P L D 1959 (W (PLP)

(3‑A) Whether the plaintiff has without any reasonable cause failed to fulfil his marital obligations for over three years ? (O. P. D.) (3‑B) Whether the plaintiff is keeping another wife with him and is guilty of inequal treatment between his co‑wives ? (O. P. D.) (4) Relief. .

4. On issue No. 1 the learned trial Court held that the story of the beating was a mere concoction and had no truth in it. He did not believe the evidence of the defendants' witnesses. In the alternative, the learned trial Court held that even if one beating incident was proved, it would not affect much, because one beating did not fall within the definition of "habitual beating," nor would it amount to cruelty.

5. On issue No. 2 he said that not a word had been said in the evidence with regard to this issue and it, therefore automatically stood unproved.

6. Discussing issue No. 3, the learned trial Court held that the plaintiff's witnesses were not reliable, and therefore, the plaintiff had failed to substantiate it, and hence it was decided in the negative.

7. On issue No: 3‑A he held that as he had not believed the evidence of the defendants' witnesses in regard to issue No. 1, there was no reason to believe their contradictory evidence on this issue.

8. On issue No. 3‑B the learned trial Court said that the defendant had not alleged or deposed as to how the treatment of the plaintiff towards her as compared with the second wife was inequal. The plaintiff was granted a decree for restitution of conjugal rights as against defendant No.

1. The suit as against the remaining defendants was, however, dismissed. The parties were left to bear their own costs.

9. On appeal, the learned District Judge Shahpur, without discussing the evidence, dismissed the appeal with costs.

10. Defendant No. 1 (Mst. Malkhan Bibi) has come up on second appeal to this Court.

11. The first objection which has been taken by the learned counsel for the appellant is that the judgment of the learned District Judge cannot be called a judgment within the terms of Order XLI, rule 31, Civil P. C. Under this provision of law, the judgment of an Appellate Court must state, (1) the points for determination, (2) the decision thereon, (3) the reasons for the decision, and (4) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

12. In the instant case, the learned lower Appellate Court reproduced the issues and then disposed of the appeal by writing the following short order :‑ "(3) The parties produced four witnesses each, and themselves went into the witness‑box as the last witness for each side. (4) The lower Court decided the issues Nos. 1 and 2 against the defendant‑appellant, the issue No. 3 against the plaintiff- respondent, issues Nos. 3‑A and 3‑B against the defendant -appellant, and passed the decree for restitution of conjugal rights against Mst. Mulkhan appellant and stated above. (5) Sher Muhammad, Dost Muhammad and Muhammad Ramzan (D. Ws. 1 to 3) have made contradictory statements with regard to the time of beating administered by the respondent to the appellant. Anyhow only one beating is alleged by the appellant (D. W. 4) and one beating is not enough to establish cruelty on the part of the respondent. (6) The appellant remained inaccessible to the respondent, so the latter cannot be blamed for non‑fulfilment of marital obliga tions. Likewise the appellant did not live as a wife with the respondent, so the question of inequal treatment between the co‑wives by the respondent does not arise. (7) I see no force in this appeal and dismiss the appeal with costs."

13. The learned lower Appellate Court did not discuss the evidence produced by the plaintiff, nor did he discuss the so- called contradictory evidence given by the three witnesses pro duced by defendant No.

1. He also did not take the trouble of discussing issue No. 2 with regard to the dower which the defen dant alleged had not been paid to her.

14. It is a well‑established principle of law that a finding of a District Judge will be regarded as conclusive when it is shown that the District Judge, has discussed the evidence led by the parties and had brought to bear on the issues framed in the case an independent mind. The mere statement that he found that the statements made by the different witnesses were contradictory will not be enough unless the alleged contradictions arc separately set out in the judgment and the decision given when such contradic tions adversely affect the case of the party producing such witnesses. Again, on issue No. 3‑B, the decision is that the question of inequal treatment of the co‑wives by the respondent did arise because the appellant did not live as a wife with the respondent. Learned lower Appellate Court should have gone into this question a little more exhaustively. A wife may not be living with her husband on account of inequal treatment or while living apart the husband may be bound to mete to her equal treatment. The"': are questions which require determination in suits of this nature The judgment of the learned lower Appellate Court, thus suffers from inherent defects and the conclusions arrived at by him cannot be regarded by this Court as conclusive.

15. The learned counsel for the appellant has emphatically argued that the onus of issue No. 2 was wrongly placed. The learned counsel for the respondent does not deny this proposition, and very rightly, because the onus of the payment, discharge, or satisfaction of the dower without which no Muslim marriage is complete, is always on the person alleging such payment discharge or satisfaction. The fact of the payment is within the knowledge of the person making it, and therefore, he must prove; it by positive evidence.

16. The learned counsel for the respondent has, however, urged that at this stage of the case, the fact that the onus of roof was wrongly placed should not make any material difference and the case should be decided on the evidence produced. No doubt it has consistently been held by the High Court that where the parties have led their entire evidence on a certain issue, then the fact that the burden of proof was wrongly placed should not make any great difference in appeal, but then this proposition of law will not apply to cases where no evidence has been led by the parties at all and the question which has to be determined is as to which party should lose. In such cases, the placing of the onus will make material difference. In the present case, although it was stated by Mst. Malkhan Bibi in her written statement that the dower was not paid to her and an issue was framed upon this point, yet the parties did not lead any evidence at all. Consequently, no decision on the true perspective of the case could be given on it. I am, therefore, constrained to recast issue No. 2 in the following terms:‑ "Whether the plaintiff has paid the dower‑amount to Mst. Malkhan Bibi, and is, therefore, entitled to an unconditional decree ? (O. P. P.)

17. I also feel that the burden of issue No. 3‑B has also been wrongly placed on the defendant. There is no doubt that the plaintiff has got another wife living with him by the name of Mst. Waziran, whom he married after marrying the appellant. Now, regard being had to the common course of natural events and human conduct, the plaintiff cannot be expected to treat both the wives precisely on equal basis. The presumption will be that Mst. Waziran, being the plaintiff's second wife, was being treated by him better than his first wife, the defendant. The burden of proving that he was treating both the wives equally should have been placed upon the plaintiff. It is the party who asserts a positive fact who should be called upon to prove his assertions and not the party who denies that fact. 1t is easier to prove positive than to prove negative. Decree for the restitution of conjugal rights is one which is in the discretion of the Court to grant and the plaintiff must prove' in order to entitle him to such a decree that he has come to the Court with clean hands, and in order to show that, it is for him to prove that he has paid the dower and has been treating his two wives on equal footing. If be fails to do so, then he is not entitled to the discretion being exercised in his favour. I, consequently, frame issue No. 3‑B as under:

"Whether the plaintiff has been treating both his wives on equal footing, and is therefore entitled to the decree of restitu tion of conjugal rights ? (O. P. P.)

18. For the reasons given above, I accept this appeal, set aside the judgments and decrees of the two Courts below, and remand the case under section 151, Civil Procedure Code, to the trial Court, for trial de novo in the light of the observations made in this judgment. The costs shall be costs in the cause. K. B. A. Appeal accepted: Case remanded.