QASIM RAZA Versus ADDITIONAL DISTRICT JUDGE MAILSI DISTRICT VEHARI

MUDASSIR KHALID ABBASI, J.--- Through this petition under Article 199 of the Constitution, petitioner has challenged the legality of judgments and decrees dated 08.03.2014 and 11.12.2012 passed by respondents Nos. 1 and 2 respectively.

2. Brief facts of the case are that respondent No.3 filed a suit for recovery of maintenance allowance and dower to the tune of 5-tolas gold ornaments as well as constructed house No.335/08 measuring an area of 4-marlas according to condition No.13 or Nikahnama dated 06.02.2002 or its value Rs.10,00,000/- which was contested by petitioner by filing written statement. Issues were framed and evidence of both the parties was recorded. Vide impugned judgment and decree dated 11.12.2012, learned Judge Family Court, Mailsi, District Vehari/respondent No.2 decreed the suit of respondent No.3 in the following terms:

"Plaintiff is entitled to recover maintenance allowance at the rate of Rs.1500/- per month along with 15% increase annually from the date of institution of the suit till payment of dower. As regard the claim of dower is concerned, the plaintiff has proved her case to the extent of 2-1/2 tolas gold ornaments and a constructed house measuring an area of 4-M, hence, the claim of plaintiff to the extent of 2-1/2 tolas gold ornaments and a constructed house measuring an read of 4-M is decreed in her favour whereas to the extent of 2-1/2 tolas gold ornaments is dismissed."

Feeling aggrieved, petitioner as well as respondent No.3 filed their appeals separately before respondent No.1/learned Additional District Judge, Mailsi District Vehari which were dismissed vide impugned consolidated judgment and decree dated 08.03.2014.

3. Petitioner has filed a separate suit for restitution of conjugal rights before learned Judge Family Court Kehror Pacca, District Lodhran which was decreed subject to arrangement of separate resident for respondent No.3 and payment of maintenance allowance and dower as per her entitlement, vide judgment dated 02.02.2013.

4. Learned counsel for the petitioner contends that judgments and decrees of both the courts below are result of misreading and non-reading of evidence on record. Further contends that both the courts below have over looked the fact that statements of respondent No.3 are contradictory. Further argued that findings of both the courts below are against the law and facts of the case, therefore, same are liable to be set aside.

5. On the other hand, learned counsel for respondent No.3 opposed the contentions raised by the learned counsel for the petitioner and argued that there is no misreading and non-reading of evidence available on the record. Further contends that there is no illegality or infirmity in the impugned judgments and decrees of courts below. Further argued that the petition is without any substance, therefore, same is liable to be dismissed.

6. Arguments heard. Record perused.

7. At the outset, learned counsel for the petitioner states that, for the time being, he shall press this petition only to the extent of 2-1/2 tolas gold ornaments and a constructed house measuring 4-marlas. Admittedly, this has been decreed in favour of the respondent, as deferred dower and the marriage still subsist, between the parties.

8. Main thrust of learned counsel for the petitioner is that deferred dower would be payable only in the eventuality of dissolution of marriage either by the death of husband or divorce. Reliance is placed on 2009 SCMR 1458. Case of the respondent No.3 is that petitioner has contracted marriage without her permission during the subsistence of earlier marriage. This has not been controverted by the defendant in the statement recorded before the trial court.

9. This particular case is distinguishable from the facts of the case law referred above because section 6(5)(a) of Muslim Family Laws Ordinance 1961, stipulates that husband who contracted second marriage during the subsistence of earlier one, without permission of the arbitration council is liable to pay entire amount of dower either prompt or deferred. It would be beneficial to reproduce section 6(5)(a) of Muslim Family Laws Ordinance 1961, which reads as under:-

6. Polygamy:

(5) Any man who contracts another marriage without the permission of the Arbitration Council shall:

(a) Pay immediately the entire amount of dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid shall be recoverable as arrears of land revenue."

Reliance is placed on 2009 CLC 374 titled "Munazza Noor and 2 others v. Additional District Judge, Khanewal and 2 others".

In view of the forgoing reasons, this petition does not succeed and is dismissed. No order as to cost.

MQ/Q-2/L Petition dismissed.