P L D 2019 Supreme Court (AJ&K) 21 (PLP)

GHULAM MUSTAFA MUGHAL, J-The captioned appeals by leave of the Court arise out of the one and same judgment dated 1.3.2018 passed by the Shariat Appellate Bench of the Azad Jammu and Kashmir High Court in Appeals Nos. 46, 47 and 48 of 2018.

2. The facts necessary for disposal of the captioned appeals are that Najma Aziz, respondent, herein, filed different suits before the Senior Civil Judge/Family Court, Kotli against the defendant-appellant, herein. The first suit was filed on 13.3.2015 for dissolution of marriage. It was claimed that the plaintiff was married to defendant No.1 on 24.5.2013 in accordance with Sharia. It was pleaded that after the marriage it transpired that the defendant is habitually addict and also not enjoying good character. He also used to assault the plaintiff physically. The plaintiff tried to bear all this situation and also apprised his father-in-law and other intimates of the house about the conduct of the defendant but they have not redressed her grievance. It was stated that the plaintiff is an educated lady and is serving in NRSP and receiving Rs.25000/- per month as a salary, but due to torture and mal-treatment of the defendant, she is forced to leave the house of her husband. It was averred that defendant No.1, assaulted her in the bazaar and started beating her. The incident was reported to the Police and a case under section 253/14 was also registered at Police Station Kotli, which is subjudice before the Tehsil Criminal Court, Kotli. It was stated that another case vide F.I.R. No. 09/15 under section 11 of Prohibition (Enforcement of Hadd) Act was registered against the defendant. It was stated that the defendant has not paid single penny to the plaintiff as maintenance. It was claimed that the plaintiff has developed hatred towards defendant No.1 and cannot live with him within the limits ordained by Allah Almighty. The plaintiff claimed dissolution of marriage on the basis of cruelty and in alternative dissolution of marriage on the basis of Khula. The claim of the plaintiff was refuted by the defendant-appellant, herein. The second suit i.e. suit No. 14/15 was filed by respondent, herein, for recovery of dower on 11.4.2015 claiming therein that the dower was fixed at the time of Nikah as Rs.14,28,000/, out of which prompt dower was Rs.9,28,000/-, which was paid in shape of gold ornaments. It was stated that the defendant is out of country and has not paid the remaining amount of dower. The third suit was filed for recovery of dowry articles amounting to Rs.2,77,800/- on 21.5.2015 and the fourth one was filed on 18.4.2015 for payment of maintenance allowance. All the suits were contested by the defendant by filing written statement. A counter suit was filed by Faisal Mushtaq, appellant, herein, in the same Court on 1.12.2014 for restitution of conjugal rights on the ground that the defendant has left the house of the plaintiff without any justification and sufficient reason and he is willing to populate her but she has refused to accompany him. It was requested that a decree for restitution of conjugal rights may be awarded. This suit was also contested by Najma Aziz, respondent, herein, on identical grounds which has already been listed hereinabove. The learned Trial Court consolidated all the suits, framed issues and in light of the pleadings, directed the parties to lead evidence pro and contra. At the conclusion of the proceedings, the learned trial Court vide judgment and decree dated 30.12.2016 granted a decree of dissolution of marriage on the basis of Khula in lieu of dower amount Rs.9,28,000/- in favour of plaintiff-respondent, herein. The decree of recovery of dowry articles was also granted in favour of the plaintiff-respondent, herein. However, the suit for recovery of maintenance allowance was dismissed for want of proof. The counter suit filed by the appellant, herein, for restitution of conjugal rights was also dismissed in view of the judgment passed in suit No. 32/15 filed for dissolution of marriage. Feeling aggrieved from the judgment and decree passed by the learned Family Judge, Kotli, Najma Aziz, respondent, herein, went in different appeals before the Shariat Appellate Bench of the Azad Jammu and Kashmir High Court on 28.1.2017. After hearing the parties the learned Shariat Appellate Bench of the Azad Jammu and Kashmir High Court vide impugned judgment and decree dated 1.3.2018 accepted the appeals filed by Najma Aziz in the terms that the plaintiff is entitled to decree for dissolution of marriage on the bais of cruelty. A decree for remaining dower Rs.5,00,000/- was also awarded in her favour, however, the appeal for maintenance allowance was dismissed. Against the said judgment of the learned Shariat Appellate Bench of the Azad Jammu and Kashmir High Court, Faisal Mushtaq, appellant, herein, has filed the captioned appeals.

3. Sardar Muhammad Raziq Khan, the learned Advocate appearing for the appellant, argued that it was amply proved from the record that the relation between the spouses became strained and they cannot live as husband and wife within the limits ordained by Allah Almighty and the learned Family Judge has rightly passed the decree of dissolution of marriage on the ground of Khula. The learned Advocate argued that the learned Shariat Appellate Bench of the High Court while handing down the impugned judgment has misread the material evidence i.e. the registration of the case against the appellant, herein, and the conduct of the respondent-plaintiff as she willfully left the home of her husband without permission and also went abroad in England and Dubbai without accompanying any male member within prohibitory degree. The learned Advocate argued that the plaintiff has deposed all the privileged communication of the husband to one Sheeraz, P.W. who has no relationship with her and he is the responsible person for differences between the spouses. The learned Advocate argued that the plaintiff-respondent, herein, did not appear before the Court in support of the allegation levelled in the plaint, therefore, the decree for dissolution of marriage on the basis of cruelty was not justified.

4. Conversely, Mr. Abdul Razzaq Chaudhry, the learned Advocate appearing for the respondent argued with vehemence that proving the physical assault by husband is not required for passing the decree for dissolution of marriage on the ground of cruelty. The learned Advocate argued that it is settled law that the cruelty can be gathered from the conduct and treatment of the husband and his family members where a wife is living in joint family. He argued that it is nowhere laid down that the husband should beat the wife physically. The learned Advocate further argued that in this case the husband has not paid maintenance allowance to his wife and has also not provided her separate living. He argued that the respondent went abroad to live with his brother in Dubbi. The learned Advocate argued that non-appearance of respondent, herein, before the Court is not fatal because his father was his attorney who appeared before the Court and made statement in support of the plaint. The learned Advocate argued that the judgment passed by the learned Shariat Appellate Bench of the High Court is in accordance with law and hardly requires any interference by this Court.

5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of the record reveals that the plaintiff-respondent, herein, filed different suits i.e. suit for dissolution of marriage on the basis of cruelty/Khula; suit for recovery of dower; suit for recovery of maintenance allowance and dowry articles. The appellant, herein, also filed a suit for restitution of conjugal rights. The learned Family Judge provided an opportunity of leading evidence to the parties. The learned trial Court while dealing with issue No. 1, which is a crucial issue, came to the conclusion that the plaintiff has not proved any coercion/cruelty as was claimed by her in the plaint. It was also observed by the learned trial Court that the witnesses produced by the plaintiff do admits during the course of cross-examination that the plaintiff went abroad without permission of the husband and she also filed suits through her attorney. She did not appear before the trial Court for getting her statement recorded for proving the alleged facts. We are of the opinion that though in the case before the Family Court an authorized agent or attorney can plead on behalf of the plaintiff or defendant but when severe allegation was levelled against the husband or wife which can only be rebutted by their evidence then it is the obligation of the husband or wife, as the case may be, to appear as a witness in support of the pleadings so that the allegation can easily be judged by the Court. In the case reported as Muhammad Sharif Khan v. Mst. Ismat Bibi and 4 others PLD 1982 SC(AJ&K) 76 while dealing with the identical proposition, this Court in paragraph No.17 of the report has held as under:- "

17. The appellant, who is expected to know the whole controversy, has also not cared to come into the witness-box. It is the bounden duty of a party who personally knows the whole of the circumstances of the case to go into the witness-box to dispel the suspicions attaching to his case, and if he, being present in the Court, fails to do so (as is done in the present case), his non-appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case." As stated above in the present case the father of the plaintiff-respondent, herein, did appear but on the basis of his statement the allegation levelled against the defendant/ husband cannot be said to have been proved. The learned Family Judge assessed the evidence and drew a very reasonable conclusion. The modification of the judgment by the learned Shariat Appellate Bench of the High Court, in the circumstances of the case and in view of the conduct of respondent, herein, was not at all justified. In view of the above, we accept the appeals, set aside the impugned judgment dated 1.3.2018 passed by the learned Shariat Appellate Bench of the Azad Jammu and Kashmir High Court and restore the consolidated judgment and decree dated 30-12-2016 passed by the learned Senior Civil Judge/Judge Family Court Kotli in all the suits. AG/34/SC(AJ&K) Appeal allowe