2004 PLP 1186 (CLC)

The above titled appeal has been directed against the decision and decree of Judge, Family Court, Kotli, dated 11‑5‑2002, to the extent of cruelty and non-payment of dower. The facts precisely stated are that Mst. Fozia Begum, appellant herein, filed a suit for dissolution of her marriage on grounds of cruelty, mental torture, non‑payment of maintenance allowance, non performance of marital obligations, non‑payment of dower and in alternative on ground of "Khula" before Judge, Family Court, Kotli on 18‑10‑2001. The appellant contended that the marriage of the spouses was solemnized on 16‑9‑1999 in lieu of dower in shape of golden ornaments worth Rs.48,808 which were later on snatched away by the respondent, herein, therefore, her dower is still payable to her. The appellant further stated that after her marriage she lived with her husband for two months only and during this period the respondent made her life miserable by abusing and physically beating her. Furthermore, the respondent failed to provide for her maintenance allowance and in performance of his marital obligations. In alternative, the appellant submitted that she has developed deep‑rooted hatred against the respondent, therefore, they cannot live together and lead a happy life within the limits ordained by Almighty Allah. The respondent refuted the allegations levelled in the plaint and submitted that the dower was paid to the appellant before the Nikah ceremony. He further avered that the appellant took away golden ornaments with her, when she left the house of the respondent. Tariq Hussain, respondent herein, also filed a cross‑suit for the restitution of conjugal rights. The learned Family Court consolidated both the suits and framed the following issues in the light of the pleadings of the parties:‑‑ (i) Whether the plaintiff is entitled to a decree for dissolution of marriage on the grounds of cruelty, mental torture, non‑payment of maintenance allowance, non‑payment of dower and non performance of marital obligations? OPP (ii) In case Issue No.1 is not proved whether the plaintiff is entitled to a decree for dissolution of her marriage on ground of Khula'? OPP (iii) In case Issues Nos. 1 and 2 are not proved whether the defendant is entitled to a decree for the restitution of conjugal rights? OPD (iv) Relief. To prove her case, the appellant entered into the witness‑box and also produced Muhammad Banaras and Muhammad Ishaq, as her witnesses. On the other hand Tariq Hussain, respondent produced Muhammad Yaqoob, Haji Nazar Muhammad, Ashiq Hussain as his witnesses and he also entered in the witness‑box. The learned Judge, Family Court arrived at the conclusion that the appellant failed to prove her case on the grounds of cruelty, mental torture, non‑payment of maintenance allowance, non‑payment of dower and non‑performance of marital obligations, however, a decree for dissolution of marriage on the ground of `Khula" in tune of Rs.48,000 or the golden ornaments worth Rs.48,000 was passed in favour of the appellant vide its decision and decree, dated 11‑5‑2002 which have been assailed through the instant appeal. Rafiullah Sultani, Advocate, the learned counsel for the appellant zealously argued that the Family Court has committed an illegality while passing a decree on basis of `Khula" and ignoring the other grounds for dissolution of marriage which have been amply proved by the appellant. According to him, the appellant has proved the fact that the golden ornaments which were given in lieu of dower, were later on snatched away by the respondent. In support of the above‑mentioned argument, he referred to me the statements of the appellant and her witnesses Muhammad Banaras and Muhammad Ishaq. The learned counsel stressed upon the point that the deposition of the above‑stated appellant and her witnesses were not challenged in cross‑examination, therefore, stand proved. The learned counsel further argued that the perusal of the written statement Piled by the respondent and the statement of the respondent discloses that he has not made any specific demand about the payment of Zar‑e‑Khula', therefore, the Family Court was mistaken to order for the payment of Zar‑e‑Khula'. The learned counsel also submitted that the appellant has proved in unequivocal manner that the respondent made her life miserable by persistently maltreating her whereas on the other hand her father‑in‑law who according to the appellant tried to commit sexual intercourse with her, did not appear as a witness in rebuttal but the trial Court also ignored this aspect of the case, therefore, the impugned judgment is not sustainable. In support of his contention, the learned counsel has referred to the following authorities:‑‑ (1) 1989 SCMR 173, (2) 1991 CLC 1647, (3) 1999 CLC 1358. Khalid Mehmood Khokhar, Advocate, the learned counsel for the respondent has controverted the arguments advanced by the learned counsel for the appellant and submitted that the Family Court has evaluated and appreciated the evidence of the parties in a legal fashion thus, does not warrant any interference by this Court. The learned counsel argued that the fact of snatching away the golden ornaments was specifically challenged in cross‑examination by putting questions not only to the appellant but also to her both of witnesses. In this respect he referred to me the certain portions of the cross‑examination made by the respondent. The learned counsel pointed out that the respondent did not claim the golden ornaments because he loves the appellant and wanted to populate with her. The learned counsel contended that the appellant has miserably failed to prove the fact of snatching away the golden ornaments or the alleged physical treatment. The learned counsel laid much stress upon the quality of evidence and submitted that the witnesses produced by the respondent are impartial persons who are living in neighbouring area whereas the witnesses of the appellant belong to a far- flung place. The learned counsel defended the impugned judgment on all counts. I have carefully taken into consideration the points canvassed by the learned counsel for the parties, after perusing the record made available with care. At the very outset, it will be appropriate to note that this argument of the learned counsel for the appellant has no substance that the statements of the witnesses appearing for the appellant, were not challenged in cross‑examination by the respondent, therefore, the fact of snatching away of the golden ornaments shall be deemed to have been proved. The perusal of the deposition of the witnesses discloses that respondent has specifically questioned the correctness of the assertion of the witnesses. In this respect the relevant portion of the cross -examination of Muhammad Banaras a witness for the appellant is referred below: ‑‑ Similarly, Muhammad Ishaq, another witness for the appellant was cross‑examined in the following manner ‑‑ During the cross‑examination, Mst. Fozia Begum, appellant was also suggested a specific question about the golden ornaments, who explained her position in the manner mentioned below.‑‑ The perusal of the above‑stated cross‑examination shows that the respondent was fully alive to the situation and has specifically questioned the correctness of the deposition of the witnesses, therefore, the argument of the learned counsel is devoid of force. I also find little force in this plea of the learned 7ounsel for the appellant that the appellant has amply proved the fact of cruelty and mental torture. I have carefully considered this aspect of the case. According to the appellant she lived with the respondent for a period of two months only. According to her, after one month of the marriage the respondent ill‑treated and ousted her from his house and once in the absence of her husband her father‑in‑law also tried to commit "Zina" with her but the above‑stated allegation did not find any support from the evidence. Muhammad Banaras, a witness for the appellant, has deposed that the appellant never made any complaint about the attempt of Zina by the father of the respondent. He further stated that he has never witnessed the ill‑treatment of the respondent with the appellant. Muhammad Ishaq, another witness for the appellant, has stated that he has not seen respondent while giving physically beating to the appellant. He has admitted that he has been arrayed at defendant in cross‑suit for restitution of conjugal rights presented by the respondent. It will be pertinent to note that both the witnesses belong to village Siya which according to them is situated 37‑40 miles away from the house of the respondent, therefore, they are not in a position to state anything about the physical ill‑treatment or cruel behaviour of the respondent with the appellant. The fact of mental torture or treating her with cruelty does not stand proved only on the basis of non‑appearance of the father of respondent to rebut the allegation of Zina. It is the basic principle of law that one who asserts must prove. In rebuttal, the A respondent and his witnesses have deposed that the appellant left the house of the respondent happily with her mother and the respondent never treated her with cruelty. My conclusion, therefore, is that the appellant has miserably failed to prove the fact of cruelty or mental torture. The next question, which requires consideration is that whether in case of not demanding the golden ornaments, the respondent is entitled to the restoration of benefits. It is admitted on the part of respondent that he did not demand the restoration of golden ornaments either to written statement of in his deposition before the Court. In such state of affairs, when the respondent has not put forward any demand for the restoration of benefits, the Family Court was not empowered to order the same. It is admitted position of law that during the proceedings of a case for dissolution of marriage on the ground of `Khula", if the husband does not make any demand for restoration of the benefits, he is not entitled, for the same. My this view finds support from a case titled Noor Muhammad v. Judge Family Court, Burewala, District Vehari and another PLD 1989 Lah. 31, wherein it was opined as under:‑‑ "Be the above as it may, learned trial Judge has remarked about the defendant merely that he has not raised any objection and thereby he presumably meant that the defendant has not made any demand about Zar‑e‑Khula'. It is correct that the defendant -petitioner did not at all make any demand in the written statement despite his duty to, if he so wanted, have specifically claimed during the trial to be paid the consideration for Khula'. The making of a demand for such a payment is left to the pleasure of a husband and since there is no legal obligation on him to, in all events, claim some consideration for Khula' which may even not have to be thrust upon him by the Qazi and he has the option to also forego it, therefore, 'if he has. the desire to all take some consideration then it is only reasonable to expect of him to not merely make a specific demand for being paid a desired consideration from the lady for separation by Khula' but he has also to be insistent in making such a demand and if he does not put forward an unequivocal claim for such a payment being made to him, the natural inference will be that he does not want to take it and his failure to insist upon being paid the consideration may legitimately be equated with either his desire to not claim any consideration at all or his intention to forego the same even if same may be found to be really payable to him." The same view was affirmed in a case titled Muhammad Sadiq v. Mst. Bashiran and others 1991 CLC 1647 in the following manner:‑‑ "Mr. Nusrat Javed Bajwa, the learned counsel for the petitioner, has argued that while granting Khula to respondent No.1 it was incumbent upon the lower Appellate Court to have determined Zar‑e‑Khula' and in the absence of any such determination, the judgment and decree of the Additional District Judge is not sustainable. Although in the written statement filed by the petitioner he has categorically asserted that respondent No.1, has taken away some golden ornaments and a sum of Rs.2,000 but there was no demand by him either in the written statement or in his statement as D.W.1 for restoration or these benefits. In these circumstance the Additional District Judge, was correct to observing that no benefits are to be restored by respondent No. 1 (see Noor Muhammad v. Judge, Family Court, Burewala District Vehari and another PLD 1989 Lah. 31)." It, therefore, follows that the respondent has foregone the restoration of benefits, thus, he is not entitled to any Zar- s-Khula'. The trial Court has passed the impugned decree on the basis of Khula' which has not been challenged by the respondent, therefore, the impugned decision and decree have attained finality to the extent of respondent. As Stated earlier, the respondent has not put forward any claim for payment of the golden ornaments worth Rs.48,808 which were paid in lieu of dower, therefore, is not entitled to receive any consideration. The nutshell of the above discussion is that accept this appeal and set aside the impugned decision and decree, dated 11‑5‑2002 to the extent that the respondent is not entitled for the restoration of golden ornaments worth Rs.48,

808. However, a decree for the dissolution of marriage in favour of the appellant, against the respondent on ground of `Khula" is maintained. No order as to costs. H.B.T./2/Sh.C.(AJ&K) Order accordingly.