SHER ZAMAN Versus Mst. MAHZARI

MUHAMMAD YOUNIS THAHEEM, J.--- Through the instant constitutional petition, petitioner has called into question the judgment and decree of learned appellate Court of Additional District Judge-IV, Swabi dated 23.04.2016.

2. Brief facts of the case are that respondent No.1 filed family suit against the petitioner for recovery of maintenance for the last 30 years since 1978 up till now and onward till the existence of Nikah at the rate of Rs.5000/- per month, Rs.3,00,000/- for the education and medical expenses of minor daughter and Rs.1,00,000/- marriage expenses of her daughter after attaining majority. The suit was contested by the petitioner and filed written statement. After fulfilling all codal formalities, learned Judge Family Court partially decreed the suit vide judgment and decree dated 20.06.2014. The relevant para of judgment and decree is reproduced as below:-

RELIEF.

As sequel to my above issue wise findings plaintiff held entitled for the following reliefs:-

1. Plaintiff is entitled to the recovery of future maintenance allowance @ Rs.5000/- per month till existence of Nikah subject to rehabilitation with the defendant.

2. Plaintiff is entitled to the recovery of Rs.1,00,000/-(one lac) for the expenses borne over her daughter.

3. Being aggrieved plaintiff/ respondent No.1 preferred appeal which after hearing by the learned Additional District Judge-Swabi was partially allowed vide impugned judgment and decree dated 23.04.2016, and the judgment and decree of learned Judge Family Court was modified. The relevant portion of judgment is reproduced as under:--

"Keeping in view the above mentioned facts and reasons, the impugned judgment/decree of the learned trial Court dated 20.06.2014 is set aside and modified to the extent, that the appellant/plaintiff is held entitled at the rate of Rs.5000/- per month for the six years past maintenance from the institution of the suit, till the decision of the case before the learned trial Court, she is also held entitled to further maintenance at the same rate subject to, she reside with the respondent/defendant as wife, while rest of the suit of the appellant/plaintiff is dismissed. The appeal is accepted accordingly."

4. Present petitioner being dissatisfied from the impugned Judgment and decree dated 23.04.2016, passed by learned Additional District Judge-IV, Swabi, filed the instant writ petition.

5. Arguments heard and record perused.

6. From the perusal of record it reveals that admittedly the respondent No.1 was ousted from the house by petitioner some 30 years back when the daughter of the petitioner was minor and neither daughter nor her wife was paid maintenance since then. Similarly neither dower amount nor expenses regarding marriage of his daughter nor expenses on the maintenance of daughter has been decreed despite admission of defendant that he has not paid any maintenance for daughter or his wife but the learned appellate Court had modified the judgment of learned trial Court to the extent of past maintenance or plaintiff for the past six year from the date of institution of suit.

7. This Court is of the view that under Islamic law the husband is liable to maintain his wife and children from the very date when marriage is solemnized. It is on record and proved from the evidence that the plaintiff/respondent was ousted and was subjected to cruel behavior by defendant/petitioner so many time but she join the marital life on the intervention of Jirga, and again due to his cruel behavior was ousted from his house and she is residing in her parents house for the last 30 years and is still there but the petitioner neither divorced her so that she could marry to some other one nor bother to maintain her nor his daughter which is Zulm-e-Azeem to a Muslim who live under the protection of Islamic law. Under Article 2-A of the Constitution of Pakistan, the Quran and Sunnah is the basic law of the land and section 9 of Muslim Family Laws Ordinance 1961 is a special law. In the said Ordinance no specific period of limitation has been prescribed for past maintenance particularly the dispute relating to the payment of maintenance to the wife by her husband are governed according to injunctions of Islam.

8. In the instant case the husband/ petitioner did not pay any maintenance allowance, educational expenses, marriage expenses for his daughter, and maintenance allowance to his wife to meet daily material needs like food and clothes etc which was his duty to bear according to injunction of Islam, so, the provisions of limitation prescribed under Article 120 of Limitation Act for the recovery of past maintenance is not in stricto sensu are applicable to the extent as the husband is responsible for the maintenance of his wife from the day when Nikah is solemnized and daughter when she born, so in this case under the circumstances in the wake of admission made by the defendant during cross-examination he is responsible to pay the maintenance from the date, month, year he ousted her till her life. The relevant admission is reproduced.

9. So both the Courts below erred in law by not considering the above admissions while decreeing the past maintenance for wife, so in my humble view the husband is bound to pay the maintenance for past 30 years to his wife and expenses claimed in Relief-II in the suit as Rs.3,00,000/- for her daughter and in the Relief-III Rs.1,00,000/- expenses on marriage of his daughter. So, both the learned Courts of respondents Nos.2 and 3 failed to appreciate the Islamic principles governing maintenance by decreeing maintenance only for past six years and not for past 30 years till her life. Similarly the maintenance of daughter is also the liability of father which in the instant case father has admitted that he did not pay any expenses for maintenance, education and marriage.

10. Thus in view of above discussion this petition is dismissed, however great injustice has been caused to the wife and daughter of petitioner, so despite the fact that respondent had not challenged the impugned judgment which might be due to economic constraints of neglected mother and daughter but this Court in exercise of its constitutional jurisdiction under Article 199, is vested with jurisdiction to provide relief to a party with whom injustice has been done, so the judgments and decrees of both the Courts below to the extent are set aside, modified and the suit of plaintiff/respondent No.1 is decreed as prayed for.

MQ/216/P Petition dismissed.