Orat ki 2nd marriage or Saman jahez ka dawa
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| Orat ki 2nd marriage or Saman jahez ka dawa |
عورت کی دوسری شادی کیبعد سامان جہیزکادعوی۔
1. **دعوے**:
- **مدعا علیہ**: مِسز نعیم فاطمہ اور مِسز قرۃ العین فاطمہ نے نفقے، مہر، جہیز کے سامان، اور نابالغ کی ولادت کے اخراجات کی بازیابی کے لئے مقدمہ دائر کیا۔
- **مدعا علیہ**: عرفان محسن (درخواست گزار) کے خلاف یہ دعوے کیے گئے تھے۔
2. **جواب**:
- درخواست گزار نے دعویٰ کیا کہ چونکہ جواب دہندہ نمبر 1 کی دوسری شادی تھی، لہذا جہیز کے سامان کا دعویٰ غلط ہے۔ انہوں نے یہ بھی کہا کہ نکاح نامے میں بعض تفصیلات غلط تھیں اور نکاح خواں/رجسٹرار کی نیک نیتی پر سوال اٹھایا۔
3. **عدالتی فیصلہ**:
- **خاندانی عدالت**: جواب دہندہ نمبر 1 کی نفقے اور ولادت کے اخراجات کی بازیابی کی درخواست مسترد کرتے ہوئے، مہر، جہیز کے سامان کی قیمت، اور نابالغ کے نفقے کی حد مقرر کی۔
- **اپیلٹ عدالت*
*: نفقے کی رقم کم کرتے ہوئے، کچھ فیصلوں کو برقرار رکھا اور درخواست گزار کے حق میں فیصلہ کیا۔
- **ہائی کورٹ**:
- جہیز کے سامان کا دعویٰ درست قرار دیا اور اس کی قیمت کی بازیابی کی ہدایت کی۔
- نفقے کی رقم کو مناسب قرار دیا، بتاتے ہوئے کہ شوہر کی مالی حیثیت کے مطابق نفقے کی رقم معقول ہونی چاہیے۔
**کوڈ آرڈر**:
ہائی کورٹ نے یہ فیصلہ سنایا کہ:
- **جہیز کے سامان** کی قیمت کی بازیابی کی جائے۔
- **نفقے** کی رقم شوہر کی مالی حیثیت کے مطابق معقول قرار دی جائے۔
فیصلہ نکاح نامے کی درستگی، جہیز کی قیمت، اور نفقے کی رقم کے تعین پر مبنی تھا۔
عدالت کے فیصلے میں کوئی منفرد نکتہ عام طور پر اس بات پر منحصر ہوتا ہے کہ کیس کے مخصوص حقائق اور قانونی مسائل کیا ہیں۔ تاہم، نکاح اور جہیز کے معاملات میں عموماً درج ذیل منفرد نکات پر فیصلہ کیا جا سکتا ہے:
1. **نفقہ کی بنیاد پر مالی حیثیت کا تجزیہ
**: عدالت نے یہ فیصلہ کیا کہ نفقے کی رقم کا تعین صرف درخواست گزار کی مالی حیثیت پر منحصر نہیں ہے، بلکہ اس میں اس کی ضروریات اور حالات کو بھی مدنظر رکھا جائے گا۔
2. **جہیز کی قیمتوں کی تصدیق*
*: عدالت نے ایک خاص اصول وضع کیا کہ جہیز کے سامان کی قیمتوں کی تصدیق اور ان کی ادائیگی کا تعین اس بات پر ہوگا کہ آیا ان قیمتوں کا حساب کتاب اور وصولی صحیح طریقے سے کی گئی ہے۔
3. **علاقائی یا مقامی قوانین کا اطلاق
**: عدالت نے خاص طور پر مقامی یا علاقائی قوانین کو مدنظر رکھا اور فیصلہ کیا کہ ان قوانین کی روشنی میں نفقہ اور جہیز کے معاملات کیسے حل کیے جائیں گے۔
یہ منفرد نکات کیس کے مخصوص حالات اور قانونی تشریحات پر منحصر ہوتے ہیں اور مختلف مقدمات میں مختلف ہو سکتے ہیں۔
یہ عدالتی فیصلہ دو درخواستوں کا مجموعی جائزہ پیش کرتا ہے: W.P. No. 4265 of 2020 اور W.P. No. 12666 of 2020، جو مشترکہ قانون اور حقائق پر مبنی ہیں۔
### تفصیلات:
1. **پیش منظر**:
- **مدعا علیہ**: مِسز نعیم فاطمہ (جو جواب دہندہ نمبر 1 ہیں) اور مِسز قرۃ العین فاطمہ (جو نابالغ ہیں) نے اپنے نفقہ، مہر، جہیز کے سامان، اور نابالغ کے ولادت کے اخراجات کی بازیابی کے لئے مقدمہ دائر کیا۔
- **مدعا علیہ**: عرفان محسن (جو درخواست گزار ہیں) کے خلاف۔
2. **فیصلے کا پس منظر**:
- **خاندانی عدالت** نے جواب دہندہ نمبر 1 کے نفقے اور ولادت کے اخراجات کی بازیابی کی درخواست کو مسترد کرتے ہوئے مہر، جہیز کے سامان کی قیمت، اور نابالغ کے نفقے کی حد مقرر کی۔
- **اپیلٹ عدالت** نے نفقے کی رقم کو کم کرتے ہوئے اور کچھ فیصلوں کو برقرار رکھتے ہوئے درخواست گزار کے حق میں فیصلہ کیا۔
3. **درخواست گزار کی دلائل**:
- درخواست گزار کے وکیل نے بتایا کہ چونکہ جواب دہندہ نمبر 1 کی دوسری شادی تھی، لہذا جہیز کے سامان کا دعویٰ غلط ہے۔
- انہوں نے مزید کہا کہ نکاح نامے کی کچھ تفصیلات غیر درست تھیں اور نکاح خواں/رجسٹرار کی نیک نیتی پر سوال اٹھائے۔
4. **جواب دہندہ کے وکیل کی دلائل**:
- جواب دہندہ کے وکیل نے کہا کہ نکاح نامے میں درج جہیز کے سامان کی قیمت کا دعویٰ مسترد نہیں کیا جا سکتا اور درخواست گزار کی مالی حیثیت اچھی ہے، لہذا نفقے کی رقم میں مزید کمی نہیں کی جا سکتی۔
5. **عدالت کا فیصلہ**:
- عدالت نے تسلیم کیا کہ جہیز کے سامان کا دعویٰ درست ہے اور اس کے عوض رقم کی بازیابی کی جائے۔
- عدالت نے نفقے کی رقم پر بھی غور کیا اور اسے مناسب قرار دیا، بتاتے ہوئے کہ شوہر کی مالی حیثیت کے مطابق نفقے کی رقم معقول ہونی چاہئے۔
یہ فیصلہ نکاح نامے کی درستگی، جہیز کے سامان کی قیمت، اور نفقے کی رقم کے تعین پر مبنی ہے، اور عدالت نے درخواست گزار کی مالی حیثیت اور جواب دہندہ نمبر 1 کے دعوے کو مدنظر رکھتے ہوئے اپنا فیصلہ سنایا۔
Must read judgement
StereoHCJDA 38
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.4265 of 2020.
Irfan Mohsin
Versus
Additional District and Sessions Judge & others
JUDGMENT
Date of hearing: 06.03.2024 & 12.03.2024.
Petitioner by:
Mr. Ghulam Abbas, Advocate.
Respondents by: Mian Qamar Zaman Mahaar, Advocate.
Shujaat Ali Khan, J: - Through this single judgment, I
intend to decide W.P. No. 4265 of 2020 (this petition) as well
as W.P. No. 12666 of 2020 (connected petition) having
commonality of law and facts.
2.
Unnecessary details apart, the facts as gleaned out from
these petitions are that Mst. Naeem Fatima (hereinafter to be
referred as respondent No.1) and Mst. Qurat Ul Ain Fatima
(hereinafter to be referred as the minor) filed a composite
suit for recovery of their maintenance; recovery of dower
amount worth Rs.100,000/- as per entry against column No.14
of Nikah Nama; recovery of Rs.100,000/- as per condition
stipulated against column No.19 of Nikah Nama; recovery of
W.P. No.4265 of 2020.
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dowry articles worth Rs.200,000/- as per column No.16 of
Nikah Nama and delivery charges of the minor worth
Rs.50,000/-, against Irfan Mohsin (hereinafter to be referred
as the petitioner). The learned Judge Family Court, Depalpur
(learned trial Court) vide judgment and decree, dated
17.05.2019, while dismissing the claim of respondent No.1 for
recovery of delivery charges as well as her maintenance,
declared her entitled to recover dower amount of Rs.100,000/-
in addition to Rs.100,000/- in terms of condition mentioned
against column No.19 of Nikah Nama and Rs.150,000/- as price
of dowry articles. Further, the minor was held entitled to
recover maintenance at the rate of Rs.8,000/- per month from
the date of institution of suit till her legal entitlement with 10%
annual increase. Aggrieved of the judgment and decree of
learned trial Court, the petitioner filed an appeal and the learned
Additional District Judge, Depalpur (learned appellate Court)
vide judgment and decree, dated 02.11.2019, while reversing
the findings of learned trial Court to the extent of recovery of
Rs.100,000/- as per condition mentioned against column No.19
of Nikah Nama, reduced the quantum of maintenance of the
minor from Rs.8,000/- to Rs.6,000/- per month and upheld rest
of the findings of learned trial Court. Aggrieved of judgments
and decrees of learned trial Court as well as learned appellate
W.P. No.4265 of 2020.
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Court the petitioner has filed this petition whereas through the
connected petition, respondent No.1 has assailed the vires of
judgment & decree of learned appellate Court.
3.
The submissions made by Mr. Ghulam Abbas, Advocate,
representing the petitioner, can be summed up in the words that
since it was second marriage of respondent No.1 with the
petitioner, no dowry articles were given at the time of her
marriage; that though in her plaint, respondent No.1 averred
that her father, being an agriculturist, was enjoying sound
financial position at the time of her marriage but she did not
produce any document in that regard, thus, her stance remained
unproved; that credibility of the witnesses, produced by
respondent No.1, stands shattered from the fact that they
claimed that at the time of marriage respondent No.1 was
bachelor but as a matter of fact she was divorcee; that since the
couple did not shift to the house of the petitioner rather they
celebrated first night of their wedding in the house of paternal
uncle of the petitioner, no dowry articles were given to
respondent No.1 at the time of her marriage; that both the
Courts below have relied upon the entries against column No.16
of Nikah Nama to believe that the dowry articles were given to
respondent No.1 but said column is meant for anything which is
given in the shape of land etc. in lieu of dower in addition to
W.P. No.4265 of 2020.
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cash, hence contents of said column were erroneously relied
upon by the courts below; that as a matter of fact at the time of
marriage, all columns of Nikah Nama were not filled in rather
the Nikah Khawan/Registrar got signed and thumb marked the
same with blank columns and later on, he, in connivance with
the parents of bride, introduced certain conditions which were
never settled between the parties; that malafide on the part of
Nikah Khawan/Registrar is evident from the fact that during
evidence he stated in clear-cut words that his licence was never
cancelled but the documents produced by the petitioner speak
otherwise; that Nikah Khawan/Registrar was summoned by the
Court (who was wrongly marked as DW-3 instead of CW) but
respondent No.1 did not cross-examine him to unveil the truth
simply for the reason that she, being beneficiary of interpolation
in the Nikah Nama, was not ready to unearth the truth; that
admission on the part of the Nikah Khawan/Registrar that
Nikah Nama was deposited with the Secretary Union Council
after seventeen days of marriage stands proof of the fact that he
tinkered with entries of Nikah Nama from the date of marriage
till deposit of the same in the Union Council; that bona fide of
the petitioner is evinced from the fact that he filed application
before the trial court for summoning of the Secretary Union
Council as witness but the same was dismissed by learned trial
W.P. No.4265 of 2020.
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Court on the ground that after recording statement of Nikah
Khawan/Registrar, there was no need for examination of the
Secretary Union Council concerned; that since the petitioner
has been paying maintenance of the minor without any fail, no
ill-will can be attributed to him and that the petitioner is ready
to continue payment of maintenance of the minor as per
judgment and decree of the learned appellate Court.
4.
Conversely, learned counsel appearing on behalf of the
respondents, while opposing the submissions made by learned
counsel for the petitioner, states that since it was mentioned
against column No.16 of Nikah Nama that dowry articles worth
Rs.2,00,000/- were given to respondent No.1, the petitioner
being signatory of said document, could not escape his liability
to return the same or to pay its alternate price to respondent
No.1; that there is no material difference in entries of Nikah
Namas, referred by learned counsel for the petitioner, thus, the
same cannot be used to the dis-interest of respondent No.1; that
when the petitioner himself admitted in evidence that father of
respondent No.1 was an agriculturalist by profession, it did not
lie in his mouth to claim that her parents did not enjoy sound
financial position at the time of marriage; that on the one hand
stance of the petitioner is that no dowry articles were given to
respondent No.1 but on the other, during cross-examine, he
W.P. No.4265 of 2020.
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while taking U-turn stated that the dowry articles, given by the
parents of respondent No.1, were returned to her; that the
petitioner, being owner of about 800-kanals of land, can afford
maintenance of the minor at much higher rate as decreed by
learned appellate Court; that since the petitioner was dealt with
leniently by the learned trial Court, no further leniency can be
shown by this Court in exercise of its constitutional jurisdiction
vested under Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973; that the petitioner is maintaining
children from his first wife in a proper manner and the
respondents would be satisfied if similar treatment is given to
the minor; that the petitioner while appearing as DW-1 admitted
that he put his signatures on the Nikah Nama in English, thus, it
cannot be believed that such literate person signed the same
without entries against all columns of Nikah Nama; that a
cursory glance over the Nikah Nama, referred by learned
counsel for the petitioner, shows that nowhere respondent No.1
claimed herself to be a bachelor rather she was mentioned as
divorcee in the Nikah Nama, thus, the petitioner cannot take
premium of any minor discrepancy in the statements of the
PWs; that mala fide on the part of the petitioner is established
from the fact that certain amount on account of maintenance of
the minor is due against him and that the quantum of
W.P. No.4265 of 2020.
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maintenance fixed by learned appellate Court is hardly
sufficient to meet with the expenses of the minor especially her
educational expenditures.
5.
While exercising his right of rebuttal, learned counsel for
the petitioner submits that the intention of the petitioner to
produce various copies of Nikah Nama is to establish that not
only the names of the witnesses were different on all of them
but also entries of said Nikah Namas were not filled in at the
time of marriage rather the same were filled in by the Nikah
Khawan/Registrar at some subsequent stage in connivance with
parents of respondent No.1 and that stance of respondent No.1
that her parents enjoyed sound financial status stands negated
from her plea that now-a-days she is earning her bread and
butter by working as housemaid in Lahore city inasmuch as
according to custom in the locality where the parties are
residing, if any daughter is divorced/deserted by her husband,
her parents or brothers use to maintain her.
6.
I have heard learned counsel for the parties at
considerable length and have also gone through the documents,
annexed with this petition.
7.
Firstly, taking up the question as to whether dowry
articles were given to respondent No.1 or not, I have noted that
W.P. No.4265 of 2020.
--8--
though in the written statement the petitioner claimed that since
it was second marriage of respondent No.1, no dowry articles
were given but said stance of petitioner stands negated from the
following portion from his affidavit-in-evidence (Exh.D-1):
دماعہیلع یک دعم وموجدیگ ںیم دمہیع ےک رہتش دا را ن ، اھبیئ ا ور وادلنی دماعہیلع ےک رھگ ےس امتم رھگولی اسامن وچری
رک ےک ےل ےئگ۔
Further, with a view to improve his case, the petitioner during
his cross-examination introduced a new story that the dowry
articles given to respondent No.1 were taken back by her
parents. In this regard, following portion from the statement of
petitioner can be referred with convenience:-
ہی درتس ےہ ہک ریمے اپس اسامن ااھٹےن یک ابتب وکیئ رحتریی وبثت ہن ےہ۔ ا ز وخد اہک ہک ںیم اس وتق رھگ ہن اھت
بج اسامن ااھٹای ایگ۔
Moreover, Ghulam Nabi (DW-2) in his affidavit-in-evidence
(Ex.D-2) averred as under:
ر و ںیم دمہیع ، وادل دمہیع و درگیا ن ےن دماعہیلع ےک رھگ ےس امتم رھگولی اسامن وچری رک ایل ا دماع ہیلع یک دعم وموجدیگ
۔ اےنپ رجم رپ رپدہ ڈاےنل ےئلیک دوعٰی ونعا ن ابال دارئ رک دای
However, the said witness during his cross examination, while
responding to a question relating to return of dowry articles
stated as under: -
اسامنزیہجریمیوموجدیگںیمدمہیعےکوادلنیاُاھٹےکےلےئگےھت۔اسامنزیہجاُاھٹےنیکابتبریمےاپس
۔ و
W.P. No.4265 of 2020.
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A conjunctive reading of the afore-quoted portions from the
statements of DW-1 and DW-2 renders its crystal clear that
dowry articles were given to respondent No.1 notwithstanding
the entry against column No.16 of Nikah Nama.
8.
I am in agreement with the learned counsel for the
petitioner that Column No.16 of Nikah Nama is meant for
mentioning of anything which is given to a bride as part of
dower in addition to cash in terms of Column No.13 of Nikah
Nama but when the petitioner himself admitted that dowry
articles, given to respondent No.1, were either stolen by her
parents or they received the same back, adverse opinion cannot
be formed against respondent No.1 simply for the reason that
factum of dowry articles was mentioned against an irrelevant
column of Nikah Nama.
9.
According to section 6(2A) of the Muslim Family Laws
Ordinance, 1961, the Nikah Registrar or the person who
solemnizes a Nikah shall accurately fill all the columns of
the nikahnama form with specific answers of the bride or the
bridegroom. Moreover, according to section 5(5) of the said
Ordinance, the form of nikahnama, the registers to be
maintained by Nikah Registrars, the records to be preserved by
Union Councils, the manner in which marriages shall be
registered and copies of nikahnama shall be supplied to the
W.P. No.4265 of 2020.
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parties, and the fees to be charged therefor, shall be such as may
be prescribed. If Nikah Khawan/Registrar fails to perform his
duties diligently instead of taking any action against any party,
Nikah Khawan/Registrar should be held accountable as held by
this court in the case reported as Shah Din and others v. The
State (PLD 1984 LHR 137) relevant part whereof reads as
under:-
“7. I feel here mentioning an important point having far
reaching consequences. The incidents giving rise to
proceedings like the one in hand can be greatly reduced
if the Nikah Registrars appointed under the Muslim
Family Laws Ordinance, 1961, instead of simply filling
the various columns of the Nikahnama, in routine, realize
that the duty that they are required to perform is very
sacred because rights to succession, maintenance, dower,
divorce, legitimacy of children and several other rights
flow from a valid marriage. As public servants which
essentially they are, they should demonstrate more sense
of responsibility before authenticating the Nikah by
making proper enquiries as to the competency of the
parties to understand the nature of their act, their ages
and whether or not they are so acting of their free will
and without any compulsion.
In our society, the girl is normally given in marriage by
her parents and in their absence by the nearest blood
relation and that too mostly at her ordinary place of
residence. If this solemn ceremony is performed by the
persons not answering the above description and at a
place other than the ordinary place of residence of the
girl in closed doors under mysterious circumstances a
heavy duty is cast on the Nikah Registrars to thoroughly
confirm and probe into the circumstance under which the
marriage is being solemnized before authenticating the
same. If they fail, they can, to a grant (sic) extent, be held
responsible for the complications that follow in addition,
to running the risk of being involved in litigation, both
civil and criminal.
W.P. No.4265 of 2020.
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Further, this Court, while highlighting the violation of the
SOPs/Policy issued by the Director General, Local Government
and its repercussions inter alia observed as under:-
“5. It may further be appropriate to observe that
although in compliance with the above noted directions
issued by this Court, the Directorate General LG&CD
Punjab, Lahore has issued SOPs vide Notification
No.LG&CD/AD(CD)47/2020/Court Cases,
dated
27.08.2020, but still the violations of the above noted
provisions, directions and SOPs are being made by the
Nikah Khawan/Nikah Registrars and others. The Nikah
Registrars instead of filling in, each column of the
Nikahnama with specific reply/answer of the parties to
the marriage, are still continuing with their practice of
placing single vertical line against all or more than one
column or leaving the columns blank in the Nikah Nama,
rendering themselves liable for initiation of proceedings
against them under the law. After perusing the Nikahnama (Annexure-A) appended with the file, it evinces that
against most of the columns of the Nikahnama, the Nikah
Registrar has opted to place single vertical line and had
also left some of the columns blank. He has not
accurately fill in the same with requisite/specific reply of
bride or the bridegroom, which is clear-cut violation of
the aforesaid directions issued by this Court and the
SOPs issued by the Directorate General LG and CD
Punjab, Lahore. Therefore, the matter is referred to the
Chief Officer, Burewala, District Vehari for initiation of
penal proceedings against the Nikah Registrar/
delinquent, after affording an opportunity of hearing to
him and report thereof shall reach to this Court through
D.R Judicial within a period of one month, after receipt
of copy of this order.”
Though, the direction/observation of this Court does not admit
any kind of ambiguity but even then public-at-large is facing
unnecessary litigation on account of inefficiency on the part of
W.P. No.4265 of 2020.
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the Nikah Khawan/Registrar towards completion of entries in
Nikah Nama inviting stern action against the hoodlums.
10. Now coming to the plea of the petitioner that since
certain conditions, which were not settled between the parties,
were incorporated by the Nikah Khawan/Registrar in Nikah
Nama, I am of the opinion that if the petitioner was of the view
that the Nikah Khawan/Registrar mentioned un-settled
conditions in the Nikah Nama, he could conveniently approach
the Deputy Commissioner or the authorities of the Local
Government concerned for rectification in addition to putting
the criminal machinery in motion by filing a complaint before
the relevant authority as a Nikah Khawan/Registrar falls within
the definition of „public servant‟ in terms of section 21 of
Pakistan Penal Code. Though learned counsel for the petitioner
addressed the Court at certain length but has not referred to any
material to show that the petitioner challenged the entries of
Nikah Nama before relevant forum, thus he cannot take
premium of inaction on his part.
11. Now the next question which boils down for
determination by this Court as to whether dowry articles given
to respondent No.1 were returned to her by the petitioner or not.
Initially, the onus to prove that dowry articles were given to her
was on the shoulders of respondents No.1 but when DW-1 and
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DW-2 stated that dowry articles, given to respondent No.1,
were either stolen or received back by her parents, it was
responsibility of the petitioner to prove that dowry articles
given to respondent No.1 were returned. While replying to a
question as to whether they were equipped with any proof
relating to return of dowry articles, DW-1 and DW-2 answered
in negative. It is well settled by now that if an oral assertion of a
witness is not corroborated by relevant document, it is not safe
to rely upon such oral assertion while deciding lis between the
parties.
12. It is important to mention over here that while entering in
witness box as DW-1, the petitioner, during cross-examination,
admitted that Muhammad Khan, father of respondent No.1, was
an agriculturist by profession. According to the custom
prevalent in our society, families having agriculturist
background, use to give dowry articles to their daughters at the
time of marriage irrespective of the fact as to whether it was her
first or second marriage. Further, learned counsel for the
petitioner has not been able to convince this Court as to why
dowry articles were not given to respondent No.1 rather his
stance was that as first wedding night was solemnized in the
house of paternal uncle of the petitioner, no dowry articles were
given at the time of marriage. In this regard, I do not see eye-
W.P. No.4265 of 2020.
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to-eye with learned counsel for the petitioner for the reason that
according to own showing of the petitioner he had earlier
marriage, thus, spending of first night of marriage in the house
of his paternal uncle is understandable, thus, said fact cannot be
used to believe that dowry articles were not given to respondent
No.1.
13. Now coming to the question regarding the quantum of
dowry articles, this Court is of the view that as father of
respondent No.1 was owner of reasonable chunk of land at the
time of marriage between the parties, it cannot be believed that
he was not in a position to give dowry articles worth
Rs.2,00,000/- to his daughter. It has also not specifically been
denied by learned counsel for the petitioner that there is custom
in the locality that daughters are given dowry articles at the
time of their marriage. Thus, findings of both the courts below
on the point of dowry articles do not warrant any interference
by this Court.
14. Now coming to the quantum of maintenance of the
minor, I am of the view that when a person enjoys bliss of more
than one wife he is bound to maintain his wives and children in
a befitting manner. Reliance in this regard can be placed on the
case reported as Mian Arif Mehmood v. Mst. Tanvir Fatima and
another (PLD 2004 Lahore 316) wherein the liability of a
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husband having more than one wife has been dilated upon in
the following manner: -
“10. This brings me to the most important question
involved in this petition, viz. the quantum of maintenance
of Rs.8,000 per mensem awarded in favour of the
respondent. Learned counsel for the petitioner has
submitted that it is unreasonable. According to him, the
intention of the law is to provide maintenance against
starvation and consequent vagrancy, and it had never
been the intendment of the Legislature to provide
anything more than food, clothing and bedding. The
contention has no force. Section 9 of the Muslim Family
Laws Ordinance, 1961 reads as follows:--
"9.Maintenance.--(1) If any husband fails to
maintain his wife adequately or where, there are
more wives than one fails to maintain them
equitably, the wife, or all or any of the wives may
in addition to seeking any other legal remedy
available, apply to the Chairman who shall
constitute an Arbitration Council to determine the
matter, and the Arbitration Council may issue a
certificate specifying the amount which shall be
paid as maintenance by the husband.
(2) A husband or' wife may in the prescribed
manner, within the prescribed period, and on
payment of the prescribed fee, prefer an
application for revision of the certificate, to the
Collector, concerned and his decision shall be
final and shall not be called in question in any
Court.
(3) Any amount payable under subsection (1) or
(2) if not paid in due time shall be recoverable as
arrears of land revenue."
A plain reading of section 9 (ibid) means that a husband
has to maintain, his wife "adequately" and if he has more
wives than one, he must, maintain them "equitably".
Therefore, the maintenance should not be bare minimum
sustenance allowance but a convenient provision in
consonance with what the husband can afford as also
what are the needs of the wife. It is not the meeting of the
W.P. No.4265 of 2020.
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mere wants by way of sustenance because in these days
of inflationary trend and the constant rise in the cost of
living index, it is bound to work hardship on the wife. A
person taking on the responsibility of marriage has to
maintain his wife, and it is in all cases necessary to
ascertain the visible means and the earning capacity of
the husband. Therefore, in fixing the maintenance, the
Court has to take into consideration not only the needs of
the wife but also the paying capacity and circumstances
of the husband who is liable to pay maintenance.
Whereas to insist upon conformance to the principle of
bare minimum sustenance allowance, particularly in a
case where the husband is in affluent circumstances,
would be not only inequitable but, unjustified, if upon
consideration of visible income of the husband, he is
found to be able to pay a little more to keep up the wife
going on an, even keel, it cannot be said that the Court
would thereby be pampering a wife who seeks to live
apart from the husband. However, the maintenance
allowance should neither be too heavy so as to tempt the
wife to stay away from her husband, neither too meager
so as to leave her high and dry. In my opinion, the
balance has to be struck. The amount of maintenance
payable to a wife should not be so small as to simply
keep her body and soul together. It has to be an amount
which could be enough to keep her at least financially in
comfort, particularly in these days of high and rising
prices. In regard to determining what is; required by the
wife, the Court has to steer clear of two extremes viz. it
must not give maintenance to a wife which would keep
her in luxury and would make judicial separation
profitable, and also impede any future reconciliation. It
must also steer clear of the other extreme, viz.
penuriousness. Steering clear of these two extremes the
Court must see whether the amount to be fixed as
maintenance would be liberal or illiberal. If this is kept
in view, may be the couple will see the error of their ways
and might get reconciled and lead a happy domestic life,
unless they have already parted ways, as is the case here.
11. The question of quantum of maintenance is a matter
primarily in the discretion of the trial Court which has to
take into consideration several factors, like the status of
the family, the learning capacity, commitments of the
husband, and what is required by the wife to maintain
herself. In the present case, the respondent has led
W.P. No.4265 of 2020.
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evidence to show that the petitioner is possessed of
considerable assets and income. Since the petitioner has
remained ex parte before the Arbitration Council, there
is nothing on record to controvert the evidence adduced
by the respondent. Even in his revision petition and the
writ petition, the petitioner has not thrown a successful
challenge to the evidence produced by the respondent.
Moreover, it is not the case of the petitioner that the
respondent is a lady who, belongs to a class who go out
for work for earning their livelihood. Since the petitioner
had not entered appearance before the Arbitration
Council and was proceeded against ex parte, there is
nothing on record to dislodge the evidence produced by
the respondent. The petitioner has not brought on record
of this petition even the evidence produced before the
Arbitration Council by the respondent. In the
circumstances, it cannot be said that any material piece
of evidence has been misread or excluded from
consideration.”
If the quantum of maintenance of the minor is considered in the
light of the afore-quoted judgment, the documents produced by
learned counsel for the respondents during the course of
arguments are suggestive of the fact that respondent No.1 is
incurring huge amount on maintenance of the minor especially
towards her educational expenses. Likewise, since respondent
No.1 did not bother to challenge the findings of learned trial
Court on the point of maintenance for the minor, she cannot
claim increase in the maintenance more than that decreed by the
learned trial Court. Moreover, the question as to whether
anything is outstanding against the petitioner on account of
maintenance of the minor, the same would be decided by the
learned executing court, thus, any observation made in that
W.P. No.4265 of 2020.
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regard may prejudice the case of either party before the
executing forum.
15. For what has been discussed above, while dismissing
this petition connected petition is partially accepted and
findings of the learned appellate Court on the point of
maintenance of the minor are set-aside. As a result, findings of
learned trial Court on the said point shall hold the field. Rest of
the findings of the learned appellate Court shall remain intact.
No order as to costs.
16. Before parting with this order, it is observed that if in
future respondent No.1 considers the quantum of maintenance
insufficient to cater for the needs of the minor, she would be at
liberty to institute fresh suit or to file miscellaneous application
for increase in the awarded maintenance.
Judge
Approved for Reporting.
Judge