' On 10-12-1996 the petitioner filed two suits against respondent No,
1. In the first suit she claimed a decree for dissolution of marriage. She stated that she was married to respondent No,1 on 6-2-1987 and the dower was fixed at Rs,50,000, gold ornaments weighing 12 Tolas and 1 Kanal, 14 Marlas of land; that dower has not been paid; that respondent No,1 turned her out of his house in March, 1987 snatching away her belongings and she had taken shelter in the house of her parents and brothers. She sought dissolution of her marriage on the ground that her prompt dower has not been paid; that respondent No,1 had been treating her with habitual cruelty; that respondent No,1 had failed to pay her maintenance since March, 1987; that she cannot live with respondent No,1 as his wife and is entitled to dissolution of marriage on the ground of Khula' and that he has misappropriated her belonging valuing at Rs,2,00,000. In his written statement respondent No,1 took plea that he had given, 12 Tolas of gold to the petitioner and this was the dower and no dower was fixed in cash or in the shape of land. Other allegations were denied. He, however, stated that in case marriage expenses, ornaments and clothes are reimbursed he is ready to divorce her.
2. In the second suit petitioner claimed her said dower and also maintenance at the rate of Rs,1,000 per month from March, 1987 in terms of arguments between the parties. This suit was also resisted.
Both the suits were consolidated. Following issues were framed:--
(1) Whether the defendant treated the plaintiff with habitual cruelty? OPP
(2) Whether the defendant failed to pay dower amount according to Column No,13 of Nikahnama?
(3) Whether the defendant failed to pay any maintenance since March, 1987?
(4) Whether the plaintiff is entitled to decree for dissolution of marriage on the basis of Khula'? If so, on what terms and conditions? OPP
(5) Whether the plaintiff is entitled to recover dower amount from the defendant as alleged in the plaint? OPP
(6) Whether the plaintiff is entitled to recover maintenance from the defendant? If so, at what rate and for what period? OPP
(7) Whether the plaintiff has filed the suits with mala fide intention to harass the defendant? OPD
(8) Whether no dower in shape of cash and land were fixed? OPD
(9) Relief.
' Evidence of the parties was recorded. The learned Judge, Family Court proceeded to decide Issues Nos.1, 3, 6 and 8 against the petitioner. Issues Nos.2, 5 and 8 were taken up together and it was held that the dower was settled at Rs,50,000 and that gold and land were never settled as such by way of dower. Issue No,7 was found against respondent No,
1. Under Issue No,4 it was held that the petitioner is entitled to dissolution of marriage on the ground of Khula' but as consideration sale would not claim dower and maintenance from respondent No,
1. The suit was accordingly decided vide judgment and decree, dated 25-5-1998. The petitioner filed a first appeal which was decided by- a learned Additional District Judge vide judgment and decree, dated 23-4-1999. The learned Additional District Judge proceeded to set aside the findings of the learned trial Court to the effect that the petitioner was not entitled to recover the maintenance. He also held that the dower was fixed as pleaded by the petitioner. He further held that the petitioner was entitled to maintenance while living separately because of the failure of respondent No,1 to pay prompt dower. However, learned Additional District Judge proceeded to uphold the findings of learned Judge, Family Court that the maintenance and dower could be fixed as a consideration for grant of decree for dissolution of marriage on the ground of Khula'.
3. The writ petition was admitted to regular hearing vide order, dated 7-12-1999. Hearing was conducted on 31-7-2000 when Messrs Sardar Muhammad Aslam and Malik Muhammad Nawaz, Advocates were appointed as Amicus Curiae. Sardar Muhammad Aslam, Advocate, amicus curiae is of the opinion that failure to pay prompt dower would be a valid reason for a wife to refuse her company to the husband and to claim separate maintenance. Learned counsel for the petitioner argues that in view of the findings of fact recorded by the learned Additional Judge that her client was entitled to payment of separate maintenance for failure of the respondent No,1 to pay the prompt dower, she was entitled to dissolution of her marriage on the ground of non-maintenance for two years as covered by Issue No,3 and thus, having independently established a ground for dissolution of marriage, the learned Judge, Family Court would not be having jurisdiction to set down the condition for. Khula'. Learned counsel for respondent No,1 tries to support the impugned judgments and decrees by attacking the findings of the learned Additional District Judge on the point of maintenance and dower.
4. I have gone through the copies of the record with the assistance of the learned counsel for the parties. I find that respondent No,1 while in the witness-box was confronted with the Nikahnama Exh.P.1. He admitted that this was only Nikahnama between the parties that the contents of Exh.P.1 were correct that he has not challenged the contents of the Nikahnama any way. Now this Nikahnama Exh.P.1 states that dower was settled as Rs,50,000 in cash, gold ornaments weighing 12 Tolas and 1 Kanal, 14 Marlas of land. It was further undertaken that cash, gold ornaments and land shall be handed over and transferred on demand. The column 17 further provides that respondent No,1 agreed to pay maintenance at the rate of Rs,1,000 per month to his wife (petitioner). Learned Additional District Judge has, therefore, very correctly held that the dower was fixed as pleaded by the petitioner and that she was entitled to separate maintenance because of non-payment of said dower as promised by respondent No, 1 .
5. It has been specifically pleaded by the petitioner in her plaint that she is entitled to dissolution of her marriage on the ground of non-maintenance for a period of more than 2 years which is a ground for dissolution of marriage as laid down in section 2(ii) of the Dissolution of Muslim Marriages Act, 1939. It stands proved on record that the petitioner though entitled has not been maintained by respondent No,1 for a period in excess of one prescribed. This being so she becomes entitled to dissolution of her marriage with respondent No,1 on the said ground.
6. Once it is held that the petitioner would be entitled to dissolution of her marriage on the said ground, recognized by law, any direction by the learned lower Courts calling upon the lady to forego her dower and maintenance would be utterly without lawful authority. In fact the judgments and decrees of the learned lower Courts are contradiction in terms. The learned Judge, Family Court proceeded to impose said condition in oblivion of fact that while doing so he is upholding the plea of the petitioner that she is entitled to maintenance for non-payment of dower. The learned Additional District Judge although proceeded correctly in reversing the findings of the learned trial Court as to the maintenance and dower but still lost sight of the fact that he is upholding the direction issued by the learned trial Court in violation of the very findings recorded by him.
7. 1, therefore, do find that the petitioner was entitled to dissolution of marriage on the ground of non-payment of maintenance for a period of 2 years and having thus, established said ground for dissolution of her marriage, the learned respondents Nos.2 and 3 had no lawful authority to impose condition upon her. The result is that she was entitled to decree for maintenance as prayed for by her and the dower. I may note here that the petitioner has admitted in her statement as P.W.1 that 6 Tolas gold were in fact given to her by respondent No,1 out of dower. This writ petition is accordingly allowed. The judgment and decrees passed by learned respondents Nos.2 and 3 are without lawful authority and are, set aside. The result would be that the petitioner's suit for dissolution of marriage stands decreed on the ground of non-payment of maintenance for more than two years. Her suit for recovery of dower shall also stand decreed except 6 Tolas of gold having already been given to her by respondent No,
1. The suit for maintenance shall also stand decreed at the rate of Rs,1,000 per month starting from a period of 6 years before the institution of the suit ending three months after the date of decree of the first Court i,e, 25-5-1998. No order as to costs.