' Muhammad Mumtaz petitioner and Mst. Parveen Akhtar respondent No.2 were married in November, 1980 and dower money was fixed at Rs.20,000. Within a year of their marriage differences arose between them and they embarked upon litigation against each other. On 25-11- 1981 petitioner filed a suit for restitution of conjugal rights in the Court of Family Juge, Palpattan which was decreed on 17-5-1983. During the pending of this suit Mst.Parveen Akhtar also instituted a suit before the Family Judge, Burewala on 8-2-1982 for dissolution of marriage on the grounds of cruelty, non-payment of dower, non-maintenance, and misappropriation of her ornaments. She also took up the ground of 'lian' and alleged that she had developed hatred for the husband on account of his infamous way of life wherefore she wanted to be divorced in exercise of her right of Khula on surrendering her claim to one-half of her ornaments in possession of the husband.
2. Petitioner contested the suit by controverting her pleas and denied even the justification for her to exercise the right of Khula but admitted that her dower money was still payable.Learned Family Judge, Burewala set down for trial the following seven issues:-
(i) Whether the defendant habitually maltreated the plaintiff ? O.P.P.
(ii) Whether the defendant has not paid the dower money to the plaintiff ? O.P.D.
(iii) Whether the defendant levelled false charges of unchastity against the plaintiff ? O.P.P.
(iv) Whether the defendant is a man of bad character and associates with the illreputed women ?
O.P.P.
(v) Whether the defendant has misappropriated the ornaments of the plaintiff ? O.P.P.
(vi) Whether the defendant failed to maintain the plaintiff ? O.P.P.
(vii) Whether the plaintiff is entitled to decree of Khula divorce ? 0 P.P
3. After recording the desired evidence, by his judgment dated 10-5-1984, learned Family Judge found all the issues, except No.2 and 7, against the wife. Under these two issues he concluded that ornaments worth Rs.5,400 had already been given to her while the remaining dower money amounting to Rs.14,600 was still due to be paid to her and upholding her plea for exercise of right of Khula, he fixed the remaining dower amount as its consideration to dissolve the marriage. The husband has challenged this judgment through this writ petition.
4. Learned counsel has argued that five out of seven issues having been decided against the wife, there was no basis left for her to exercise the right of Khula and, as such, learned Family Judge has, erred in law in giving effect to her claim because her plea about hatred for the petitioner can either be only a whim or a mere passing impulse and has no real basis. This contention of the learned counsel has not impressed me because her mere failure to prove various issues in this suit does not necessarily mean that the admitted rift between the parties is without any cause, for without a cause there would not A have been any rift and the parties would have been living together. It is all the more necessary for the purposes of this proceedings that the cause should be located because the power invoked by the petitioner is only discretionary and it may not be exercised even in case of an illegality attaching to a just order. Since its exercise should aim at preventing injustice therefore, as a first step, this Court has to be satisfied that its aid is not sought for perpetuation of injustice. The petitioner has not placed a copy of the evidence on this record to enable this Court to make its own assessm ent of the situation. It is significant that in this case there is no dissension that the parties are living apart since almost the middle of the year 1981 and on the present record it is clear from the pleadings of the parties that the only bone of contention which has created a crack to show up within a short span of their married life is the non-payment of dower money. The wife has alleged in her plaint that the dower was fixed at Rs.20,000 and her frequent demands for its payment had come to spoil their relations. The petitioner has admitted in para. 3 of his written statement that the same is still due to be paid.Since a wife has a legal right to the payment of dower which remains a debt payable even in the event of death of the husband and has to be paid so long as the wife does not voluntarily abandon her claim to it, therefore, the respondent-wife will be within her right to have even pressed for its payment. The petitioner has not furnished any counter-version about the reasons for rift between themselves. Learned Family Judge who would have attempted to bring about reconciliation between the parties has formed the view that since the husband is not prepared to pay the dower, therefore, a happy married life between the parties is a false hope and cannot be envisaged. It is not possible herein to lightly reject his view because he has also had the advantage of hearing the evidence. He has taken note of the petitioner's stand that he would never have married her for this dower. In this state of affairs learned Family Judge does not appear to have acted only arbitrarily or fancifully in concluding that the parties cannot live within the limits of God. Argument of the learned counsel is, therefore, repelled.
5. The only other contention of learned counsel is that the petitioner's suit for restitution of conjugal rights having been decreed on 17-5-1983, even though the wife may not have obeyed that decree for the reason of non-payment of dower, yet, she cannot use it as a ground for dissolution of marriage and, at any rate of decree for the purpose could not be passed subsequent to the petitioner's decree which operated as res judicata.
6. First limb of the argument of the learned counsel stands partially answered in the foregoing in so far as it has been found that the fixation of a substantial amount of dower and its admitted non- payment is the sole cause of grievance is this case and I have already held that dower money is a debt payable to a wife and she is within her legal right to even press for its payment. Even though I do not subscribe to the view of the learned counsel that the wife's claim for dower in this case is barred by res judicata, yet, even in those cases where claim for recovery of debt gets barred under the law, the only conse quence which follows is that the aid of the Courts cannot be invoked for its recovery but the debt itself does not become extinct so that it may be available for purposes of adjustment out of Court and can even be paid with the consent of the parties. As such there cannot be anything wrong in a person having such a debt due to him, as become barred under the law, calling upon the other to pay it off out of Court and, therefore, a wife having the dower debt payable to her cannot be said to be acting unlawfully in making the demand for its payment even after its recovery may have become barred under the law and the consequences of the demand and persistent refusal by the husband to pay do not have to be simply ignored. They will be quite distinct from the dower debt itself and may well be available to be used by the wife as a ground for dissolution of marriage because non-payment of dower money would amount to preventing the wife from exercising her legal rights over her property and would squarely fall within sub-clause (d) of clause (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939 and the ensuing consequences may well be covered by sub-clause (a) thereof.
7. Regarding the second limb of his contention that the petitioner's decree operates as res judicata, a perusal of the judgment passed in the petitioner's suit shows that the question of non-payment of dower was not in issue therein and was neither heard nor decided. The wife even filed an appeal against the decree for restitution of conjugal rights passed against her but the same was dismissed in default by the learned District Judge, Sahiwal on 12-10-1983 and thus a judgment on merits was not passed in the appeal. However, learned counsel has referred to Explanation IV of section 11 of the C.P.C. to argue that the wife might and ought to have raised the plea of non- payment of dower as a defence to the suit for restitution of conjugal rights wherefore it will be deemed to have been a matter directly and substantially in issue in the former suit of the husband and would hence become res judicata in her suit. This argument of the learned counsel is not tenable in view of the foregoing and is only fallacious because he is not right in supposing that non-payment of dower could be taken as a ground of defence in the petitioner's suit. It is well- settled that where consummation of marriage has taken place the only effect of non-payment of prompt dower is that the decree for restitution of conjugal rights will be made conditional upon its payment and the suit cannot be dismissed for non-payment of prompt dower (see para. 293 of Mulla's Mahommdan Law E Seventeenth Edition) Only that ground which would furnish a complete answer to a plaintiff's claim and result in dismissal of his suit can be the 'ground of defence' referred to in Explanation IV of section 11 of the C.P.C. as held in Bhagat Singh v. Sher Singh and others AIR 1914 Lah. 452 and Nabi Bakhsh and others v. Muhammad Salam Ullah and others AIR 1924 Lah. 83 (DB), and, as such, non-payment of dower amount cannot be designated a plea available as a ground of defence in the petitioner's suit for restitution of conjugal rights. Such a plea, therefore, cannot be regarded as having constructively become barred as res judicata. There can be yet another approach to this question, namely, that the law does not contemplate that the parties once married have to continue so without regard to the unfavourable shape that their married life may take, therefore, a cause of action for dissolution of marriage on the ground of habitual cruelty cannot be taken to be static and may be recurring so that it cannot be taken to have been foreclosed by the decree for restitution of conjugal rights passed against the wife. The consequences ensuing from non-payment of dower being distinct and separate from the dower itself cannot get effaced and may continue to show up recurringly. There can be no question of her suit for dissolution of marriage based upon the day to day accrual of cause of action, due to continued non-payment of her dower, becoming barred by the principle of res judicata just because of the decree for restitution of conjugal rights passed against her. The resulting hatred for the uncaring husband may also avail her separately for exercise of right of Khula. Contention of the learned counsel is, therefore, repelled as being misconceived and without substance.
' There is no merit in the writ petition which is accordingly dismissed in limine.