This judgment shall dispose of Writ Petition No,1618 of 1999 and Writ Petition No,1619 of 1999 as both arise out of a common judgment dated 6-2-1999 of learned Additional District Judge, Multan. The petitioner and respondent No,1 are spouses. Respondent No,1 filed a suit for recovery of 84 Kanals of land which according to her was given in lieu of dower at the time of Nikah between the said spouses. She also brought a suit for recovery of maintenance at the rate of ks.5,000 per month. The petitioner contested the said two suits as also filed a suit for restitution of conjugal rights contending that a sum of Rs,21,000 was fixed as dower and that the said amount was paid at the time of Nikah. The claim for maintenance was contested on the plea that respondent No,1 has refused herself to him without a just cause and of course, in his suit he prayed that respondent No,1 be directed to perform her marital obligations. The learned Judge, Family Court consolidated all the three matters and framed the following issues:--
(1) Whether the plaintiff is entitled to recover maintenance allowance from the defendant? If so, since when and at what rate? OPP.
(2) Whether the plaintiff is entitled to get dower i,e, land detailed in the headnote of the plaint? OPP
(3) Whether the defendant is entitled to get a decree for restitution of conjugal rights? OPD
(4) Relief. Evidence of the parties was recorded. Vide the consolidated judgment dated 15-10-1998 respondent No,2 decreed the suit for dower as prayed for, granted maintenance allowance at the rate of Rs,1,000 P.M. With effect from September, 1992 till the severance of the marriage bond, while the suit for restitution of conjugal rights was dismissed. Respondent No,1 did not proceed further in the matter of the suit for restitution of conjugal rights. He, however, filed two appeals against the decrees for dower and maintenance. These appeals were heard by respondent No,3 who in his turn by a consolidated judgment dated 6-2-1999 dismissed both the appeals. Learned counsel for the petitioner contends that an entry in the Nikahnama as to transfer the property in lieu of dower does not constitute a gift unless and until the same is followed by a formal document. He relied on the case of Umar Bakhsh v. Mst. Zamrut Jan and 9 others PLD 1973 Pesh.
63. Regarding the maintenance decree, learned counsel states that the evidence has been misread by the learned Courts below while allowing the maintenance allowance to respondent No,
1. Also contends that past maintenance cannot be granted.
2. I have gone through the record appended with the writ petition. I am afraid there is no force in the contentions raised by the learned counsel for the petitioner. The Peshawar High Court has taken a different view in the case of Abdul Ghaffar and 6 others v. Ghulam Jan (represented by 5 heirs) and another (PLD 1975 Pesh. 12). This Court in the case of Haji Ghulam Hussain v. Mst. Amir Khatun PLD 1976 BJ 37 took the view that transfer of property in lieu of dower made at the time of Nikah takes effect as a gift. The Supreme Court in the case of Mst. Zubaida Bibi and others v. Mst.
Majidan and another 1994 SCM R 1978 has observed that the Nikahnama being a public document is admissible in evidence per se as evidence of the transfer of property in lieu of dower. No misreading or non-reading of evidence by the learned Courts below while recording their respective judgments has been pointed out. The argument against the grant of past maintenance is also without any basis. It has been proved on record that the petitioner managed to keep respondent No,1 away from the property constituting her dower which is tantamount to refusal to pay dower and as such she rightly refused her company to him. Besides, it is also on record that the petitioner has contracted a second marriage and it was after the remarriage that his litigation started.
3. No other point has been urged. Both the writ petitions are dismissed leaving the parties to bear their own costs.