' Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the impugned judgments and decrees dated 27-5-2003 and 23-10- 2003 passed by respondents Nos.1 and 2 respectively.
2. The brief facts of this case are that the petitioner Muhammad Nadeem was married with Mst.
Farah Jabeen respondent No.3 according to Shara Muhammadi on 3-12-1999 at Multan. Mst. Farah Jabeen performed her marital obligations and she claimed that she was turned out of the house after 5/6 months by the petitioner. She was constrained to file three suits i.e. Suit for dissolution of marriage on the ground of Khula, suit for recovery of dower amounting to Rs.50,000 and suit for maintenance amounting to Rs.20,000 from 3-12-1999 to 4-7-2001. The petitioner filed written statements and also filed a suit for restitution of conjugal rights. All the four suits were consolidated. From the pleadings of the parties the learned Judge Family Court framed the following issues:--
(1) Whether the plaintiff is estopped to file the suits by her words and conduct? OPD
(2) Whether the suits are based on mala fide and wrong facts. Therefore, the plaintiff is not entitled for any relief? OPD
(3) Whether the plaintiff has no cause of action to file the suit? OPD
(4) Whether the suit for dower is not maintainable as per preliminary objection No.3 of written statement? OPD
(5) Whether the defendant is entitled to the decree of restitution of conjugal rights as prayed for in the plaint? OPD
(6) Whether the defendant has not come to the Court with clean hands and he has filed his suit as a counter-blast? OPP
(7) Whether the defendant treated the plaintiff with cruelty and she was expelled by him after giving a beat? OPP
(8) Whether the plaintiff has no cause of action? OPD
(9) Whether the plaintiff hates the defendant and there is no likelihood of reunion of the parties as per Hadood Ullah and plaintiff is therefore entitled to the decree of dissolution of marriage as prayed for? OPP
(11) Whether the plaintiff is entitled for recovery of her dower of Rs.50,000 as prayed for? OPP
(12) Relief.
' Respondent No.3 produced evidence while defence of petitioner was struck off. The learned Judge Family Court decreed the suits for dissolution of marriage and for recovery of dower but dismissed the suits for maintenance and also for restitution of conjugal rights filed by the petitioner vide judgment and decree dated 27-5-2003.
3. Petitioner filed an appeal, challenging the judgment and decree to the extent of decreeing the suit for dower whereas respondent No.3 filed appeal against the dismissal of her suit for recovery of maintenance allowance. The learned Additional District Judge, Multan dismissed the appeal filed by the petitioner but appeal filed by respondent No.3 was accepted and the suit filed by her for recovery of maintenance was decreed at the rate of Rs.1,000 per month with effect from 5-5-2000 till expiry of Iddat period. Hence, this writ petition.
4. Learned counsel for the petitioner contends that the defence of the petitioner was struck off only after three opportunities were afforded to the petitioner to lead evidence and in spite of that he was present at the time of closure of the evidence, the statements of the petitioner was not recorded. It is further contended that the petitioner was not afforded equal opportunities to produce his evidence to disprove the allegation levelled against him. It is contended that dower and maintenance allowance could not be awarded to the respondent as she has claimed divorce on the basis of Khula. It is also contended that an amendment was made in section 10-A of the Family Courts Ordinance and the learned trial Court having not decided the suit by following the amendment has committed an illegality hence the impugned judgment and decrees are liable to be set aside.
5. On the other hand learned counsel for the respondent No.3 opposes this petition on the ground that concurrent finding have been arrived at by the Courts below regarding dissolution of marriage and the recovery of dower amount and the finding was rightly reserved regarding the maintenance payable to respondent No.3 who was turned out of the house by respondent No.3 and the judgments and decrees of the Courts below are based on the evidence on the record and there is no illegality or improbability, which cannot be interferred within writ jurisdiction.
6. I have heard the learned counsel for the parties and also perused the impugned judgments and decrees and also the evidence on the record.
7. First of all, I would like to decide the objection taken by the petitioner that his evidence was closed only after affording three opportunities and he should be afforded opportunity to lead evidence. There is nothing in the statute that how many opportunities should be granted to produce evidence. The right of evidence can be struck off only after one date of hearing if it appears to the Court that the party is intentionally avoiding production of evidence. In this case evidence of the petitioner was closed on 30-11-2002, which order was assailed in appeal and writ jurisdiction, but remained upheld. Hence at this stage it cannot be re-opened as it has become a past and closed chapter.
8. As far as objection that the proviso inserted in section 10 of West Pakistan Family Courts Act, 1964 was not followed while decreeing suit for dissolution of marriage is concerned, the impugned judgment and decree passed by the learned trial Court to this extent was not challenged by the petitioner at the relevant time and he only filed appeal to the extent of decree regarding dower amount, hence, this judgment in this regard having attained finality cannot be assailed through this writ petition. Moreover learned counsel for respondent No.3 has pointed out that the suit for dissolution of marriage was filed on 30-10-2001 whereas the said amendment made afterwards cannot be given retrospective effect. He has rightly placed reliance on Manawar Iqbal Satti v. Mst.
Uzma Satti and 2 others (2003 YLR 599) in support of his contention. Hence, this objection is also overruled.
9. The respondent No.3 appeared in the Court as P.W.1 and claimed to have developed hatredness against the petitioner and that they could not live together as husband and wife. She specifically stated that dower amount was fixed Rs.50,000 and the maintenance was to be paid at the rate of Rs.1,000 per month. According to respondent No.3 while appearing as P.W.1, she was kicked out of the house by the petitioner on 5-5-2000 after giving her maltreatment and her parents tried to reunite her, but the petitioner refused. P.W.2 Muhammad Aslam (father of respondent No.3) also supported her evidence. There is no rebuttal to this claim of respondent No.3 on the record. In 2003 YLR 70, it has been held that dower can never be in the nature of a benefit or gift which is liable to be restored in consideration of granting Khula divorce. Same is the position with regard to maintenance allowance. In PLD 199.1 SC 779 it has been held by the Hon'ble Supreme Court that "petitioner, as observed by the High Court had the right to seek the remedy but in the case like the present one, he not having insisted upon at proper stage for the determination of exact benefits received by the wife for their return, as it might have been thought below his dignity to do so, the same could not be asked for in the Constitutional jurisdiction of the High Court which was highly discretionary". There is nothing on the record that dower was ever paid to respondent No.3 or that she had been maintained by the petitioner during the period of her desertion. I do not find any illegality or jurisdictional defect in the impugned judgments and decrees which have been passed on the evidence on record and are in consonance with the decisions of the superior Courts of this country. The case of respondent No.3 is that she was deserted by the petitioner and she was ready for reunion and due to his conduct she developed hatredness. Hence, she has rightly been awarded maintenance allowance.
10. For the foregoing reasons I do not find any merit in this writ petition, the impugned judgments and decrees are maintained and this writ petition is dismissed.