P L D 2024 Balochistan 158
Before Muhammad Ejaz Swati and Muhammad Aamir Nawaz Rana, JJ
MIHRAL and another ---Petitioners
Versus
Mst. ZARGUL and another ---Respondents
C. P. No. (T) 04 of 2022, decided on 29th November, 2022.
(a) Family Courts Act (XXXV of 1964) ---
----S. 5, Sched.---Suit for recovery of dower (85 Misqal gold) ---Dower --- Proof ---Claim of the
plaintiff/lady was concurrently decreed to the effect that only 15 Misqal gold, out of fixed
100 Misqal gold, was given to her ---Plea taken by the petitioner/husband was that 24 Misqal
gold had been paid at the time of Nikkah--- Validity ---Haq -Meher (dower amount), was
admittedly fixed as 100 Misqal gold, as the witnesses of the petitioner/husband before the Trial Court had admitted said fact---Record (evidence) revealed that the petitioner failed to
prove his plea, therefore, the decree to the extent of 85 Misqal gold as Haq- Meher, had
correctly been passed by both the Courts below by appreciating the evidence produced by the
parties ---Constitutional petition, filed by husband, was disposed of.
(b) Family Courts Act (XXXV of 1964) ---
----S. 5, Sched.--- Suit for recovery of maintenance allowance---Father/husband alleged to be
of unsound mind--- Proposition was whether the defendant (husband/father) was of unsound
mind ---Held, that though the proposition, whether petitioner No.1 (defendant/
husband/father) was of unsound mind, had been decided by the Trial Court in negative by
holding that said question / proposition could be confirmed by medical evidence, but at the same time petitioner No.2 (grand- father/defendant) was directed to pay the decretal amount
to respondents/plaintiffs (wife and daughter), meaning thereby the Trial Court in the light of case Jamila Begum v. Awam -un-Nass" PLD 1978 Lah. 1376 had impliedly held that the
petitioner No. 1 was of unsound mind; even otherwise in view of the dictum laid down in the case Sultan Ahmad v. Judge Family Court" PLD 2012 Lah. 148, the petitioner No. 2 (grand-father) was rightly directed to pay the decretal amount, being grandfather of minors ---No
illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below ---Constitutional petition, filed by the defendants (father and grand-
father), was disposed of.
Jamila Begum v. Awam -un-Nass PLD 1978 Lah. 1376 and Sultan Ahmad v. Judge
Family Court PLD 2012 Lah. 148 ref.
(c) Limitation Act (IX of 1908)---
----Art. 120---Family Courts Act (XXXV of 1964), S. 5, Sched.--- Suit for recovery of
maintenance allowance--- Limitation ---Scope ---Past maintenance allowance, entitlement to ---
Scope ---Trial Court decreed maintenance allowance to plaintiff (wife) for 17 years, which
decree was maintained by the Appellate Court ---Question was whether the past maintenance
allowance was decreed in accordance with law?---Held, that grant of past maintenance allowance, in the present case, was not in accordance with law as Art. 120 of the Limitation Act, 1908, was applicable to a suit for maintenance which stipulated 6 years ---Trial Court
could have decreed past maintenance for the period of six years but had wrongly awarded the maintenance beyond the period of 6 years which was not in accordance with law ---High
Court modified the impugned judgments and decrees to the extent of past maintenance holding that respondent (plaintiff/wife) was entitled for 6 years' past maintenance before filing of the suit--- Constitu -tional petition, filed by defendant/husband, was partly allowed.
Mst. Farah Naz v. Judge Family Court, Sahiwal PLD 2006 SC 457; Bushra Qasim v.
Abdul Rasheed 1993 CLC 2063; Shagufta Bibi v. Amanat Ali 2018 YLR 645 and Muhammad Sharif v. Additional District Judge 2007 SCMR 49 ref.
Abdul Latif for Petitioners.
Sarfraz Saleem for Respondent No.1.
Date of hearing: 5th October, 2022.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---Respondent No.1 had filed a suit for
dissolution of marriage on the basis of non- payment of maintenance before learned Civil
Judge, Pasni ("trial Court") alleging therein that she had married with petitioner No.1 twenty
seven years ago and out of wedlock, one son and three daughters were born. It was further alleged by respondent No.1 that at the time of Nikah, 100 Misqal Gold was fixed as dower amount (Haq Meher), out of which 15 Misqal Gold was paid by petitioner No.1 and 85 Misqal Gold is still outstanding against him. It was further alleged by respondent No.1 that the relationship between her and family members of petitioner No.1 became sore and strained, consequently she was forced to leave the house of petitioner No.1 and since then petitioner No.1, who is mentally handicapped, is not paying maintenance to her and to her daughter Gul Zaib, therefore she was compelled to file the suit.
2. The suit was contested by the petitioners on legal and factual grounds. Out of
pleadings of the parties, the trial Court framed the following issues:
A) Whether the plaintiff is entitled for the dissolution of marriage on grounds of the non-payment of maintenances allowance and the insanity of the defendant No. 1?
B) Whether the plaintiff is entitled for the relief claimed?
C) The relief?"
3. On conclusion of trial, vide judgment and decree dated 26.02.2021, the suit filed by
respondent No.1 was decreed in the following terms:
"---In view of the above discussions, this court is of the considered opinion that
plaintiff has proved her case of non - provision of maintenance by her husband for
more than two years, therefore the marriage subsisting b/w the plaintiff and defendant No.1 is hereby dissolved on the basis of non -provision of maintenance for a
continues period of two years, under the dissolution of Muslim Marriages Act, 1939, with the direction to defendant No. 1 through his attorney defendant No.2, to pay the outstanding eighty five (85) Misqal gold dower (per Misqal gold of Rs, 500/ -) total
forty two thousand five hundred (42500) to plaintiff and also to pay the previous and present maintenance of the plaintiff and her daughter Gul Zaib, till the decision in this suit, to the tune of five lac and ten Thousand Rupees (Rs.510000), at the rate of twenty five hundred rupees monthly (Rs2500). The plaintiff has not prayed for the past and present maintenance allowance in her prayer clause, but given the facts of the present case and the demands of justice and fairplay the court can grant the ancillary relief even if not prayed for and reliance in this regard is going to be placed on case of 1987 CLC 482 (Karachi).
----(a) Civil Procedure Code (V of 1908), S.34 & O. VII, R.7--- Interest on decretal
amount, grant of ---Jurisdiction of Court ---Court is empowered to award ancillary
relief even if same was not prayed for ---Court, held, was entitled, rather justified in
granting interest on decretal amount adjudged, in suit for payment of money, from date of filing of suit up- to-date of decree and future interest up to date when decretal
amount actually was paid, even if there was no specific prayer for grant of such interest.
Therefore, given the facts of the present case and the long duration of seventeen years of separation of plaintiff and her daughter from defendant No 1, the plaintiff along with her daughter Zargul are entitled for the unclaimed past and present maintenance, till the decision of this suit. No orders as to costs".
4. The petitioners, being aggrieved, preferred appeal before learned Additional District
Judge, Gwadar ("Appellate Court"), which was dismissed vide judgment and decree dated
26.11.2021. Both referred judgments and decrees are impugned before us.
5. Learned counsel for the petitioners contended that the trial Court has committed error
by decreeing past maintenance allowance of approximately seventeen years as the trial Court
could not have granted past maintenance allowance beyond the period of three years; that
even respondent No.1 had not prayed for the past maintenance allowance but the trial Court on its own granted the said relief which according to learned counsel was mis -exercise of
jurisdiction; that in view of contradictions between the statements of prosecution witnesses, the suit so filed by respondent No.1 deserved to be dismissed but the same was wrongly decreed and the Appellate Court also dismissed the appeal so filed by the petitioners without
appreciating the actual facts and circumstances of the case. Learned counsel relied upon the
cases titled as Muhammad Nawaz v. Khurshid Begum
1, Sardar Muhammad v. Mst. Nasima
Bibi2, Controlling Authority/Collector, Sialkot v. Chairman, Arbitration Council3, Syed
Muddassar Altaf v. The Deputy Commissioner/ Collector, Lahore4, Mst. Anar Mamana v.
Misal Gul5, Muhammad Alsam v. Mst. Zainab Bibi and others6 and Ghulam Habib v. Mst.
Zubaida Khatoon7.
6. While responding to the contentions of learned counsel for the petitioners, learned
counsel appearing on behalf of respondent No.1 submitted that respondent No.1 from last
seventeen years, was not paid any amount on account of maintenance; that the dower amount which was agreed, has also not been paid; that the trial Court had rightly passed the decree in
favour of respondent No. 1. Learned counsel relied upon the cases titled as Muhammad
Sharif v. Additional District Judge
8, Sakina Bibi v. Sessions Judge, Sargodha9, Sher Zaman v.
Mst. Mahzari10, Muhammad Yasir Nazeer v. Lubna Kosar11 and Sher Zaman v. Mst.
Mahzari12.
Arguments heard. Record perused.
7. The trial Court had decreed the suit filed by respondent No.1 by dissolving her
marriage on the ground of not providing maintenance allowance to respondent No.1 from last
so many years. From the rival claims of parties, following propositions have emerged:
i. Whether the Haq -Meher of respondent No.1 was fixed @ 100 Misqal gold and the
fora below have rightly decreed 85 Misqal gold @ fix rate of Rs.500/ - per Misqal?
ii. Whether petitioner No.1 is of unsound mind and fora below have rightly dissolved the marriage on the ground of non- maintenance?
iii. Whether the trial Court could have decreed past maintenance allowance of almost 17
years?
8. The perusal of record reveals that it is an admitted feature of the case that Haq -Meher
was fixed as 100 Misqal gold, as the witnesses of the petitioner before the trial Court have admitted this fact. Though the plea has been taken by the petitioner's side that 24 Misqal gold have been paid at the time of Nikkah, but the petitioner failed to prove this fact, therefore, the decree to the extent of 85 Misqal gold as Haq- Meher, has correctly been passed by the
fora below by appreciating the evidence produced by the parties.
9. Though the proposition whether petitioner No.1 was of unsound mind, had been
decided by the trial Court in negative by holding that this question could be confirmed by medical evidence, but at the same time petitioner No.2 was directed to pay the decretal
amount to respondent No.1, meaning thereby the trial Court in the light of case titled as Jamila Begum v. Awam -un-Nass
13 had impliedly held that the petitioner No.1 is of unsound
mind; even otherwise in view of the dictum laid down in the case titled as Sultan Ahmad v. Judge Family Court
14, the petitioner No.2 was rightly directed to pay the decretal amount,
being grandfather of minors.
10. The next proposition whether the past maintenance allowance was decreed in
accordance with law? The trial Court has decreed the past maintenance allowance @ Rs.2,500/ - per month and total amount which the trial Court has decreed on account of past
maintenance allowance is Rs.510,000/ -, so 17 years' maintenance allowance has been granted
by the trial Court to respondent No.1, which in our considered view is not in accordance with law as Article 120 of the Limitation Act, 1908 is applicable to the suit fo r maintenance which
stipulates 6 years. The trial Court could have decreed past maintenance for the period of six years but has wrongly awarded the maintenance beyond the period of 6 years which is not in accordance with law. Reliance in this regard is being placed upon the case titled as Mst. Farah
Naz v. Judge Family Court, Sahiwal15, Bushra Qasim v. Abdul Rasheed16 and Shagufta Bibi v.
Amanat Ali17.
This aspect of the matter was also considered by the Hon'ble Supreme Court of
Pakistan in the case titled as Muhammad Sharif v. Additional District Judge18, the relevant
excerpt is reproduced:
6. The aforesaid judgments along with section 278 of Muhammadan Law by D.F.
Mullah were considered in Syed Mudassar Altaf's case PLD 1993 Lah. 810 and laid
down a principle that wife was entitled to claim past maintenance for a period of 6 years in view of law laid down by this Court in Muhammad Nawaz's case PLD 1972 SC 302. The aforesaid proposition is supported by Muhammad Aslam's case 1990 CLC 934 and Muhammad Ibrahim's case 1991 CLC 1296. There is a contrary view in
the following judgments in which the Court has laid down a principle that wife is
entitled to past maintenance to the extent of three years:
(i) Abdul Latif's case 1985 CLC 1184; (ii) Controlling Authority/ Collector's case 1989
MLD 145; (iii) Ahmad Riaz's case 1994 CLC 2403".
In view of the above deliberations, the impugned judgments and decrees are modified
to the extent of past maintenance and it is held that respondent No.1 is entitled for 6 years'
past maintenance before filing of the suit. With this modification, the impugned judgments and decrees are upheld.
The petition is partly allowed.
MQ/39/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.