1980 PLP 1098 (CLC)

RAJA MUHAMMAD KHURSHID KHAN, J.-This appeal by leave seeks to impeach the judgment and decree passed by the learned Single Judge of the High Court on 31st December, 1977, whereby the learned Judge finding no ground to interfere with the judgment and decree for dissolu tion of marriage passed by the District Judge, Mirpur, in favour of the respondents on 16th of May, 1977, maintained the same.

2. The respondent, Mst. Khalida Bi, herein on 18th June, 1973, sued her husband, the appellant, to this appeal for cancellation of her marriage on the grounds :- (1) That the appellant had neglected and failed to provide for her maintenance for a period of two years ; (2) that the appellant had failed to perform his marital obligations for a period of three years ; and (3) that she was maltreated by the appellant during the period of a year after her marriage, he remained with her at the house of her mother. At a later stage of the trial she also claimed separation on the basis of 'khula". The appellant's answer in written statement was denial simpliciter. He did not put his case in specific terms.

3. Abdul Rehman, appellant, thereafter on 12th August, 1973, also instituted a cross suit against Khalida Bi for restitution of conjugal rights. He claimed that Mst. Khalida Bi after her marriage in April 1966, continuously remained and resided with him at his house and left his house six months prior to her suit and for his strained relations w; Saido and Naseeb Bi, defendants, despite his effort he failed to persua her to live and reside with him.

4. Respondent-defendants resisted the suit on the same grout which formed basis of dissolution of the marriage suit earlier filed Mst. Khalida Bi. The pleadings in both the suits gave rise to t following issues :-- "(1) Whether the treatment of the defendant against the plaint was cruel, if so, how does it effect the suit ? O. P. A. (2) Whether the defendant had not maintained the plaintiff for t last two years ? O. P. P. (3) Whether the defendant bad not performed the marital obligations for the last 3 years ? O. P. P. (4) Whether the defendant had not paid the dower to the plain on demand, if yes, how does it affect the suit ? O. P. D. (5) Where the defendants Mst. Saido and Naseeb Bi were restrain, the plaintiff not to live with her husband ? O. P. D, (6) Relief?" Both the suits were consolidated and disposed of by a single judgment.

5. The learned Sub-Judge vide his order dated 31st December, 1975 found all the issues against her and dismissed her suit. On the question of `Khula' he held that in his estimation there was a chance of compromise between the parties and thus it could not be said that the parties could not live within the limits ordained by God. The rival suit of the appellant for restitution of conjugal rights stood decreed. The learned District Judge on appeal vide his judgment dated the 16th of May, 1977, discharged the judgment of the learned Sub-Judge resulting in a decree for dissolution of marriage in her favour. Consequently the suit of appellant, husband, stood dismissed. The appellant then went in second appeal before the High Court which as earlier said was also disallowed on 31st December, 1977. Hence this appeal by leave.

6. The parties are in agreement that the 'nikah' of the spouses was contracted in April, 1966. It is also common ground between the parties that Abdul Rehman volunteered to live and reside at the house of the mother of Mst. Khalida, at the time of his marriage.

7. Mr. Muhammad Sharif Tariq, the learned counsel for the respondents argued that the first appellate Court as well as the High Court are one to hold

(1) that the appellant had failed and neglected to provide the maintenance allowance to his wife for the stipulated period ; (2) that the appellant had failed to perform the marital obligations for more than three years ; and (3) that be also ill-treated the lady during her stay with him at the house of her mother. According to him these concurrent findings of fact arrived at after due consideration of the evidence, cannot be disturbed in the appeal before the Supreme Court.

8. Ch. Muhammad Taj, the learned counsel for the appellant 'countered the argument on the ground that the findings of the first appellate Court maintained by the learned Single Judge are erroneous as they are based on misreading and non-reading of the evidence and this Court is duty bound to upset such a finding. In alternate, it had been contended that even if the findings are presumed to be factually correct the decree for dissolution of marriage cannot sustain because the agreement arrived at between the parties that the appellant will be a 'khanadamad' for its being against public policy being void under section 23 of the Contract Act, one does not oblige the appellant to provide her the maintenance allowance and perform the marital obligations at the house of his in-laws. According to him the respondent, Mst. Khalida Bi, was only entitled to have maintenance allowance and seek for marital obligations, if there existed justifiable grounds for her refusal to live and reside with her husband at his house, and the appellant was not bound to maintain her and perform the marital obligations at the house of his in-laws, especially when despite his effort to bring her at his house, she refused to be persuaded. In view of this it is maintained that the neglect or refusal to perform any of the obligations at the house of his in-laws is not legal ground for dissolution of marriage. So far finding of maltreatment has been argued that this finding cannot be maintained as it does not get any support from any quarter except the statement of Mst. Khalida Bi and her mother and it is not safe to rely on their evidence without corroboration.

9. Let first the question as to whether concurrent findings can be interfered with by this Court, be gone into. It has been found by the learned District Judge and the High Court and this finding, unless it stands vitiated for misreading or non-reading of evidence, is binding on us, that the appellant had been living away from his wife without any valid reason for more than three years and that no maintenance allowance had been paid to he: for the period. We have looked into the evidence to see whether the judgment passed by the learned District Judge and maintained by the High Court suffers from any defect, as contended, of misreading or non-reading of evidence.

10. The respondent has examined Saido, Allah Ditta, Mst. Edo Bibi (her mother) and herself, whereas the appellant apart from himself has examined Muhammad Jewan and Muhammad Ibrahim. The statements of these witnesses have received due consideration and after having a critical survey of the evidence the learned District Judge as well as the learned Single Judge in the High court have very rightly found that respondent was abandoned by the appellant just after one year of the marriage. It is not the appellants case that he had been maintaining his wife since their separation His case, which has been found to be unproved, is that they have been living together since 6/7 months before her suit. Evidence led by appellant only proves that some effort to bring the lady to his house, was made after the institution of his suit. There is not an iota of evidence for show that he ever before the institution of his suit made any effort to bring her to his house or to provide maintenance allowance and perform the marital obligations during the long interval of separation for which the respondent, Mst. Khalida Bi, cannot in any way be blamed. The learned counsel failed to point out any misreading or non-reading of since. Therefore, the concurrent findings of the Ist appellate Court and the High Court are binding on us.

11. It is correct that under Muslim Law the husband is entitled to tile society of his wife and to demand obedience to his lawful orders and if she, without any valid reason, refuses herself to hint or disobeys his lawful orders, she is not entitled to maintenance. It is not correct to say that section 2 (ii) of Act VIII of 1939 casts upon the husband an absolute duty to maintain her . Before husband can be said to have neglect or failed to provide maintenance for his wife, it must be shown that he was under a legal duty to provide such maintenance and that where there was no such legal duty cast on him by the Muslim Law, it cannot be said that he had neglected or failed to maintain her if the wife without reasonable cause refuses to live with her husband, disobeys his instructions and declines to cohabit with him the husband's failure to maintain her in such circum-, stances cannot entitle her to a divorce under section 2 (ii), In Fazal Mahmud v. Mst. Umtur Rehim (A 1 R 1949 Pesh. 7) it has been observed that where wife herself refuses to reside with the husband or fails to discharge her marital obligations without any reasonable cause she can not claim maintenance under the Muslim Law and is not entitled to a divorce on the ground that she was not maintained by her husband. To the same effect is a case Mst. Shamim Fatima v. Ahmad Ullah Khan where dealing with the contention it was observed :.

"On the other point it has been argued that there is an absolute duty on a husband to maintain his wife and that the wife is entitled to a decree for dissolution of marriage even if she avoids the husband and refuses the shelter of his house which he offers to her. In our judgment there is no force in this argument. It must be remembered that the wife is not entitled to a decree for dissolution unless there is a failure on the husband's part. The Act does not mean that the husband is bound to follow his wife wherever she may go and force money or food or clothes upon her. In the present case the husband had obtained a decree for restitution and it seems that his house was open to his wife. If she refused to avail herself of tile shelter which was offered to her, she cannot complain and is certainly not entitled to a decree." Again in a case entitled Jamila Khatoon v. Kasim Ali Abbas Ali (A I R 1947 All, 3) in the head note which clearly brings out the point decided it is said. Where the question arises whether there has been failure on the part of the husband to maintain his wife, the question must necessarily arise whether the wife was at the relevant time entitled to be provided with maintenance. Act VIII of 1939 crystallizes a portion of the Muslim Law and must be taken in conjunction with the whole of the Muslim Law as it stands. The words `to provide for her maintenance occurring in section 2 (ii) imply maintenance only in such circumstances as is allowed under the general Muhammadan Law. Where the wife voluntarily stayed away from her husband's house and despite the husband's request return to his house and live with him and despite also his Coffer of maintaining her there, she chose to stay in the house of her relation it cannot be said that these circumstances indicate neglect or failure on the part of the husband to maintain the wife merely because he did not send any money to her during this period and the wife is not entitled to claim divorce "

12. It therefore, follows that a muslim wife is not entitled to a decree for dissolution of marriage on mere proof of the husband's failure to maintain her where by her conduct she had disentitled herself for claiming maintenance.

13. In the present case as the evidence fails to prove that ever since the appellant left her alone somewhere in the year 1967, he ever, before the institution of his suit in the year 1973, made any effort to bring his wife to live and reside with him at his house. Therefore, it must be held on the facts, that. respondent, Mst. Khalida Bi, has not disentitled herself to demand maintenance at the house of her mother because the appellant had no legal excuse not to perform the marital obligations and pay maintenance allowance thereat. He of his own accord chose to live with his wife at his in-laws and when he left her lie cared not ask her to live and reside with him at his house. No question of any agreement to be a 'khanadamad' arises in this case. The appellant himself chose to live with his in-laws and therefore the point agitated that the agreement to be a `khanadamad' is a void contract does not arise and naturally needs no determination.

14. There is still another feature of the case. The appellant's case as stated in his written statement is that she was living with him at his house and on the instigation of her mother, she left his house without any plausible cause. This stand of the appellant is not even owned by the witnesses examined by him. The witnesses examined by the parties are in total agreement that the wife since marriage lived anti resided at the house of her mother. It is thus clear that the appellant has taken a stand destructive to his evidence that the resondent Mst. Khalida Bi, was residing and living with him at his house' and left the house for her mother's .house 6/7 months before he instituted the suit in the year 1973. The learned counsel for the appellant when asked as to how can he explain the stand taken in his statement which is contrary to the evidence led by him, maintained that the allegations made in the written statement should not be taken into consideration in proof of the case of the appellant ; and that the evidence led by him should be looked into for this purpose. This contention is without substance. It is well settled principle of law that the allegations in the plaint and in the written to statement are also to be taken into consideration for finding out the truth or falsehood of the case built up at the trial. Ghulam Mohi-ud-Din v. Sher Khan (1970 S C M R 209) is to the effect that stand taken in the pleadings shall have to be considered while deciding the case. The respondent-plaintiff, Mst. Khalida Bi, has taken a definite stand that her husband, appellant, deserted her from the house of her mother. But the appellant's case is that she was living peacefully with him at his house since 6/7 months prior to his suit.

15. Apart from it, the appellant in iris written statement in answer to the suit of dissolution of marriage had not specifically pleaded that she left his house 617 months prior to the institution of the suit.. He simply denied all the charges leveled in the plaint.

16. It is cardinal principle of law that the material facts should be pleaded in offence or defence and if it is not done it deprives pleadings of most of their value and the defect creates hindrance in administering justice. In the instant case the omission in written statement as to from which day and which place the respondent, Mst. Khalida Bi, separated herself was not specifically pleaded in answer the specific charge in the plaint. Therefore, this very fact brings down appellant to a weaker ground P L D 1947 P C 180, is an authority on the point. It has been observed in that case :

Their Lordships think it desirable to point out that the rule that material facts should be pleaded is no mere technicality and that an omission to observe; it deprives pleadings of most of their value and may increase the difficulty of the Court's task of ascertaining the rights of the parties. The omission in the plaint in the present case has had the result of leaving the precise ground of the right claimed in some obscurity. Gopalu-Krlshnay,ya v. Madras Province 1' L D 1947 P C 180 (183)...(hord Du Parcq)-"

17. So far the issue of maltreatment is concerned, we do not feel safe to place implicit faith in the statement of Mst. Khalida Bi and her mother without any corroboration. This issue therefore, is decided against her.

18. As the respondent, Mst. Khalida Bi, succeeds on the grounds mentioned above we refrain to decide the question of `khuta" and leave it to be decided in a case where its decision is absolutely essential. For the reasons stated above the appeal fails with casts. S, Q. Appeal dismissed,