2019 PLP 2298 (YLR)

RAJA SAEED AKRAM KHAN, J.

The validity of the judgment passed by the Shariat Appellate Bench of the High Court, on 26.9.2017, whereby Civil Appeal No.50/2015, filed by the appellant, herein, was dismissed, has been called in question, by the appellant, through this appeal, by leave.

2. The gist of the facts forming background of the case are that the plaintiff-respondent No.1, herein, filed four suits against the defendant-appellant, herein; one for dissolution of the marriage, second for recovery of dower, third for recovery of dowry article and fourth for recovery of maintenance allowance, in the court of Judge Family Court, Paniola/Datoot. The appellant also filed cross suit for restitution of conjugal rights. The suits were contested by filing of the written statements. The learned trial Court, after conducting the pre-trial proceedings, consolidated all the suits and in the light of the pleadings of the parties, framed the issues on 24.5.2014. After recording the evidence and hearing the parties, the learned trial Court, vide judgment and decree dated 30.11.21015, decreed the suits filed by respondent No.1, herein, for dissolution of marriage as well as recovery of the dowry articles, and the suit for recovery of maintenance allowance was also decreed for Rs.3000/- per month as the past maintenance allowance from the date of institution of the suit i.e. 1.11.7013 to 30.11.2015, along with maintenance allowance for her iddat period to the tune of Rs.5000/- per month, however, the suit for recovery of the dower was dismissed. The trial Court dismissed the counter suit filed by the appellant for restitution of conjugal rights. Feeling dissatisfied, the appellant herein, filed an appeal before the High Court. The learned High Court vide impugned judgment and decree dated 26.09.2017, dismissed the appeal, hence, this appeal by leave.

3. Syed Sayyad Hussain Gardezi, advocate, counsel for the appellant, submitted that the judgment and decree passed by the Courts below is against law and the facts of the case, as both the Courts below have failed to appreciate the evidence in a legal manner. He forcefully argued that the judgment and decree passed by the trial court is based on misreading non-reading of the evidence and the learned High Court also committed the same illegality while affirming the findings recorded by the trial Court. He submitted that the marriage was dissolved by the trial Court on the ground of Khulla, without determining the consideration of Khulla and such decree of dissolution of marriage is nullity in the eye of law. He added that this point was agitated by the High Court but the same was not attended to and resolved legally. While referring to the portions of the statements of the witnesses, the learned counsel submitted that both the Courts below have not taken into account that respondent No.1, who left the house of the husband with her sweet will was not entitled to get any maintenance allowance but this important legal aspect of the case escaped from the notice of they Courts below. The learned counsel submitted that the element of torture was not proved by the respondent, thus, the decree for dissolution of marriage on the ground of Khulla is not maintainable. He added that the respondent was not willing to populate with the appellant and left the house of the husband with her sweet will. The learned counsel referred to and relied upon the cases reported as Mst. Amreen v. Muhammad Kabir 2015 YLR 170 and Mst. Fozia Raheem v. Waseem Ahmed Rathore [2016 SCR 1213],

4. Conversely, Raja Muhammad Kabir Kiani advocate, counsel for the respondents, strongly supported the judgment and decree passed by the Courts below, while submitting that the same is perfectly legal, which is not open for interference by this Court. He submitted that there are concurrent findings, recorded by the courts below, which cannot be disturbed as the counsel for the petitioner failed to point out any misreading or non-reading of the evidence. He submitted that no such element of misreading or non-reading of evidence is involved, as both the Courts below have rightly appreciated the evidence brought on the record while recording the findings. The learned counsel strongly submitted, on the strength of the statements of the witnesses produced by the respondent, in support of her claim, that the statements of all the witnesses were in consistence and it was successfully proved that due to the severe physical and mental torture, the respondent was forced to leave the house of her husband. He added that the argument of the counsel for the appellant is not supported by the record that the marriage was dissolved on the ground of Khulla whereas the same was dissolved on the ground of cruelty.

5. We have heard the learned counsel for the parties and gone through the impugned judgment along with the record made available.

6. The first limb of arguments, which was forcefully argued in support of the appeal, is that without determining the consideration of khulla, decree for dissolution of marriage on the ground of khulla cannot be passed. To appreciate the argument, we have given our serious thought. From the record, it appears that the argument addressed by the counsel for the appellant is based on misconception as the decree was not passed on the ground of Khulla, rather the same has been passed on the around of cruelty. In this regard, the appellant has referred to the findings of the trial Court on issue No.l. The relevant observations read as under:- After going through the above-reproduced findings, upon which the counsel for the appellant heavily relies, nothing is spelt out that the decree has been passed on the ground of khulla, as the appellant claims, however, it appears from the findings recorded on issue No.1 that at every cost the respondent was not willing to populate with the appellant. It will be useful to reproduce the relevant findings, which are as under:- A perusal of the above reveals that although the respondent, in her statement, prayed for a decree of dissolution of marriage on the ground of Khulla, however, in her suit, she has prayed for the decree on the ground of cruelty. The trial Court, after going through the averments of the suit and the statements of witnesses, has passed the decree of dissolution of marriage on the ground of cruelty and not on the around of khulla. If the decree was passed on the ground of khulla, then it should have been passed after determining the consideration. The argument of the counsel for the appellant therefore, based on misconception and the same is repelled.

7. While attending to the other argument regarding the element of the torture, that the respondent failed to prove any sort of mental or physical torture, to attend this argument, we have examined the statements of the witnesses produced by the respondent to prove her version. In this regard, statement of Muhammad Yousaf, witness, recorded on 31.5.2014, is as under:- The relevant portion of the statement of Zohaib, witness, is also as under:

Raja Neamtullah, witness, deposed as under:-- All the witnesses are unanimous in their statement to prove the element of cruelty.

8. The respondent, herself, while appearing as witness, stated as under:-- Thus, the argument of the counsel for the appellant that the element of torture could not be proved, is ill-founded. It may be observed here that the cruel attitude is not confined only to the extent of physical violence, it includes the mental torture, hateful attitude of husband or other inmates of the house and also includes the circumstances in presence of which the wife is forced to abandon the house of her husband. We are fortified in our view from the judgment of this Court in the case reported as Mst. Amreen v. Muhammad Kabir 2015 YLR 170 wherein, it has been observed as under:- ".....The question whether the wife has voluntarily left the house of her husband or she was ousted from the house or she was forced to leave the house due to cruel attitude has to be decided on the basis of evidence. The cruel attitude is not confined only to the extent of physical violence, it includes the mental torture, hateful attitude of husband or other inmates of the house and also includes other circumstances, in presence of which the wife is forced to abandon the house of her husband. The cruelty is defined, in an unreported case titled Shamim Akhter v. Arshad Mehmood (Civil Appeal No.57 of 2010, decided on 21.02.2013), it was observed as under:- 'Under Clause (a) of ground (viii), if the husband treats the wife with cruelty, assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, then too, the wife is entitled to have a decree of dissolution of marriage. The reading of aforesaid section reveals that marriage can be dissolved on all the grounds or any one of them if proved by the wife. Ground (viii) of Section 2 of the Act makes it abundantly clear that it is not necessary that there shall be physical ill-treatment rather the cruel conduct and cruel treatment is a valid ground for dissolution of marriage. The word 'cruelty' in Black's Law Dictionary (Eighth Edition) is defined as under:-- 'Cruelty.

The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage.' 'legal cruelty. Cruelty that will justify granting a divorce to the injured party; specific, conduct by one spouse that endangers the life, person, or health of the other spouse, or creates a reasonable apprehension of bodily or mental harm. mental cruelty. As a ground for divorce, one spouse' course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse. Physical cruelty. As a ground for divorce, actual personal violence committed by one spouse against the other.' The dictionary meaning of word 'cruelty' clearly shows that cruelty may be mental or physical. Cruelty by conduct of a spouse also justifies the grant of divorce. This Court in a case reported as Syed Imtiaz Hussain Shah and another v. Mst. Razia Begum and 3 others [2011 SCR 233], observed as under:-- " . The argument advanced on behalf of the appellant that the factor of cruelty is not proved because none of the witnesses stated that he has witnessed any sign of injury caused by the appellant on the person of the respondent". Such an argument is itself indicative of the cruel mentality. For proof of cruelty infliction of injury is not required by law. In matrimonial matters, the Courts have been treated false allegation against a wife to be a cruelty which results into mental torture and loss of mutual confidence.' In another case reported as Muhammad Shariful Islam Khan v. Mst. Suraya Begum and others [PLD 1963 Dhaka 947] it was observed in Para 13 as under:-- '

13. The view of mine also finds support in the dissolution of Muslim Marriage Act (Act VIII of 1939). Many grounds for divorce by a suit by the wife have been provided for in this Act. One of them is cruelty. Cruelty can be physical and mental. Mental Cruelty is the worst. The false allegation by the husband of a chased women as to chastity of a chased woman cuts to the heat. It is an evidence of the woman that the plaintiff and her father were arrested by the Police in criminal proceedings against her and the plaintiff was jeered at by the husband (defendant No.1).' The trial Court has observed that cruelty is not proved. The plaintiff and her witnesses categorically stated in their Court statements that the husband habitually assaults and beats the plaintiff and made her life miserable by cruel conduct. The trial Court has misread the evidence. The cruelty of the husband/defendant is proved from the record." In Ameer Ali's Mohammedan Law, Volume 2 it has been observed as under:- "But the right of the wife to maintenance is subject to the condition that she is not 'refractory' or does not refuse to live with her husband without lawful cause." Where wife refuses to return to her husband's house without sufficient cause she is not entitled to maintenance. Ordinarily no person who is poor is under a duty to maintain any other relation. This rule is also subject to exceptions. A person is bound to maintain the following relations even though he is poor:- (a) the wife even if the husband is necessitous (Sec. 82); and (b) sons till they attain puberty and daughters till they are married provided they are poor.' Tanzeel-ur-Rehman, in subsec-tion (6) of section 86 of Majmoo-a-Qawanin Islam has observed as under:- In the case reported as Arshad Ali v. Additional District Judge, Wehari and others [2002 CLC 1450] was observed as under:-- '

11. There is no cavil to the proposition that a husband is bound to maintain his wife but right of maintenance of the wife is subject to the following conditions: (i) She must be faithful to the husband and obey his reasonable order, if she refuses herself to him, he is not bound to maintain her. (ii) Wife is not entitled to maintenance when she lives apart from the husband except for non-payment of her dower in which case her right of maintenance continues even though she is living apart from him." It was observed in the case titled Mst. Iqra v. Abuzar [2012 YLR 1488] as under:- '

7. According to the 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 during the subsistence of the marriage if the wife has not given any cause for their non-payment. The subsistence is incumbent upon her husband. The maintenance, in all circumstances, is to be considered a debt upon the husband in conformity with his tenet. It is really remarkable in Islam that as soon as two sui juris persons enter into contract of marriage so many rights are created but as soon as the marriage is dissolved, those rights will continue according to the Injunctions of Holy Qur'an. Wife can justly claim maintenance from the date of accrual of cause of action and not necessarily from the date of first seeking redress as has been laid down in case titled Muhammad Asad v. Mst. Humera Naz and others [2000 CLC 1725] in which it has been observed as under:- 'It is really remarkable in Islam that as soon as two sui juris persons enter into contract of marriage so many rights are created but as soon as the marriage is dissolved, those rights will continue according to the injunctions of Holy Qur'an. It is also held in Sardar Muhammad v. Naseema Bibi and others [PLD 1966 (W.P.) Lah. 703] that wife can justly claim maintenance from the date of accrual of cause of action and not necessarily from the date of first seeking redress.' Similarly in a case reported as Ahmed Riaz v. Mst. Qaisera Minhas and others [1994 CLC 2403], it has been observed as under:-- 'The basic principle was enunciated in Rashid Ahmed Khan v. Mst. Nasim Ara [PLD 1968 Lah. 93] wherein it was held that the husband should maintain the wife starting from the matrimonial tie and this right can be enforced with regard to the period of matrimonial life.' It is also laid down in the supra titled judgment that the marriage in Islam being in the nature of a contract, dower is the consideration agreed between the parties which the husband has to pay to the wife either promptly or subsequently, in accordance with the terms of the agreement. On the contrary, maintenance is an obligation, which is one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances. The obligation of husband to maintain his wife has been derived from Verse No.232 of Sura Al-Baqra.

8. In Islam a husband is bound to maintain his wife throughout the period she remains in matrimonial bonds with him. Maintenance to the wife is not an ex gratia grant but husband is obliged to maintain his wife as has been held in a case reported as Iqbal Hussain v. Deputy Commissioner Collector Lahore and 3 others [PLD 1995 Lah. 381], wherein it has been observed as under:- '(10) This consensus amongst Muslim jurists was given effect to by the legislature by enacting the Dissolution of Muslim Marriages Act, 1939. That Act placed an obligation on the husband to maintain his wife who was entitled to seek a decree for dissolution of marriage in the event of his failure to do so. After this enactment, the maintenance could no longer be said an ex gratia grant. Consequently, no reliance can be placed on the principles stated in Hedaya, Fatawa-i-Alamgiri and Fatawa-i-Kazi Khan mentioned above.'

9. According to D.F. Mulla maintenance includes food, entertainment and lodging. According to the same author, the husband is bound to maintain his wife (unless she is too young for matrimonial intercourse) so long as she is faithful to him and obeys his reasonable orders."

9. The case law referred to by the counsel for the appellant is not relevant to his case, as nothing has been brought on the record that the respondent left the house of the husband with her own free-will, rather she was forced to leave the same, therefore, the element of torture and cruel attitude has been proved through cogent and reliable evidence. In such scenario, the trial Court has rightly observed that the plaintiff-respondent is entitled to get the decree or dissolution of marriage on the ground of cruelty.

10. So far as the decrees passed by the trial Court for recovery of dowry articles and maintenance allowance in favour of respondent No. 1, are concerned, it appears that the same have been passed after examining the evidence led by the parties in detail, which findings have been upheld by the Court below, on appeal. The appellant failed to point out any misreading or non-reading of evidence or any illegality in the judgment and decree passed by the Courts below. In the light of above discussion, we are of the unanimous view that the trial Court has analyzed the evidence in a legal manner and rightly recorded the findings, which have been upheld by the first-appellate Court. No case of misreading or non-reading of evidence has been made out. Resultantly, finding no force in this appeal, the same is hereby dismissed, with no order as to costs. MQ/24/SC(AJ&K) Appeal dismissed.