Judgment Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. S – 1265 of 2012

Petitioner : Zeenat Nawaz through

Mr. Muhammad Aziz Khan Advocate.

Respondent No.2 : Muhammad Aziz Khan called absent.

Date of hearing : 11.09.2018

J U D G M E N T

NADEEM AKHTAR, J. – Family Suit No.184/2010 was filed by the petitioner against respondent No.2 for recovery of dower amount and maintenance which was partly decreed by learned Family Judge Karachi South vide judgment and decree dated 31.05.2011, by allowing dower amount of Rs.150,000.00 and maintenance at the rate of Rs.2,000.00 per month with an increase of 10% per annum from the date of institution of the Suit till the subsistence of the marriage. Since the petitioner’s claim of markup on the dower amount, maintenance at the rate of Rs.20,000.00 per month from August 2005 as well as future maintenance with 25% increase along with markup and an additional amount of Rs.3,000.00 per month from the date of marriage till July 2005 with markup at the rate of 25%, was not allowed, she preferred Family Appeal No.64/2011, which was dismissed by the learned VI^th Additional District Judge Karachi South through impugned judgment dated 03.10.2012. Being aggrieved with the rejection of her above claim by both the learned courts below, she has filed the present petition.

2. Relevant facts of the case, as averred by the petitioner in her plaint, are that she was married to respondent No.2 on 16.07.2000 in consideration of dower amount of Rs.150,000.00 which was not paid to her ; respondent No.2 was working in Saudi Arabia at the time of marriage ; the parties lived together for only two months after marriage, whereafter respondent No.2 went back to Saudi Arabia and did not keep any contact with her for four years nor did he pay / send any amount to her towards her maintenance ; respondent No.2 came back after four years and demanded Rs.100,000.00 from her as she was serving as a teacher at that time ; the said amount was arranged by her after taking loan ; respondent No.2 kept on demanding further amounts from her and when she refused to accede to his demands, he abandoned her and went to his native village in Azad Kashmir in May 2005 ; the petitioner and her mother went to his village in July 2005, but he refused to see them and threatened them of dire consequences ; as per the terms and conditions of Nikahnama, respondent No.2 was bound to pay Rs.3,000.00 per month to her as pocket money ; and, petitioner was living with her parents since August 2005, but respondent No.2 failed to provide any maintenance to her although he was earning a handsome amount from his business of sale and purchase of animals.

3. In this background, the above Suit was filed by the petitioner with the following prayer :

“The plaintiff therefore prays for judgment and decree as under :-

(a) Money decree recovery of dower amount of Rs.1,50,000/= with 25% mark-up P.A. from the date of filing the suit till the amount is release (!).

(b) Money decree for recovery Rs.3000/= p.m. from the date of marriage till July 2005 with mark-up at the rate of Rs.25% P.A. from the date of suit till the amount is release (!).

(c) Money decree on account of maintenance at the rate of Rs.20,000/= per month from August 2005 up-to-date and future maintenance with increased (!) 25% per annum from the date of filing of the suit till the plaintiff remains in Nikah of defendant, with mark-up at the bank rate or at the rate of Rs.25% (!) per annum for the date of institution of the suit till the amount is released.

(d) Costs of the suit be provided for.

(e) Such further and other relief or relieves which this Hon’ble Court may deem fit and proper under the circumstances of the case may also be grant in favour of plaintiff.”

4. Since respondent No.2 / defendant could not be served in the Suit through ordinary modes of service, summons were published in newspapers whereafter service upon him was held good. However, he did not appear nor did he file written statement, and accordingly he was declared ex-parte. The petitioner / plaintiff filed her affidavit in ex-parte proof and she also came into the witness box. It was specifically observed in the impugned judgment by the learned trial Court that the claim of the petitioner had gone unchallenged and un-rebutted, hence there was no other option but to believe the same. Despite such observation, the claim of maintenance made by the petitioner at the rate of Rs.20,000.00 per month from August 2005 and future maintenance with 25% increase and markup was not accepted / allowed and instead maintenance was allowed at the rate of only Rs.2,000.00 per month from the date of institution of the Suit with 10% increase ; and, her claim of Rs.3,000.00 per month from the date of marriage till July 2005 with markup in view of a specific clause to this effect in the Nikahnama was also declined. It may be noted that respondent No.2 also did not contest the appeal filed by the petitioner and remained absent therein despite service by way of publication.

5. It was contented by learned counsel for the petitioner that she had successfully proven her claim before the trial court which was liable to be accepted as it had remained unchallenged. In support of this contention, he relied upon cases decided by Division Benches of this Court and learned Lahore High Court viz. Anwar Ali and 9 others V/S Chief Engineer, Irrigation, Sukkur Zone, Sukkur and 2 others, 1986 CLC 745, Muhammad Farooq M. Memon Advocate V/S Government of Sind through its Chief Secretary Karachi, 1986 CLC 1408 and Civil Aviation Authority V/S Messrs Providence Aviation (Pvt) Ltd., 2000 CLC 1722. He further contended that no cogent reason was given by the learned courts below for declining the petitioner’s claim or for granting maintenance to her at a meagre rate of Rs.2,000.00 per month as against her claim of Rs.20,000.00. He submitted that her claim was not only just and legal, but was also reasonable by all standards. He referred to Mst. Iqra V/S Abuzar, PLJ 2012 SC (AJ&K) 169, Mst. Mussarat and 2 others V/S Muhammad Naeem and another, PLD 2010 Karachi 10 and Saima Khan V/S Khan Arshad Anwar alias Babar and another, 1998 CLC 942 in support of his above submission.

6. Perusal of the evidence produced by the petitioner before the trial court shows that she had reiterated her entire claim in her affidavit in ex-parte proof which was produced by her, and she also produced her Nikahnama, an agreement of tenancy dated 15.06.2000, letter dated 12.12.2009 from her employer-bank confirming that she had obtained a loan and had settled the same, bank statement of her personal bank account and an Iqrarnama dated 10.07.2000 executed by respondent No.2. Under clause 15 of the Nikahnama, it was agreed by the parties that respondent No.2 will pay Rs.3,000.00 per month as expenses to the petitioner in case their relations become sour. The agreement of tenancy produced by her to show that she was paying the rent stipulated therein from her own resources, was inadmissible in evidence as it was an unsigned document. However, the letter from her employer-bank and her bank statement did support her statement that she had taken a loan from the bank ; and, the Iqrarnama executed by respondent No.2 also supported her statement in relation to the contents thereof. It may be noted that the above documents produced by the petitioner were not mentioned or discussed in the impugned judgment and decree ; and, despite observing in the impugned judgment that the claim of the petitioner had gone unchallenged and un-rebutted hence there was no other option but to believe the same, her claim to the above extent was declined without assigning any cogent reason.

7. In my humble opinion, the petitioner was not entitled to both monthly expenses and monthly maintenance at the same time, and only maintenance could be granted to her. Thus, while granting monthly maintenance to her, monthly expenses of Rs.3,000.00 were rightly declined by the learned Courts below. Regarding maintenance, it is well-settled that when a woman surrenders herself into the custody of her husband, it is incumbent upon him to support her with food, clothing and lodging whether she is a Muslim or not ; according to Islamic injunctions, it is the obligation of the husband to maintain his wife till she disobeys him without any good cause and that being so, a husband is obliged to pay even the arrears of maintenance if not paid by him during the subsistence of the marriage ; maintenance, the definition whereof in Islam is ‘Nafqa’, to the wife is not an ex-gratia grant, but husband is obliged to maintain her ; the obligation of husband to maintain his wife has been derived from Verse No.232 of Surah Al-Baqara ; in all circumstances, maintenance is to be considered as a debt upon the husband in conformity with tenet ; and, the wife is entitled to claim maintenance from the date of accrual of cause of action and not necessarily from the date of first seeking redress. The views expressed above are fortified by Mst. Iqra V/S Abuzar, PLJ 2012 SC (AJ&K) 169.

8. In view of Mst. Iqra supra, I am of the view that the quantum of monthly maintenance and its effective date decided by learned trial court and upheld by learned appellate court were not justified in the facts and circumstances of the case, especially when the claim and evidence of the petitioner had throughout remained unchallenged and un-rebutted and as such ought to have been accepted in view of Anwar Ali, Muhammad Farooq M. Memon Advocate, and Civil Aviation Authority supra. Grant of Rs.2,000.00 per month as maintenance for an adult in the year 2011 when the Suit was partly decreed appears to be unjustified, and grant of the said amount from the date of institution of the Suit was also not proper. Once the learned trial court had come to the conclusion that the petitioner was entitled to maintenance, then a reasonable amount ought to have been granted to her keeping in view the average / standard cost of living, and such amount ought to have been granted with effect from the date of accrual of cause of action along with all arrears thereof and profit thereon ought to have been allowed keeping in view the period of limitation.

9. In view of the above discussion, the impugned judgment and decree passed in Family Suit No.184/2010 (Mst. Zeenat Nawaz V/S Muhammad Aziz Khan) are hereby modified by granting maintenance to the petitioner / plaintiff at the rate of Rs.5,000.00 (Rupees five thousand only) per month from the year 2007 as long as the marriage between the parties subsists, with 10% increase therein per annum, as well as profit on the entire unpaid / outstanding amount, including unpaid dower amount of Rs.150,000.00 already decreed, at the rate of 12.5% per annum. The petitioner will also be entitled to costs throughout.

J U D G E

*CP S-1265-12/Judgments Single/Court Work/E*