ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
C.P.No.S- 324 of 2012
DATE ORDER WITH SIGNATURE OF JUDGE
Date of hearing: 05.09.2013.
Date of order: .09.2013.
Mr. Fayaz Hussain Sabki, Advocate for petitioner.
Haji Ghulam Muhammad Memon, Advocate for respondent No.1.
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This petition is arising out of the judgment passed in Family Appeal No.12/2010, in terms whereof the judgment and decree passed in Family Suit No.10/2008 were maintained.
2. Brief facts of the case are that a Family Suit for recovery of dower, maintenance, delivery expenses and dowry articles was filed and accordingly the following six issues including the additional issues were framed:-
“1. Whether plaintiff was given dowry articles by her parents at the time of Nikah as per list and she is entitled for its recovery?
2. Whether the plaintiff and her minor son Abdul Khalique are entitled to receive past and future maintenance from defendant, if yes, at what rate and period?
3. Whether plaintiff is entitled to receive delivery expenses paid her parents from defendant?
4. Whether the plaintiff is entitled for relief as claimed?
5. What should the decree be?
Additional Issue:-
6. Whether defendant has paid dower amount to the plaintiff?”
3. The findings on Issue No.1 were in negative which were not challenged by the respondent in any forum. The findings on Issue No.2 were in affirmative that the respondent No.1 and minor son Abdul Khalique are entitled to receive the past and future maintenance. Issue No.3 is also decided in negative and respondent No.1 did not prefer any appeal. Issue No.6 regarding the dower amount was also decided in negative meaning thereby that dower amount was not paid by the petitioner and the respondent No.1 was entitled for dower amount and accordingly issues No.4 and 5 were decided on the basis of findings on the other issues. The appellate Court decided the controversy in the same manner as it stood decided by the Family Court.
4. Learned counsel for the petitioner though never objected to the quantum of amount of maintenance and dower as decreed by the trial Court but submitted that dower amount already stood paid in terms of 05 Tola gold which was paid on the wedding night and that respondent No.1 was not entitled to claim the maintenance as she admittedly refused to live with the petitioner.
5. On the other hand, learned counsel for respondent No.1 supported the findings of the trial Court as well as appellate Court and submitted that 04 Tola of gold was not dower amount and in fact it was the gift and not the dower amount.
6. I have heard the learned counsel and perused the record.
7. The two questions are involved in this case i.e. payment of dower amount and maintenance. As far as the dower amount is concerned, the claim could be set off against the gold set which was given to the respondent No.1 which she received at the time of Nikah thus from the evidence it cannot be ascertained that it is the case of misreading and non-reading of evidence and the dower amount stood paid. As far as payment of maintenance to the respondent No.1 is concerned, in the cross examination defendant No.1 has categorically admitted that she is not ready to join the plaintiff as his wife. This admission in cross examination would certainly disentitle her to claim the maintenance. She certainly can seek annulment of marriage in case she does not want to live with the petitioner but she certainly cannot enjoy the maintenance without performing her matrimonial obligation. I, therefore, decide the issue of maintenance of respondent No.1 against the respondent No.1 and declare that on account of her refusal to live with the petitioner, she is not entitled to claim the maintenance. The impugned judgment and decree are modified to the above extent.
8. The petition stands disposed of.
JUDGE
Tufail