2004 PLP 1168 (CLC)

This appeal has been preferred against the decision and decrees of Judge, Family Court, Kotli dated 28‑4‑2003, whereby a decree for dissolution of marriage was, passed in favour of respondent No. 1 on the basis of non‑payment of maintenance allowance and the cross‑suit of the appellant for restitution of conjugal rights was dismissed. The brief facts forming the background of the instant appeal are that the appellant and respondent No. 1 married to each other on 5‑6‑1992. The spouses lived together for 8 years but due to tire cruel behaviour of the appellant, respondent No. 1 filed a suit for dissolution of marriage on the grounds of non‑payment of maintenance, non performance of marital obligation and in alternative on the ground of "Khula". The appellant also filed a cross‑suit for restitution of conjugal rights. Both the suits were consolidated by the learned Judge, Family Court and in the light of the pleadings of the parties the following issues were framed:‑‑ Issue No.(i) Whether the‑ plaintiff is entitled to a decree for dissolution of marriage on the grounds of cruelty, non‑payment of maintenance allowance and non‑performance of marital obligations? OPP Issue No.(ii) In case Issue No. 1 is not proved whether the plaintiff is entitled to a decree for dissolution of marriage on the ground of "Khula"", if yes, then on what conditions? OPP Issue No.(iii) Whether the defendant is entitled to a decree for restitution of conjugal rights, if yes, then how? OPD Issue No.(iv) Relief. After recording the evidence of both the parties, the suit filed by respondent No.1 was decreed on basis of non‑payment of maintenance allowance while the second one filed by the appellant was dismissed by the Family Court vide its decision, dated 28‑4‑2003. The impugned decision and decrees are the subject‑matter of instant appeal before this Court. Ch. Muhammad Bashir Inqalabi, the learned counsel for the appellant submitted in support of his appeal that the learned Judge, Family Court misdirected himself by deciding Issue No.1 and relying upon the statement of the appellant instead the evidence led by respondent No.

1. According to him, respondent No. 1 was duty bound to prove that the appellant failed to provide her alimony. The learned counsel also argued that respondent No.1 was living separately without any cogent reason and was not willing to perform her marital duties, therefore, she was not entitled to stay away from her husband and in this manner the appellant was not bound to maintain her. The learned counsel contended that the learned Judge, Family Court did not appreciate the evidence in its true perspective and arrived at a wrong conclusion. In support of his contention, the learned counsel relied upon the following authorities:‑‑ (1) PLD 1961 Pesh. 66; (2) PLD 1967 (AJ&K) 32; (3) 1980 CLC 1098; (4) PLD 1981 Lah. 335 and (5) 2003 CLC

504. On the contrary, Ch. Mehboob Elahi, the learned counsel for the respondents, has vehemently argued that the learned Judge, Family Court has not recorded its findings on the basis of the statement of appellant only rather he has appraised the evidence led by both the parties in a legal fashion. In support of his contention, the learned counsel has referred to the various portions of the evidence led by the parties. The learned counsel further submitted that the authorities cited by the learned counsel for the appellant have been reported before the promulgation of Azad Jammu and Kashmir Family Courts Act, 1993, therefore, cannot be relied upon. The learned counsel also argued that the learned Judge, Family Court, after proper appraisal and appreciation of the evidence brought on record, reached the conclusion that the appellant failed to provide for her maintenance allowance, therefore, the impugned decision and decrees do not warrant any interference. In support of his arguments, the learned counsel placed reliance on 2002 CLC

123. I have given my due consideration to the arguments addressed at Bar and perused the record with care. At the very outset, it will be useful to mention that the learned Judge, Family‑ Court has not appraised and appreciated the evidence of the parties in its true perspective, thus] has drawn wrong conclusions which are not sustainable. The perusal of the file shows that the suit for dissolution of marriage was filed on 9‑4‑2002 and according to the Para.(4) of the suit, respondent No.1 was ousted from the house of the appellant two years prior to the institution of the suit. Thus, according to her own version, she was ousted from the house of the husband on 9‑4‑2000. Keeping in view the above averment of respondent No. 1, it is to be determined as to whether she succeeded to prove that she was ousted from the house of her husband on 9‑4‑2000 and from that period till now she was neglected by her husband who failed to provide for her maintenance allowance. To prove Issue No. 1 (to the extent of non‑payment of maintenance allowance) respondent No. 1 herself appeared in the witness‑box and produced Fateh Muhammad and Jan Muhammad, as her witnesses but both the witnesses miserably failed to support the case of respondent No.

1. Fateh Muhammad, a witness for respondent No.1, stated on 9‑9‑2002 that the separation of the spouses took place in absence of the appellant He further admitted that brother of the appellant had sent a complains to police against him. He also admitted that his land is adjacent to the land of appellant's father, therefore, there is always a chance of altercation between them. Thus, the witness is animus to the appellant, therefore, his statement is not reliable. Jan Muhammad, another witness for respondent No. 1, has deposed that in the light of the decision of "Panchayat", the appellant constructed a separate house for respondent No. 1 but in spite of that she did not agree to live with him. The witness also testified that after obtaining jewellery respondent No. 1 went to live with the appellant and lived with him for two years. He further admitted that the father of the appellant refused to appear in the Court as witness in his personal case whereas the uncle of respondent No. 1 appeared as witness in his favour. The witness also admitted that at the time of separation the appellant was not at home. The aforesaid evidence of the witness cannot be relied upon because of his grudge and enmity against the appellant, who did not appear as a witness in his personal case. Mst. Jamila Bibi, respondent No. 1, has also admitted that she became angry because of her sister and when she left the house her husband was not present at home. She further admitted that when the appellant gave her the golden ornaments she lived with him but after that she went back home and in spite of construction of a house by the appellant she did not go to live with him She also admitted that she left the house because of an altercation between her and the brother of appellant. On the other hand, Ghulam Muhammad, a witness for the appellant, deposed on 22‑1‑2003 that respondent No. 1 is living separately for the last two years. Similarly, Rahmat Ullah, another witness for the appellant who happens to be his uncle, has stated on 22‑2‑2003 that respondent No. 1 is living separately for the last two years. Muhammad Latif, another witness and father of appellant, has testified on 15‑3‑2003 that respondent No. 1 is living separately for the last one year. He further deposed that he gave land measuring. two Kanals to the father of respondent No. 1 alongwith golden ornaments worth Rs.32,500 and after that the appellant constructed a separate house for respondent No. 1 but she did not come to live with him. He further stated that respondent No. 1 and her other sister Zohra Bibi left the house of their husband on the same day. Abdul Rasheed, appellant, deposed that on the demand of respondent No. 1 he gave her golden ornaments worth Rs.32,500 but she left the house in his absence and on the advice of "Panchayat" he also constructed a separate house but she did .not come to live with him. In cross‑examination; he further stated that during the period of separation he went to respondent No.1 and tried to pay her maintenance allowance bit site refused to receive the same. The careful scrutiny of the evidence of parties reveals that respondent No. 1 has miserably failed to discharge the burden of proof on Issue No. 1 to the extent of non‑payment of maintenance allowance to her by the appellant. Both the witnesses produced by respondent No. 1 are animus to the appellant, therefore, their statements cannot be taken into consideration, whereas the appellant has succeeded to rebut the version of respondent No. 1 through his evidence. Although the witnesses Muhammad Latif is his father and Rahmat Ullah is his first cousin but the evidence of Ghulam Muhammad, a witness for the respondent, by itself is sufficient for rebuttal coupled with the evidence of Abdul Rasheed, appellant. It is the fundamental principle of law that it is the basic duty of a plaintiff to prove her case through her own evidence and she cannot be allowed to take the benefit of weaknesses of the defence evidence. 2003 CLC

504. In the instant case neither respondent No. 1 succeeded to prove her case nor any weakness in the evidence of defence appears which could render any help to respondent No.1 in this respect, the learned Judge, Family Court misdirected himself while recording that respondent No. 1 and her witnesses have proved the factum of non‑payment of maintenance allowance. The learned Judge, Family Court also misdirected himself while holding that because of the reason of prior litigation of maintenance allowance, it has been proved that in the present situation the appellant has neglected or failed to provide maintenance to his wife for a period of two years. The learned Court below also appreciated the certain portions of the statement of appellant in an arbitrary, illegal fashion and against the record. The appellant deposed before the Court that one and half years or two years before, he went to respondent No. 1 to provide for her maintenance allowance but she refused to receive the same. The aforesaid statement of appellant was recorded on 15‑3‑2003, thus, according to him, the incident took place on 15‑3‑2001 whereas according to respondent No. 1 she was ousted from the house of the respondent on 9‑4‑2000. In this manner, according to the appellant the incident of offer and refusal of maintenance allowance took place in year 2001 after one year of the separation of spouses, whereas for seeking a decree for dissolution of marriage on the ground provided under item (ii) of section (2) of the Dissolution of Muslim Marriages. Act, 1939, it is incumbent upon a wife/plaintiff to prove that her husband has neglected or has failed to provide for her maintenance for a period of two years. In the instant case, the plaintiff/respondent failed to prove that she. was neglected by the appellant or he has failed to provide for her maintenance allowance for a period of two years but the Family Court without applying its judicial mind and appreciating the evidence against the admitted principle of law of evidence, recorded in a sketchy manner as under:‑‑ There is another element in the case which creates even great difficulty for respondent No.

1. It is admitted by respondent No. 1 and her witnesses, Fateh Muhammad and Jan Muhammad that at the time when respondent No. 1 left the house of her husband, the appellant was not at home, therefore, respondent No. 1 also failed to prove the fact that she was ousted from the house ‑ by her husband after giving physical ill -treatment. It is celebrated. principle of law that if a wife refuses to live with her husband without any lawful excuse and deserts her house or otherwise willfully fails to perform her marital duties, she has no right to claim maintenance allowance from her husband and if the husband in that case does not maintain his wife, it cannot be said that there is negligence or failure to provide for the maintenance of the wife. In the present case, it has been amply proved on the record that respondent No. 1 left the house of her husband in his absence for the sake of her sister. The husband gifted her golden ornaments on her demand and after living with him for a period of two years, she again left him alone. Furthermore, on her demand a separate house was constructed for her but she deliberately refused to return to her husband after voluntarily going away. On this account, the appellant/husband is not bound to maintain respondent No. 1 separately. My this view finds support from Mst. Sherinzadgi's case PLD 1961 (W.P.) Pesh.

66. The‑same view was affirmed in the case titled Mst. Resham Bibi v. Muhammad Shafi PLD 1967 (AJ&K)

32. The same view was reaffirmed by the apex Court in a case reported as Abdul Rehman v. Khalida Bi and others 1980 CLC 1098 wherein the following principle was enunciated:‑‑ "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 whereby her conduct she had disentitled herself for claiming maintenance." So far as the case reported as Mst. Asghari Sultana v. Chaudhary Shamim Ahmed and 2 others 2002 CLC 123 is concerned, it does not need any analytical survey because of the distinguishable facts. I also find little force in this plea of the learned counsel for respondent No. 1 that the authorities cited by the learned counsel for the appellant cannot be taken into consideration because all of them have been reported before the promulgation of Azad Jammu and Kashmir Family Courts Act, 1993. The perusal of above‑mentioned authorities shows that all these authorities deal with the cases filed under,, the Dissolution of Muslim Marriages Act, 1939, which provides the grounds for a decree of dissolution of marriage. The AJ&K Family Courts Act, 1993 provides a special procedure for the expeditious settlement and disposal of disputes relating to marriage and family affairs but in spite of the promulgation of above Family Courts Act, the basis and grounds for dissolution of marriage remain the same as provided in section 2 of the Dissolution of Muslim Marriages Act, 1939. The crux of the proposition is that the findings of the Court below are based on glaring defects, material irregularities and legal infirmities. The learned Judge; Family Court failed to appraise and appreciate the evidence of the parties in its true perspective. In such state of affairs, the decision and decrees passed by the learned Judge, Family Court cannot be sustained. For the reasons listed above, I accept this appeal and set aside the impugned decision and decrees dated 28‑4‑2003 passed by the learned Judge, Family Court. Resultantly, a decree for restitution of conjugal rights is passed in favour of Abdul Rasheed, appellant herein, against Mst. Jamila Bibi, respondent No. 1 herein. No order as to costs. H.B.T./4/Sh.C.(AJ&K) Appeal accepted.