admitted feature of the case that Haq-Meher was fixed as 100 Misqal gold, as the witnesses of the petitioner before the trial Court have admitted this fact.
Though the plea has been taken by the petitioner's side that 24 Misqal gold have been paid at the time of Nikkah, but the petitioner failed to prove this fact, therefore, the decree to the extent of 85 Misqal gold as Haq-Meher, has correctly been passed by the fora below by appreciating the evidence produced by the parties.
9. Though the proposition whether petitioner No.1 was of unsound mind, had been decided by the trial Court in negative by holding that this question could be confirmed by medical evidence, but at the same time petitioner No.2 was directed to pay the decretal amount to respondent No.1, meaning thereby the trial Court in the light of case titled as Jamila Begum v. Awam-un-Nass[13] had impliedly held that the petitioner No.1 is of unsound mind; even otherwise in view of the dictum laid down in the case titled as Sultan Ahmad v. Judge Family Court[14], the petitioner No.2 was rightly directed to pay the decretal amount, being grandfather of minors.
10. The next proposition whether the past maintenance allowance was decreed in accordance with law? The trial Court has decreed the past maintenance allowance @ Rs.2,500/- per month and total amount which the trial Court has decreed on account of past maintenance allowance is Rs.510,000/-, so 17 years maintenance allowance has been granted by the trial Court to respondent No. 1, which in our considered view is not in accordance with law as Article 120 of the Limitation Act, 1908 is applicable to the suit for maintenance which, stipulates 6 years. The trial Court could have decreed past maintenance for the period of six years but has wrongly awarded the maintenance beyond the period of 6 years which is not in accordance with law. Reliance in this regard is being placed upon the case titled as Mst. Farah Naz v. Judge Family Court, Sahiwal[15], Bushra Qasim v. Abdul Rasheed[16] and Shagufta Bibi v. Amanat Ali[17].
This aspect of the matter was also considered by the Hon'ble Supreme Court of Pakistan in the case titled as Muhammad Sharif v. Additional District Judge[18], the relevant excerpt is reproduced:
6. The aforesaid judgments along with section 278 of Muhammddan Law by D.F. Mullah were considered in Syed Mudassar Altaf's case PLD 1993 Lah. 810 and laid down a principle that wife was entitled to claim past maintenance for a period of 6 years in view of law laid down by this Court in Muhammad Nawaz's case PLD 1972 SC 302. The aforesaid proposition is supported by Muhammad Aslam's case 1990 CLC 934 and Muhammad Ibrahim's case 1991 CLC 1296. There is a contrary view in the following judgments in which the Court has laid down a principle that wife is entitled to past maintenance to the extent of three years:
(i) Abdul Latits case 1985 CLC 1184; (ii) Controlling Authority/Collector's case 1989 MLD 145; (iii) Ahmad Riaz's case 1994 CLC 2403".
In view of the above deliberations, the impugned judgments and decrees are modified to the extent of past maintenance and it is held that respondent No.1 is entitled for 6 years' past maintenance before filing of the suit. With this modification, the impugned judgments and decrees are upheld.
The petition is partly allowed.
2. PLD 1966 Lah. 703
3. 1989 MLD 145 Lahore
6. 1990 CLC 934 Lahore
7. 1992 CLC 1926 Lahore
8. 2007 SCMR 49
9. 2017 YLR Note 346 Lahore
10. 2018 YLR 128 Peshawar
11. 2022 CLC 372 Balochistan
12. 2018 YLR 128 Peshawar
13. PLD 1978 Lahore 1376
15. PLD 2006 SC 457
16. 1993 CLC 2063 Lahore
17. 2018 YLR 645 Lahore
18. 2007 SCMR 49