1. ' The petitioner through this Constitutional petition has assailed the judgment and decree, dated 12th September, 1989 passed by the Additional District Judge, Sheikhupura, whereby he set at naught the judgment of the Judge Family Court, Sheikhupura, dated 29-1-1989 allowing maintenance to the petitioner.
2. ' Brief facts, for the disposal of this writ petition, are that the petitioner filed a suit for maintenance on 22nd June, 1986 on the plea that she was turned out of the family abode after the respondent contracted second marriage without her consent. The suit was contested by respondent No,1 and out of the pleadings of the parties the following issues were framed:--
(1) Whether this Court has got no territorial jurisdiction to entertain the present suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the plaintiff has no cause of action? OPD
(4) Whether the suit is filed with mala fide? OPD
(5) Whether the plaintiff is entitled to recover maintenance from the defendant at the rate of Rs,1,000 per month? OPP.
(6) Relief.
3. ' The parties led their evidence and after scrutinizing the same the Judge Family Court, Sheikhupura, through his order, dated 29-1-1989 allowed maintenance to the wife/petitioner at the rate of Rs,600 per month. Since the respondent/husband divorced the petitioner during the pendency of the suit, as such, she was not allowed future maintenance. An appeal was filed before the Additional District Judge, Sheikhupura, who accepted it through his order, dated 12-9-1989 and set aside the order of maintenance. Hence, this Constitutional petition.
4. ' It is argued by the learned counsel for the petitioner that the first appellate Court has not appreciated the evidence brought on record in its true perspective. The petitioner's sufficient and justified reason for living separate was not considered by the learned Judge as there is evidence on record that she was turned out of the family abode by respondent No,1 just after three months of second marriage which the respondent contracted against her wishes.
5. ' Learned counsel appearing for the respondent on the other hand has supported the impugned order and stated that the petitioner was disobedient wife. She left the house on her own accord and as such she is not entitled to the maintenance claimed for.
6. ' I have considered the contentions and have gone through the entire evidence with the assistance of the learned counsel. It is reflected from the evidence that the parties married about 25 years earlier. The cleavage took place between their relationship mainly due to the fact that respondent No,1 contracted second marriage against the wishes of the petitioner. The reliance placed by the learned Additional District Judge on the photographs taken at the time of second marriage of respondent No,1 alongwith the petitioner and the second wife would not demonstrate that the marriage was solemnized with the petitioner's consent. Nothing has been brought on record that the petitioner gave consent to the second marriage. It is on record that the petitioner was turned out of the family abode just after three months of the second marriage. She was also meted out discriminatory treatment by respondent No,1. It is also reflected and had even been admitted by the respondent that the petitioner for all this period had not been paid maintenance. The argument of the learned counsel for respondent No,1 that he was willing to reconciliate the matter, would lose all its force when it is on record that he divorced the petitioner in September, 1987 during the pendency of the suit and closed all the doors for reconciliation. In the Hadaya translated by Charles Hamilton at page 143 it has been laid down as under:-- "It is incumbent upon a husband to provide a separate apartment for his wife's habitation, to be solely and exclusively appropriated to her use, so as that none of the husband's family, or others may enter without her permission and desire, because this is essentially necessary to her, and is therefore her due the same as maintenance, for the word of God appoints her a dwellings-house as well as a subsistence; and as it is incumbent upon a husband to provide a habitation for his wife, so he is not at liberty to admit any person to a share in it, as this would be injurious to her by endangering her property and obstructing her enjoyment of his society; but if she desire it, the husband may then lawfully admit a partner in the habitation, as she by such a request voluntarily relinquishes her right; neither is the husband at liberty to intrude upon his wife his child by another woman for the same reason."
7. ' So far as the financial position of the respondent is concerned, it has sufficiently been brought on record that he is a man of means. He has admitted that apart from his business he owns two houses and agricultural land. Consequently, I am of the view that the evidence on record was not appreciated by the learned Additional District Judge in its true perspective. For what has been stated above, I set aside the order, dated 12-9-1989 passed by the Additional District Judge, Sheikhupura as having been passed without lawful authority and of no legal effect. The writ petition is, therefore, accepted and the maintenance order passed by the Judge Family Court, Sheikhupura, on 294-1989 is hereby restored. There shall be no order as to costs.