JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, MINGORA BENCH (DAR-UL-QAZA), SWAT (Judicial Department) W.P No. 474-M/2019 (Sher Ali__C¥amus_Mst. Hafsa and others, MS. rhaffar and Haider Ali Khan, Ac rr Petitioners. Mr, | Ali, Advocate indent No.1. Date of hearing: 17.10.2022 JUDGMENT MUHAMMAD NAEEM ANWAR, J.- Sher Ali, the petitioner, through this petition filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 has challenged the validity and correctness of the judgment and decree of the learned District Judge/ Zila Qazi, Buner at Daggar dated 25.02.2019, whereby his appeal against judgment and decree of the learned Civil Judge-IV/Judge Family Court, Buner at Daggar dated 24.09.2018 partially decreeing suit of the respondenv plaintiff, was dismissed. 2 Arguments heard and record perused. 2 It is reflected from record that respondent No.1 namely Mst. Hafsa has filed a suit for dissolution of her marriage on the ground of cruelty or in alternate on the basis of khula. She has also sought recovery of 15 ola gold as her dower alongwith maintenance/ medical allowance @ Rs.10,000/- per month for last 12 years and onward till saozaus ($B) HON'BLE MR, JUSTICE MUHAMMAD NAEEM ANWAR,decision/expiry of her iddat period. It is averred in plaint that her nikah with petitioner was solemnized in lieu of dower of 15 fola gold omaments but after solemnization of nikah, neither the petitioner/ defendant endeavored for her rukhsati nor the dower or maintenance allowance was paid to her such an attitude of the petitioner/defendant is amounting to a cruelty on part of his part, thus, she is entitled for decree of dissolution of marriage on the ground of cruelty alongwith maintenance allowance. Suit was resisted by the petitioner/ defendant though his written statement on different legal and factual objections, by contending therein that dower was fixed as 03 rola gold and that when the consummation has not taken place, neither the plaintiff/ respondent is not entitled for decree of maintenance allowance nor dissolution of marriage on the ground of cruelty, however, if she does not want to live with petitioner, marriage can be dissolved but on the basis of khula. Parties were provided opportunity for producing their evidence. After hearing the parties, on 24.09.2018 the learned trial Court granted decree in favour of respondent/ wife for dissolution of marriage on the ground of cruelty; recovery of 3 % gold as half of the total dower seven tola gold by holding that when the rukhsati bas not taken place, wife could not be held entitled for whole dower. She was also held entitled for maintenance allowance @ Rs.3,000/- per month from March sagzatr (8.8) HON'BLE MR. JUSTICE MUHAMMAD NABEM ANWAR,2010 till date of pronouncement of judgment. The appeal of petitioner against the judgment & decree of the leamed trial was maintained by the learned Appellate Court through its judgment and decree dated 24.09.2018. 4, There are three questions requiring deliberation and determination for resolution of the contest between the parties ie., (1) what was the quantum of dower, any part of it paid and if not, for how much dower the respondent/ plaintiff could be held entitied; (2) whether subsistence of nikah for more than 10 years without consummation could justify her dissolution of marriage on the ground of cruelty; and (3) for how much period past maintenance could be awarded in favour of the respondent/wife? 5. The first question as alleged by the respondent! plaintiff that dower was fixed as 15 ftola gold was controverted by the petitioner by contending that it was fixed as 03 tola, thus, the quantum of dower was disputed by both the parties. Wherefrom the learned trial Court has reached to the conclusion that dower was fixed as 07 tola gold, record reflects that in pretrial reconciliation proceedings when an effort was made by the Presiding Officer of trial Court, allegedly the petitioner has admitted the fixation of dower as 07 tola gold, however, the statement (s) recorded in pre and post-trial reconciliation proceedings, could not be made basis sazatie (6B) HON'SLE AM JUSTICE MUHAMMAD NAEEM ANWARfor resolution of the controversy between the parties for the reason that ordinarily pre & post trial reconciliation proceedings are not attended by the counsel for respective parties and none of the party is cross examined to adjudge the evidentiary value of any such admission or otherwise. Apart from the above, the petitioner has put a suggestion to the plaintiff’ respondent in cross examination that: Bin Per Lie yo Sesly Likewise, Saif-ur-Rahman (PW-2) was also cross examined by the petitioner. In his cross examination, it was brought on record that BP LIS tf? aS qty Hence, when the petitioner himself suggested to the respondent and her witness that dower was fixed as seven tola gold, he cannot be allowed to deviate from his own suggestion regarding the quantum of dower. Since the cross examination is a double-edged weapon, purpose of which is to bring on record the truth from the facts and circumstances and during the cross examining the plaintiff, the petitioner has himself admitted the fixation of dower as seven tola gold which leaves no room for the petitioner to controvert his stance as it is now an estoppel against him, which precludes him from denying the truth of statement made by him and the srszaur (S18) HONSBLE-MR. JUSTICE MUMIAMMAD NAEEM ANWAR,petitioner could not be allowed to blow hot and cold in the same breath. 6. Secondly, when rukhsati has not taken place and the quantum of dower was seven tola gold, which is still unpaid in such an eventuality, in consonance with the injunctions of Islam, wife could be held entitled for half of the dower. In Majmua Quawaneen-e-Islam volume 1*, authored by Dr. Tanzeel-ur-Rehman, former Judge Sindh High Court pertaining to entitlement of dower when Rukhsati has not taken place has commented: - This Court in case titled “Sved Arshad Ali Shah Vs, Mst Haleema Bibi and 2 others” (PLD 2014 Peshawar 226) has observed that when Rukhsati between the parties has not taken place, wife is entitled for half of the dower as fixed between the parties. In the case of “Wilayat Hussan_and another's case (2017 YLR Note 218), it was held that when the marriage was not consummated, wife is entitled for only half of the dower. Reliance can also be placed on case title “Fida Hussain Vs. Judge Family Court, Muzaffargarh and 2 others” (2018 YLR 616). Hon'ble Supreme Court in case titled “Muhammad Akbar Vs. Shazia Bibi and others” (PLI 2014 SC 772) laid this controversy to rest once for all when it was held that: - saazaue (8) MON'BLE.MR. JUSTICE MUHAMMAD NAEEM ANWAR,“9, In this regard we are guided by Verse No. 237 of Sura Al-Baqra from the Holy Quran which, for ease of reference, is reproduced as under: - “And if you divorce them before you have touched them, and you have already settled a dowry on them, then (pay them) one-half of what you have settled, unless they (women) remit it, or he remits it in whose hand is the marriage tie; and that you (yourselves voluntarily) remit (the whole) is nearer to piety. And, do not forget generosity among yourselves. Surely Allah sees what you do." Somewhat similar controversy as regards quantum of payable dower in case where the marriage between spouses ‘was not consummated was examined in the case of Ali Ahmad versus Mst. Gulshan & another (1998 SCMR 2347) and leave was refused with the observation that where the ‘marriage has not been consummated the wife will be entitled to half of the land given to her by her husband in lieu of her dower. Thus, according to Islamic law it is well settled principle that where the marriage has not been consummated, the wife is entitled to only half of the fixed dower and, the remaining half is to be retumed/restored to the husband, unless such right is waived by him voluntarily.” Thus, both the leamed Court below. have rightly held entitled the respondent/ wife for half of the dower i.e., 3 ¥% tola gold omaments. It was not disputed that nikah was solemnized some 10 to 12 years ago and tll filing of suit Rukhsati has not taken place. Record is silent for any effort on the part of petitioner for rukhsati. Admittedly, the respondent remined in the nikah of petitioner who could not enter into second nikah during, subsistence of her nikeh with petitioner ‘and in such circumstances the petitioner was duty bound to maintain her by paying the maintenance allowance but no maintenance allowance for the whole period of nikab till filing of suit was ever paid by the petitioner. Non-payment of maintenance srocns (I) HON'ELE MR JUSTICE MUAMMAD NAEEM ANWARallowance to the wife for two consecutive years is also a ground for dissolution of marriage but the conduct of the petitioner for having the petitioner in his nikah without Rukhsati for 12 good years of her life amount to cruelty on the petitioner’s part entitled her dissolution of marriage on ‘one hand and for maintenance allowance on the other. It is by now settled that the cruelty may not be limited to physical torture only but the conduct, behavior etc. of the husband are also the factors for determination of cruelty on part of the husband towards wife in a matrimonial life. 8. The last question is the period for past maintenance allowance in favour of wife/plaintiff, learned counsel for respondent’ plaintiff has made reliance on the judgment of this Court in the case of “Sher Zaman Vs. Mst. Mehzari and 92 others” (2018 YLR 128, Peshawar) where a wife was held entitled for recovery of past maintenance allowance for 30 years, however, the Hon’ble Supreme Court has put this controversy to rest that for how much period past maintenance allowance could be awarded. It was for the first time that in the case of “Muhammad Nawaz Vs. Mst. Khurshid Begum and 03 others” (PLD 1972 SC 302), the apex Court has held that in a suit for recovery of past maintenance allowance, the provision of Article 120 of the Limitation Act, 1908 would apply. This view was followed snazatle (6B) HON'SLE.R, JUSTICE MUHAMMAD NAEEM ANWAR,by learned Lahore High Court in the case of “Ghulam Habib Vs. Mst, Zubaida Khatoon” (1992 CLC 1926). Thereafter, in the case of “Mst. Bushra Qasim Vs. Abdur Rashid” (1993 CLC 2063), the leamed Lahore High Court has held that respondent/ petitioner is entitled for past maintenance for a period of six years. Similarly, this Court in the case of “Anar Mamana Vs. Misal Gul’ (PLD 2005 Peshawar 194) has held that there is no specific provision of law providing period of limitation for past maintenance by Muslim Family Laws Ordinance 1961 (VIII of 1961) and the issue would be governed by Article 120 of Limitation Act, under which, the period of limitation is six years from the date when cause of action accrued. More-so, this Court in case of “Farkhanda Mumtaz Vs. Muhammad Sharif’ (PLD 2006 Peshawar 96) has made reliance on the earlier judgment and decided that Article 120 of the Limitation Act, 1908 would be applicable in the case of past ‘naintenance, Hon'ble Supreme Court in the case of “Mst. Farah Naz Vs. Judge Family Court, Sahiwal” (PLD 2006 SC 457) has observed that claim of past maintenance would be govemed by Article 120 of the Limitation Act, which prescribed a period of six years, for which, no period was provided elsewhere in the Act, from the date when the right to sue has accrued. Reliance may also be placed on the cases of “Rashid Ahmad Vs. Mst. Shamshad srazaue ($1) HON'BLE MI, JUSTICE MUHAMMAD NAEEM ANWARBegum” (2007 CLC 656), “Mst. Zaiboon Vs. Mehraban” (PLD 2004 SC AJK 25) and “Rashid Ahmad Vs. Additional District Judge Layah” (2011 MLD 1012) and judgment dated 24.01.2022 rendered by this Court in the case of “Shafgat Ullah _Vs._Arjuman” (W.P No.1251-B/2020). Therefore, while making reliance upon the dicta (supra) laid down by the apex Court, it is held that the plaintiff is entitled for maintenance allowance for last six years from the institution of suit at the rate of Rs.3,000/- a5 held by the learned trial Court. 9. Thus, for the reasons discussed above, this petition stands dismissed but with the modification for the period of maintenance allowance. No order as to costs. Announced. d+ suze 8B) a IMA. oY ae yo ye