2017 PLP 1184 (CLC)

CH. MUHAMMAD IBRAHIM ZIA, J.

The captioned appeals by leave of the Court have arisen out of the judgment and decree of Shariat Court dated 19.9.2011, whereby on the appeal filed by Muhammad Sabil Khan, appellant, the judgment and decree passed by the trial Court on the ground of cruelty is modified in the terms that the marriage stands dissolved on the basis of khula. Moreover, it is declared that the plaintiff-appellant, Saima Inshad shall not claim the amount of dower which has been granted to her by the trial Court.

2. Necessary facts giving rise to this appeal are that Saima Inshad, appellant filed a suit for dissolution of marriage, recovery of dower, maintenance and recovery of dowry in the Court of Judge Family Court, Rawalakot. A cross suit was also filed for restitution of conjugal rights by Muhammad Sabil Khan, appellant. The trial Court consolidated both the suits filed by the parties and after necessary proceedings granted a decree for dissolution of marriage in favour of Mst. Saima Inshad on the ground of cruelty. A decree for recovery of dower to the tune of Rs.200,000/- was also passed in favour of Saima Inshad. Similarly, the decree for recovery of dowry items was also granted otherwise Rs.60,000/- was ordered to be paid. The suit filed by Muhammad Sabil Khan was dismissed whereas the suit for grant of maintenance charges was also decreed. Muhammad Sabeel Khan, appellant filed an appeal before the Shariat Court challenging the judgment and decree of the trial Court. The Shariat Court after necessary proceedings decided the appeal in the terms indicated in para 1 hereinabove.

3. Syed Habib Hussain Shah Advocate, the learned counsel for the appellant, Saima Inshad, after discussion of facts submitted that the judgment and decree passed by the Shariat Court is quite against the settled principles of justice. He submitted that cruelty is proved from evidence and all the witnesses have deposed in their statements that Muhammad Sabeel Khan remained maltreating her and due to torture she was unable to live with her husband. He further submitted that not only the witnesses of plaintiff, Saima Inshad but also the witnesses of defendant, Sabeel Khan have deposed in their statements about the cruel treatment but the Shariat Court while modifying the judgment and decree passed by the trial Court has erred in law while not taking into consideration the statements of witnesses. He further submitted that the judgment of Shariat Court is not sustainable, therefore, by accepting the appeal filed by Mst. Saima Inshad, the judgment and decree of Shariat Court be set-aside and that of the trial Court be restored. In support of his version, he has cited the cases reported as Zeeshan Butt v. Jamila Shafi [2007 SCR 187], Syed Imtiaz Hussain Shah and another v. Mst. Razia Begum and 3 others, [2011 SCR 233], Mst. Faiza Firdous v. Ghulam Shabbir [2002 CLC 1801], Muhammad Younas v. Shahnaz Begum [PLD 2004 SC (AJ&K) 17], Dr. Muhammad Ali Chohan v. Mst. Fakhr-un-Nisa and another [2009 CLC 255], Shaukat Hayat v. Mst. Shabnam Akhter [2008 YLR 1124], Bibi v. Ghulam Rasool alias Sulla and another [PLD 1997 Lahore 108].

4. While refuting the arguments, Sardar Shamshad Hussain Khan, Advocate, the learned counsel strongly defended the impugned judgment and submitted that the Shariat Court has not committed any illegality or irregularity while recording the impugned judgment. He submitted that all the witnesses brought on record are related to each other and interested one, therefore, their statements cannot be believed. He further submitted that cruelty is not proved beyond any reasonable doubt. Mere statements of witnesses based upon hear sayings cannot be taken into consideration while recording findings in the judgment where rights of the parties are involved. He submitted that the Shariat Court has properly appreciated the evidence to the extent of the decree of dissolution of marriage on the ground of Khula in the light of statements of the witnesses whereas regarding the dower and maintenance has not adhere to consider the record. Hence, the impugned judgment do not suffer from any misreading or non-reading of evidence, hence, need no interference by this Court.

5. We have considered the respective arguments of the learned counsel in the light of pleadings of the parties and examined the record. In our considered view, although in these appeals the decrees passed in different suits filed by the parties are subject matter, however, except the decree for dissolution of marriage, rest of the decrees granted by the trial Court did not call for any interference for the reason as the same have been passed almost upon admission of defendant. The appellant-plaintiff has also accepted these decrees passed by the learned Judge Family Court and she has categorically in the memo. of appeal prayed for restoration of the same. The trial Court has granted the decree of dower in tune of Rs.200,000/- A perusal of the pleadings of the parties reveals that the appellant claimed Rs.400,000/- as dower. The defendant-respondent in his written statement has categorically admitted that the dower was fixed as Rs.400,000/-, and Rs.200,000/- has been paid in shape of ornaments, whereas 200,000/-is payable. Reply of the defendant-respondent in the written statement in the prayer clause is as under:-

6. Same like the appellant has claimed recovery of dower in tune of Rs.1,51,300/- whereas the trial Court has granted the decree only to the extent of Rs.60,000/- which also requires no further proof as the same has been admitted by the defendant-respondent in his written statement as well as the statement recorded as a witness in the Court. He deposed that:- Thus, the decree granted by the Court based not only on the evidence but also on admission of respondents, hence, no further proof is required. Same like the decree of maintenance allowance admittedly is passed on the ground that the respondent failed to maintain the appellant and he has also admitted that at the time of the contract of marriage, he has accepted the condition that he will pay Rs.5000/- maintenance allowance per month, in case of desertion. According to statutory provisions, admitted facts need not be proved.

7. Now the only most controversial question which requires consideration is the question of ground for dissolution of marriage. The trial Court, after appreciation of evidence dissolved the marriage on the basis of cruelty, whereas the learned Chief Justice Shariat Court through the impugned judgment, on the basis of appreciation of evidence of only 4 witnesses namely Zubair Hashmi, Muhammad Akhlaq, Abdul Jabbar and Saima Inshad has drawn the conclusion that the alleged cruelty has not been proved and converted the decree of dissolution of marriage on the ground of cruelty into decree on the ground of "khula".

8. There are not only the above named witnesses but some other witnesses namely Kousar Khawaja and Muhammad Aqeel have also been produced. Whereas on behalf of defendant-respondents, Lal Khan, Hameed Khan, Javed Khan, Muhammad Bashir Khan, Sher Afzal Subedar Muhammad Latif Khan and Abbas Khan also appeared as a witness and the defendant have also got his own statements recorded. According to the celebrated principle of appreciation of evidence, in civil cases, when both the parties have produced evidence, then for determination of the controversial factual issue, the Court has to examine the whole evidence to draw the conclusion.

9. It is also now settled principle of law that in civil matters, unlike criminal cases, standard of proof is quite different and the Court can record findings on the basis of preponderance of probability drawn from appreciation of whole evidence. This principle has been laid down not only by apex Court of Pakistan but this Court also in the case reported as Sub Rtd. Muhammad Aziz Khan v. Muhammad Hanfi and others, (2012 CLC 1521) has observed as following:- "

7. In the civil cases the celebrated principle of law is to record findings in favour of the party in whose favour the material brought on record creates preponderance of probability. Thus, the cumulative analysis and appreciation of evidence creates preponderance of probability in favour of plaintiffs-respondents. On this point, this Court has already enunciated principle of law in cases reported as PLD 2010 SC (AJ&K) 47, 1982 CLC 1309 and PLD 1981 SC (AJ&K) 118...." Same like in the case reported as Haji Muhammad Idrees v. Mehmood and another, reported as 2000 MLD 1813 while dealing with the identical proposition, it has been observed as under:- " .. In civil cases, unlike the criminal cases the plaintiff has not to prove his case against his opponent beyond any reasonable shadow of doubt. On the other hand, if the preponderance or probability of evidence is in favour of a particular party, that party is likely to succeed. In our view, the initial burden of proof of the material issues Nos.2 to 4 was on the plaintiff who successfully discharged the same and it shifted upon defendant No.1 who was to rebut the same but in rebuttal we find no evidence on behalf of defendant No.1 as he did not opt to appear in the Court. Needless to say that the statement of defendant No.2 is neither relevant nor sufficient to rebut the burden of proof initially discharged by the plaintiff. It is correct that initial burden of proof in a case is always on the plaintiff, but if the plaintiff discharges that onus and makes out a case which entitles him to relief, the onus shifts on defendant to prove the circumstances, if any, which disentitle the plaintiff to that relief. It is not always easy to determine as to what particular point it shifts from plaintiff to defendant as evidence gradually continues to be adduced but at the conclusion of trial when the issue come to be judged it has to be seen whether the initial onus which section 118 of Qanun-e-Shahadat casts upon plaintiff has been discharged or not." In another case titled Muhammad Said Khan and 32 others v. Abdul Qayyum Khan, reported as [2000 SCR 594], while dealing with the same question, this Court observed as follows:-- "... It may also be clarified that unlike a criminal case in a civil case a plaintiff is not supposed to prove his case beyond any reasonable shadow of doubt but the Court of law is expected to decide a dispute on the basis of preponderance of evidence." When the instant case is judged on the touch stone of the enunciated principle of law, it appears that the Chief Justice Shariat Court has not dived deep while making appreciation of evidence. For instance, in the impugned judgment, the learned Chief Justice has partially made appreciation of only two witnesses appearing on behalf of appellant i.e. Muhammad Zubair Hashmi and Muhammad Akhlaq, whereas the learned Chief Justice has mentioned the name of Abdul Jabbar witness but the judgment is silent regarding the proper appreciation of the statement of this witness. For the ends of justice, we have made appreciation of the whole evidence. Abdul Jabbar witness has made important deposition in his statement which speaks as under:- The witness has been cross-examined by the defendant-respondent but it is very strange that regarding this material deposition made in examination in chief, no question in cross-examination was put to the witness, thus, this important portion of the statement remained unchallenged. Same like, the Shariat Court has also not considered the statement of one lady witness Kousar Khawaja, who deposed that:- In the cross-examination, this deposition has been further strengthened with the deposition:-

10. Not only the witnesses of the plaintiff-appellant have supported her version even it also finds support from the deposition made by the witnesses produced by the defendant-respondent. Muhammad Abbas, defence witness states that:- The defendant himself deposed that: The plaintiff-appellant has also alleged that defendant is of hyper temperament and he also injured his own brother by firing. This fact has been admitted by the father of defendant Muhammad Bashir who appeared as defence witness in the Court and deposed that:-

11. The plaintiff-appellant has also deposed in her statement that the defendant-respondent has threatened her that once he will take her back to home, he will cut her nose and ears to make her disabled. This material deposition has also not been challenged in the cross-examination. Thus, the cumulative appreciation, examination and comparison of the evidence of the parties, it can easily be ascertained that the preponderance of probability clearly goes in favour of the appellant-plaintiff.

12. The term 'cruelty' with reference to matrimonial matters is to be judged within the parameters of statutory provision of section 2 of the Dissolution of Muslim Marriages Act, 1939, which speaks of different kinds and natures of cruelty. The term 'cruelty' is not only confined to physical assault or inflection of physical injuries rather it being a comprehensive terms as elaborated in the statutory provisions which includes all types of cruelty which may be classified as legal, mental and physical. This Court while dealing with the identical factual and legal proposition has handed down an authoritative judgment in the case titled Shamim Akhter v. Arshad Mehmood (Civil Appeal No.57/2010 decided on 15.3.2013). The relevant para 6 of the judgment dealing with the identical proposition reads as under:- "

6. Section 2 of the Dissolution of Muslim Marriage Act, 1939, deals with the grounds of dissolution of marriage. We deem it proper to reproduce the said section, which reads as under:- `

2. Grounds for decree for dissolution of marriage:- A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:- (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii) that the husband has been sentenced to imprisonment for a period of seven years or upward; (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years; repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated; (viii) that the husband treats her with cruelty, that is to say, (a) Habitually assaults her or makes her life- miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran; (ix) on any other ground which is recognized as valid for the dissolution of marriages under the Muslim law, Provided that -- (a) no decree shall be passed on ground (iii) until the sentence has become final; (b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties the Court shall set aside the said decree; and (c) before passing a decree on ground (v) the Court shall on application by the husband, make an order requiring the husband, to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground." A bare reading of Section 2 reproduced hereinabove shows that a women married under the Muslim Law is entitled to obtain a decree for dissolution of marriage on all the grounds or any one of the grounds laid down in the Section. Under ground (ii), if the husband has neglected or has failed to provide for her maintenance for a period of two years then wife is entitled to obtain a decree for dissolution of marriage and under ground (iv), if the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years then the wife is entitled to obtain a decree for dissolution of marriage. 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; specif 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 woman as to chastity of a chased woman cuts to the heart. It is an evidence of the woman that the plaintiff and her father were arrested by the Police in the 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."

13. The examination of the impugned judgment reveals that the Shariat Court has not taken into consideration the whole evidence and material brought on record. Thus, the conclusion drawn is result of misreading and non-reading of evidence. It is also pertinent to mention that in such like cases, it is also difficult to prove the factor of cruelty and only the persons who are closely related and inmates or family friends can be relevant witnesses and their statements cannot be ignored merely being relative or interested persons unlike the other cases.

14. It is also celebrated principle of law that for proof of cruelty, it is not necessary that physical assault or injury is required to be proved rather some times, the conduct and behaviors without physical assault has also been treated by the Courts as cruelty. Even the mental torture and suffered by the wife due to behaviors of her husband can also be treated as cruelty. In the instant case, a specific stand has been taken by the defendant-respondent in his written statement that the plaintiff-appellant during the period of study in the school time used to travel by his taxi for years and when she and her mother failed to pay the fare, the plaintiff-appellant was wedded with him. Thus, the examination of written statement and the stand taken by the defendant-respondent also speaks of his mental approach and such allegation also amounts to mental torture and cruelty. In this state of affairs, the judgment of the Shariat Court is not sustainable. Consequently, while accepting this appeal filed by Saima Anshad, the plaintiff-appellant, the impugned judgment is recalled. Consequently, the judgment and decree passed by the learned trial Court stands restored. As in the result of detailed reasons recorded hereinabove, after detailed appreciation of the material brought on record, the appeal of Saima Anshad stands accepted. Resultantly, the appeal filed by Muhammad Sabeel Khan etc. the defendant-respondents, stands dismissed. ZC/81/SC(AJ&K) Order accordingly.