PLJ 2001 Lahore 830
Present: MRS. NASIRA javaid IQBAL, J. MUHAMMAD TAUQEER-Petitiorier
versus ADJ etc.-Respondente
W.P. No. 8268/2001, decided on 30.5.2001. Family Matters-
—When there are two waves each one is entitled to separate accommodation and cannot be compelled to live with other– . [P. 832] C
Maintenance–
—Wife’s refusal to stay with parents of husband-Maintenance-Question of-It is petitioner who is husband of respondent (wife) and if he arranges for her to live with him and she refuses to do so she would be considered disobedient wife and would be disentitled to maintenance allowance-She is not under obligation to remain with parents of petitioner-She has throughout proceedings shown his willingness to live with petitioner and to perform conjugal duties if he provides her proper arrangements and accommodation-Held: A wife cannot be considered disobedient merely on the ground that she does not reside with parents of her husband in Pakistan after he sends her back from a foreign country where he is gainfully employed-Heldfurther: Keeping in view the circumstances of
the case wife is entitled to maintenance- [P. 832] A, B & D
PLD 1987 Lah. 208; 1986 SCMR 1466; 1986 SCMR 1967; 1978 SCMR 130 and 1988 CLC 1560 ref.
Mr. Pervaiz Inayat Malik, Advocate for Petitioner. Ch. Muhammad Saleem, Advocate alongwith Mr. Tanvir Akbar, Advocate for Respondents Nos. 3 to 5 with Respondent No. 3. Date of hearing: 30.5.2001.
order
Rs. 45,000/- has been deposited by the petitioner In compliance of this Court’s order dated 17.5,2001 which has been withdrawn by Respondent No. 3. This petition is admitted to regular hearing. The learned counsel for Respondents Nos. 3 to 5 accepts notice.
2. The petitioner assails the judgment and decree dated 30.4.2001 passed by Respondent No. 1 wherein he has upheld the judgment and decree dated 31.5.2000 passed by Respondent No. 2 the learned Judge Family Court, Lahore awarding maintenance of Rs. 9,000/- per month in favourof Respondents Nos. 3 to 5 Mst. Nasreen wife of the petitioner and her two minor children Fasih Tauqeer and Fiza Tauqeer w.e.f, 8.12.1995 onward.
2-A. The learned counsel for the petitioner has argued that both the learned Courts below erred in holding that the petitioner can pay Rs. 9000/-since he is a civil endavour employed in Saudi Arabia. In fact the petitioner is a civil inspector and his employed off and on contractual basis and earns about Rs. 15,000/~ plus over-time when he is in employment. Therefore, the amount of Rs. 9000/- is beyond his means particularly when he has old parents and record wife with two children to support. The second marriage having taken placed with the permission of Respondent No. 3. Further argued that Respondent No. 3 is not entitled to any maintenance since she did not stay with the petitioner of her own accord and is disobedient so not entitled to any maintenance under the law. He has placed reliance on Ahmed All vs. Sabha Khatun Bibi etc. (PLD 1952, Dacca 385). The learned counsel has pointed out that there is no concurrent finding of fact regarding income of the petitioner since admitted amount is Rs. 15,000/- as salary and Respondent No. 1 has wrongly inferred that his income is more than that. Respondent No. 3 is working as school teacher in Lahore and having her own income is not entitled to any maintenance on this account.
3. The learned counsel for Respondents Nos. 3 to 5 has vehemently opposed the contentions of the learned counsel for the petitioner. He has insisted that mark ‘C’ which is a computer slip regarding salary of the petitioner was placed on the record according to which salary of the petitioner is 3675 Saudi Rial which amount approximately comes to Rs. 35,000/-. Further argued that Respondent No. 3 has not deserted deserted the petitioner of her own accord, rather she lived with im in Saudia Arabia as long as she had Visa and thereafter she returned to Pakistan and she is living in Lahore since she has a job in Lahore. It is further argued that there is no law that if the petitioner’s husband does not keep his wife with him where he is living she should be compelled to live with his parents and has further argued that it was father of the petitioner who insisted on Respondent No. 3 that she could not live with them after she had returned from Saudi Arabia and she was constrained to eturn to Lahore where she works and resides with her own parents. The learned counsel for the respondents has relied on Naik Muhammad vs. Bagh Ali (PLD 1987, Lahore, 208), Mst. Sharifan Bibi and another vs. Ghulam Hussain and others (1986 SCMR 1466), M. Sabbar Idress and others vs. Clare Benedictd Conville (1986 SCMR 1967), Muhammad Sadiq Hussain vs.
Mst. Khurshid Fatima and another (1978 SCMR 130) and Abdul Latif vs. Surat Khatoon etc. (1988 CLC 1560) that concurrent inding of fact cannot be assailed in writ jurisdiction. In rebuttal the learned counsel for the petitioner has pointed out that nowhere in the plaint or in the proceedings before the Courts below Respondent No. 3 ever took this stand that she was compelled to leave the house of the parents of the petitioner on their insistence.
4. I have heard learned counsel for the parties and have also gone through the record with their able assistance.
5. The main controversy is regarding the salary of the petitioner. According to the petitioner his salary was Rs. 15,000/-, but the salary was Rs. 35,000/- approximately as asserted by Respondent No. 3. The petitioner appears to be a contractor working in Saudi Arabia and when one contract is oncluded he return to Pakistan and shortly thereafter he again goes to Saudi Arabia. Therefore, whatever is the amount of his income would be normally considered as continuing income even though he asserts that he is currently jobless. From the record I find that the petitioner in an application dated 9.3.1999 under Order 47, Rule 1 CPC read with Section 151, CPC has sought review of the order for interim maintenance in the amount of Rs. 3,000/- per month. In the grounds of this application the petitioner has himself admitted the computer slip disclosing his salary as 3675 Saudi Rial per month while asserting that the learned Court did not take into account deduction of 601 Saudi Rial from this salary. The conclusion of both the Courts below that the petitioner can afford to pay Rs. 9,000/- per month to the three respondents to by no means excessive.
7. As to the second question regarding disentitiement of Respondent No. 3 on account of her refusal to stay with the parents of the petitioner, it is the petitioner who is the husband of Respondent No. 3 and if he arranges for her to live with him and she refuses to do so she would be considered disobedient wife and thus disentitled to the maintenance allowance. From the record 1 find that it has not been denied that Respondent No. 3 remained with the petitioner as long as her Visa allowed. Thereafter she returned to Pakistan. Regarding controversy of whether parents of the petitioner refused to keep her or she left the house of her own accord, suffice it to say that she is not under obligation to remain with the parents of the petitioner. She has roughout the proceedings to even today she submitted that she is willing to live with the petitioner and perform conjugal duties if he provides her proper arrangements and accommodation.
8. As for the contention of the learned counsel for the petitioner that her condition of having separate house is unreasonable. It has been consistently held by the Courts that when there are two wives each is entitled to separate accommodation and cannot, be compelled to live with the other. Therefore, her demand does not appear to be unreasonable in this behalf. If the petitioner arranges separate accommodation for Respondent No. 3 wherever he works and resides Respondent No. 3 is bound to stay with him and if she refuses to do so she would be doing so unreasonably.
9. The judgment cited by the learned counsel for the petitioner is of no help to him. It has been held in the judgment cited above that disobedient wife is not entitled to maintenance. However, the learned counsel for the petitioner has not been able to produce any judgment in which it has been held that a wife who does not live with the parents of her husband when the husband does not keep her with him is not entitled to maintenance. A wife cannot be considered disobedient merely on the ground that she does not resile with the parents of her husband in Pakistan after he sends her back from a foreign country wjiere he is gainfully employed.
10. In view of the above discussion I find no merit in this petition. The impugned judgment and decree are upheld. The petition is dismissed without any order as to costs.
(A.P.) Petition dismissed.