MUHAMMAD YOUNUS Versus COLLECTOR, DISTRICT SIALKOT

ORDER

MUHAMMAD AFZAL ZULLAH, J .-‑Leave to appeal has been sought by a husband from a judgment of the Lahore High Court in its Constitutional jurisdiction; whereby it refused to interfere with the orders of maintenance passed in favour of the respondent‑wife.

2. We have noticed from the record that the maintenance was ordered to be paid by the petitioner for the period of separation between the parties. Subsequently, however, it seems that they reconciled their differences. The respondent started residing with the petitioner. If that position is correct, a question might arise why should the respondent insist upon the recovery of the amount of maintenance directed to be paid to her for the period of previous separation. It is argued that, in order to keep the relationship between the spouses normal, the wife might have given up her insistence to recover that amount which had legally become due to her. But on the other hand, the Islamic principle that a wife is entitled, as of right, to own private property independent of the right of her husband to own his property, would support the respondent's insistence to recover it (the amount of maintenance)‑‑the right to recover it through a Court decree has become her property. She is entitled to exercise that right by receiving the amount and keeping it as a separate property of her own.

3. When we pointed out this distinction to the learned counsel for the petitioner, he frankly conceded the right of the respondent wife, referred to above. But at the same time stated that the spouses having again separated, the respondent's insistence on making recovery of the previously decreed amount of maintenance, might jeopardize the efforts at compromise, for the second time.

4. While lauding the sentiments of the learned ccunsel in so far as they relate to another effort by his client for reconciliation; but, in a case like the present one, which falls within our discretionary jurisdiction‑‑to grant or withhold leave to appeal, we would certainly uphold the Islamic principle with regard to the right of a woman/wife to own and enjoy property independently of a similar right of her male relations living under the same roof, whether he is a husband, brother, son or father, not to speak of others. Therefore, treating it as not a fit case for leave to appeal, we have declined to grant the same. Accordingly, the petition is dismissed.

M . B . A . / M‑459/ S Petition dismissed.