Mst. FARKHANDA MUMTAZ vs MUHAMMAD SHARIF and 2 others

UDGMENT Shahzad Akbar Khan, J.--Our this single judgment is meant to govern the disposal of W.P. No, 1508/2004 and W.P. No, 354/2005 as both these petitions have arisen out of the same judgment and decree.

2. Short facts relevant to the disposal of these writ petitions are that petitioner Mst. Farkhanda Mumtaz wife of Muhammad Sharif respondent filed Suit No, 159/I of 2002 for recovery of dowry articles, Suit No, 14/FC for maintenance whereas respondent Muhammad Sharif filed a suit for restitution of conjugal rights. All the 3 cases were consolidated and were disposed of through a common judgment dated 28.1.2004 passed by the Senior Civil Judge, Karak. In plaint of Suit No, 13/FC petitioner claimed that she was wedded to respondent in the year 1968 and that she was performing her marital obligations towards her husband that respondent left for Dubai and since long he was working there. She was however ignored totally by the husband and was not paid any maintenance allowance since March 1996. The suits of the petitioner were resisted by the respondent and the rival pleadings generated 7 issues apart from the relief. The parties adduced evidence in support of their respective contentions. On evaluating the evidence the learned trial Court dismissed the suit of the petitioner whereas suit of the husband regarding restitution of conjugal rights was decreed. Dissatisfied with the judgment and decree of trial Court the petitioner filed an appeal which was heard and decided by the learned District Judge, Karak on 9.7.2004. He accepted the appeal of the petitioner, dismissed the suit of the respondent for restitution of conjugal rights and passed a decree for the recovery of Rs, 3000/- per month from January 2002 till passing of the decree and for future. Muhammad Sharif respondent being aggrieved of the judgment and decree of the appellate Court filed a W.P. No, 354/2005. The petitioner Ma Farkhanda Mumtaz was also not satisfied with the judgment and decree of the learned Appellate Court and ventilated her grievances with regard to the monthly amount and. period of maintenance.

3. The learned counsel appearing on behalf of the petitioner has vehemently argued that as per law the petitioner was entitled to receive maintenance allowance for a period of 6 years preceding the institution of the suit. He urged that enormous evidence of high order and quality was produced by the petitioner/wife to establish her claim for the recovery of maintenance allowance for the period commencing from 1996 onward as the respondent/husband had deliberately ignored her for her legal rights to receive the maintenance. The learned counsel has placed reliance on Muhammad Nawaz vs. Mst. Khurshid Begum (PLD 1972 SC 302) and Mst. Anar Mamana vs. Misal Gul and two others (PLD 2005 Peshawar 194). He has also argued that the learned District Judge has not advanced any reason for making a reduction in the maintenance period. He further submitted that the respondent-husband has not been able to produce any evidence to controvert the claim of the petitioner.

4. On the other hand the learned counsel appearing for Muhammad Sharif respondent has raised the argument that the petitioner was not expelled by her husband rather she had left his house at her own free will, therefore, she is not entitled to any alimony. He contended that the decree passed by the learned District Judge for the payment of Rs, 3000/- per month in favour of the petitioner/wife is without lawful authority and be struck down accordingly.

5. We have heard and considered the rival arguments of the learned counsel for the parties. This is an admitted position that Muhammad Sharif respondent is residing in Dubai in connection with his business and has also contracted a second marriage. The second wife is residing with him in Dubai. Through her own statement and statement of P.Ws the petitioner has abundantly proved that her husband i,e, the respondent has failed to pay her any maintenance. In the circumstances when the respondent is residing in Dubai it become immaterial whether she was expelled by the respondent or had left his house at her own volition. There was no logic in her stay in the house of the husband when the husband himself is out of country. If she had taken shelter with her real brothers it cannot be considered that the petitioner had left the house of respondent in violation of her conjugal duties. No doubt the wife is under legal obligation to perform her marital duties towards the husband sincerely and must yield to the conjugal demands of the husband but in the instant case the situation is different. The petitioner has neither violated any marital norm nor she has refused to perform her conjugal obligations. The respondent is legally bound to maintain his wife even if he is abroad. Thus the arguments that petitioner had left the house of the respondent at her own will cannot operate to deprive the wife of her legal right of maintenance. It has also been admitted by Respondent Muhammad Sharif that he has the capacity to make payment of Rs, 5000/- per month to the wife provided it is justified. We have, examined the judgment of the learned District Judge but do not see any reason as to why the period of maintenance allowance was reduced. The law is now settled that suit for the past maintenance is governed by Article 120 of Limitation Act, 1908 prescribing a period of 6 years from the date of accrual of cause of action.

In view of the foregoing circumstances we allow W.P. No, 1508/2004 and decree the suit of the petitioner for her maintenance at the rate of Rs, 3000/- per month for a period of 6 years preceding the institution of the suit and onward. In view of the acceptance of this writ petition the rival W.P. No , 354/2005 stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.