1. ' Petition in Constitutional jurisdiction arose from a matrimonial dispute between the spouses and is against a concurring decision of Additional District Judge, Attock dated 26-11-1987 denying relief for restitution of conjugal rights to the petitioner-husband on account of unpaid dower to respondent-wife.
2. ' Parties were married on 4-9-1985. After marriage they lived together as husband and wife for some time but in course of their stay together, some differences arose between them in consequence whereof, respondent-wife left for the house of her parents. Upon her refusal to return and resume normal matrimonial life, petitioner brought a suit for rehabilitation of marital relations against her in the Family Court at Attock. In return, the wife brought a suit to recover her unpaid dower in the sum of Rs,12,000 from him. Both the suits were consolidated for a joint trial and common set of issues were settled in them. Upon review of the evidence given by the parties in the consolidated trial of suits, the Judge Family Court found that Rs,12,000 was fixed as dower of the wife at the time of her marriage and it was not paid to her. Issue of habitual cruelty and the husband's liability to maintain the wife were found against her. Under issue No,6, it was held that since the dower-amount was not paid to the wife, she had the lawful excuse to live away from the husband and on this score alone, relief for restitution of conjugal rights was denied to the husband and his suit dismissed on 17-9-1987. Correspondingly, suit for recovery of dower in the sum of Rs,12,000 was decreed in favour of the wife. Aggrieved of the judgment, the husband challenged it in two separate appeals before learned District Judge Attock which appeals came to be heard by an Additional District Judge in the same District who agreeing with the trial Court dismissed the appeals with costs on 26-11-1987. Decree for dower was accepted and not challenged further by the husband who preferred to assail only that part of the decree which denied him the relief for restitution of conjugal rights. Dower amount was deposited and paid to the wife under an order of this Court.
3. ' It was not denied that marriage was consummated and the wife lived with the husband for some months after marriage and performed her matrimonial obligations. Upon this view of the matter, learned counsel for the petitioner relying on para. 293 of Principles of Mahomedan Law by Mulla argued that the suit for restitution of conjugal rights could not have been dismissed outright.
4. Instead, decree for restitution of conjugal rights conditional upon payment of unpaid dower ought to have been made, there being no dispute about the nature of dower. To the contrary, learned counsel for the respondent-wife vehemently opposed granting of the decree for restitution of conjugal rights basing his client's, defence on cruelty and fabrication regarding the amount of dower fixed at the time of parties' marriage. In defence to the suit for restitution of conjugal rights, wife had pleaded cruelty by the husband and further that she was hardpressed to forego her dower amount of Rs,12,000 failing, she was beaten out of the husband's house. Copy of the plaint in the suit for dower and defence taken to it have not been filed. Therefore, the nature of averments in it and the kind of defence taken to it are not known. On plea of cruelty and liability of the husband to provide separate maintenance to the wife, Courts below had found against her Nonetheless, restitution was denied because the dower was unpaid. This course, in my opinion was incorrect.
5. Para 293 of Principles of Mahomedan Law by Mulla states:- "The wife may refuse to live with her husband and admit him to sexual intercourse so long as the prompt dower is not paid (Baillie, 125). If the husband sues her for restitution of conjugal rights before sexual intercourse takes place, non-payment of the dower is a complete defence to the suit, and the suit will be dismissed. If the suit is brought after sexual intercourse has taken place with her free consent, the proper decree to pass is not a decree of dismissal, but a decree for restitution conditional on payment of prompt dower."
6. ' Para. 48 of Muhammadan Law, A Digest, by Sir Roland Knyvet Wilson revised and brought upto date by A. Yousaf Ali provides:-- "In addition to her right to recover the prompt dower by regular suit, the wife may refuse to admit her husband to sexual intercourse, to obey his orders, or even to live in the same house with him, so long it is unpaid; and this without forfeiting any right to be maintained at his expense, or her right of inheritance as his wife. But it seems to be now settled that a suit for restitution is maintainable in case of refusal after sexual intercourse has once taken place with her free consent, but the decree may be made conditional on payment of the prompt dower."
7. ' In Rahim Jan v. Muhammad PLD 1955 Lahore 122, at page 136, late B.Z. Kaikaus, J., as his Lordship then was found that:-- "Even after consummation the wife retains the right to refuse the performance of marital obligation till the prompt dower is paid."
8. ' Be that as it may, after removal of the obstacle provided by the event of non-payment of dower to the relief of restitution of conjugal rights, the question would arise, whether the husband was entitled to rehabilitation of marital relations with his wife. Marriage tie still subsisted. So far, wife has not laid claim to divorce. In Mst. Mulkhan Bibi v. Muhammad Wazir Khan PED 1959 (W.P.) Lahore 710, it was ruled that:-- "Decree for restitution of conjugal rights is one which is in the discretion of the Court to grant and the plaintiff must prove in order to entitle him to such a decree that he has come to the Court with clean hands."
9. ' Same view was expressed in Muhammad. Zaman v. Mst. Irshad Begum and others PLD 1967 Lahore 1104 wherein, at page 1110, in para. 10 of the judgment, it was observed:-- "No doubt it is the duty of the wife to follow the husband wherever he desires her to go. But such an obligation of the wife to live with her husband at all times and in all circumstances is not an absolute one. The law recognises circumstances which justify her refusal to live with him. For instance if he has habitually ill-treated her, if he has deserted her for a long time etc., or he has directed to leave his house or even connived at her doing so. On all such occasions the husband cannot require his wife to re-enter the conjugal domicile nor the Court of justice can give him assistance to restore him the hand of his wife. The bad conduct or neglect of the husband under the Muslim Law is good defence to a suit brought by him for restitution of conjugal rights. Buzloor Rahman v. Shumsoonnisa Begum (1876) 11 Mooro's IA 555, Ameer Afi's Muhammadan Law, Vol. 11 (1929 Edn.), section 11, pp. 442-446).
10. ' No doubt a husband can maintain a suit for the restitution of the conjugal rights in a Civil Court against his wife, but the decree of the restitution of the conjugal rights is in the discretion of the Court whose duty it is to find out, if there be a cruelty of a degree rendering it unsafe for her if she is ordered to return to the husband's house."
11. 'In the Principles of Mahomedan Law by Mulla, number of defences are noticed to the suit for restitution of conjugal rights by the husband. These and others initially fall for consideration by the Court which is called upon to decide, whether restitution ought to be ordered by directing the wife to return to the conjugal domicile of her husband. In the ultimate analysis, the issue boils down to adjustment of human relations and force has no role to play in it. If a decree for restitution of conjugal rights is passed by a Court, only mode of its execution provided in rule 32 of Order XXI, Civil Procedure Code manifestly suggested for an indirect pressure for its enforcement. Only process which could issue in execution of a decree for restitution of conjugal rights is that of attachment of property but not detention for compelling the wife to go and live with the husband.
12. Mt. Sheo Kumari and others v. Mathura Ram AIR 1936 Allahabad 657, Imam Shariff and another v.
13. Abdul Manaf PLD 1952 Dacca 465 are in point. Unfortunately, neither the first Court which gave the judgment of dismissal nor the second Court which sat in appeal on it attended to the issue touching the exercise of discretion governing the grant of restitution of conjugal rights. Thus, it is a clear case of failing to exercise jurisdiction vested in a Court of law. There are certain limits which the law places upon the power of the Court in dealing with a case before it in exercise of Constitutional jurisdiction. Therefore, the question whether restitution should or should not be allowed in the existing circumstances cannot be finally resolved by this Court. Primarily, it is firstly the duty of the Court which is charged with jurisdiction to decide on it. The couple could not be left in impasse to suffer for ever. If the things are allowed to stand as they are, that is the only course which it would lead to. An effort must be made to save the marriage unless it is seen to be irretrievably breaking down. As the Courts below did not attend to the question relating to grant of discretionary relief of restitution of conjugal rights in its true perspective, their conclusions could not be termed sound and legal.
14. ' In view of the aforesaid, petition is allowed, impugned judgment and decree of Additional District Judge, in so far as it related to relief of restitution are set aside and the case is remanded to learned District Judge, Attock for deciding afresh whether the husband is entitled to relief of restitution of conjugal rights. Appeal shall proceed to hearing on existing records but if need be, it shall be open to the learned Court to take additional evidence and the parties also to supplement the record with additional material to assist satisfactory decision of the remanded appeal. There shall be no order as to costs in this Court. Parties shall appear before the learned Judge below on 24-4-1991.