2022 PLP 638 (YLR)

KH. MUHAMMAD NASIM, J.

The titled appeal by leave of the Court has been directed against the consolidated judgment and decree dated 03.10.2018, passed by the Shariat Appellate Bench of the High Court in Family Appeals Nos.15, 16, 17 and 18 of 2017.

2. The facts of the case briefly stated are that Salma Mehmood, plaintiff/ respondent, herein, filed three suits; first, for dissolution of marriage; second, for recovery of dower; and the third, for recovery of maintenance allowance in the Court of Additional District Judge empowered as Judge Family Court Rawalakot on 19.11.2015. It was contended that the marriage between the parties was solemnized on 30.03.2012, in lieu of dower amounting to Rs.2,50,000/- out of which Rs.31,000/- was prompt which was paid in shape of gold ornaments at the time of Nikah, whereas, the rest of the same amounting to Rs.2,19,000/- was deferred. It was claimed that defendant No.2 stood surety/ guarantor for payment of the dower but the same is outstanding as yet. It was stated that initially the behavior of the defendant remained cordial towards the plaintiff but later he became cruel to her and he use to torture her both physically and mentally. It was further claimed that a necklace worth Rs.21000/- was snatched by the defendants from the plaintiff and on demand they ousted her from the home of the husband in November, 2015, along with her minor daughter. It was alleged that since then the plaintiff is living with her parents and not a single penny for maintenance has been paid to her and her daughter by the defendant. It was prayed that the marriage of the parties may be dissolved and decree for recovery of the dower amounting to Rs.2,40,000/-, maintenance allowance at the rate of Rs.5000/- each per month from November, 2015, may be granted. The suits were contested by the other side and refuted the claim of the plaintiff. Farhan Farooq, defendant/appellant, herein, also filed a counter suit for restitution of conjugal rights on 16.01.2016 before the same Court which was also contested by the other side by filing written statement. The learned trial Court framed issues in light of the pleadings of the parties and asked them to lead evidence in support of their respective stand. After necessary proceedings, the learned trial Court vide judginent and decree dated 27.07.2017, decreed the suit for dissolution of marriage on the ground of cruelty and non-payment of the maintenance allowance. The suit for recovery of dower amounting to Rs.2,19,000/- as well as the suit for recovery of maintenance allowance at the rate of Rs.3000/- each per month from November, 2015, was also decreed, whereas, the counter suit filed by the appellant, herein, was dismissed. Feeling aggrieved, the appellant, herein, filed four appeals before the Shariat Appellate Bench of the High Court on 23.08.2017. The learned Shariat Appellate Bench of the High Court after hearing the parties through the impugned consolidated judgment dated 03.10.2018, has dismissed the appeals filed by the appellant which is the subject matter of the captioned appeal.

3. The learned counsel for the appellant, Raja Shujaat Ali Khan, Advocate, argued the case at some length and stated that the respondent, herein, has willfully left the home of her husband and this fact is admitted in the evidence. The learned counsel for the appellant further argued that under law the wife who leaves the house of her husband willfully is not a deserted wife and is not entitled to any maintenance allowance. The learned Judge Family Court has passed the judgment without appreciating the evidence produced by the appellant and the learned Shariat Appellate Bench of the High Court has illegally maintained the same. The learned counsel for the appellant further stated that cruelty and non-maintenance was not proved, therefore, the decree for dissolution of marriage on the ground of cruelty could not have been granted in favour of the respondent, herein. The learned counsel lastly prayed for acceptance of the appeal.

4. While controverting the arguments advanced by the learned counsel for the appellant, Sardar Abdul Sammie Khan, Advocate, the learned counsel for the respondent, defended the impugned judgments of the Courts below and stated that the same are perfect and legal. The concurrent findings of fact recorded by the Courts below cannot be disturbed until and unless it is shown that the same are perverse, capricious and suffer from misreading and non-reading of the record. The learned counsel referred to and relied upon the cases reported as Muhammad Muneer and another v. Naveeda Khalid (2019 SCR 394), Mst. Amreen v. Muhammad Kabir (2015 YLR 170) and Syed Shabir Shah Gillani v. Imtiaz Ahmed Abbasi and 5 others (2014 SCR 418), in support of his version and prayed for dismissal of the appeal.

5. We have considered the arguments of the learned counsel for the parties and perused the record made available. A perusal of the record reveals that the respondent, herein, filed three suits; first, for dissolution of marriage; the second, for recovery of dower; and the third, for recovery of maintenance allowance. The appellant, herein, also filed a counter suit for restitution of conjugal rights. All the suits were consolidated by the learned Family Judge and vide judgment and decrees dated 27.07.2017, decreed the suit for dissolution of marriage on the ground of cruelty and non-payment of maintenance allowance. The suit for recovery of dower amounting to Rs.219000/- as well as the suit for recovery of maintenance allowance at the rate of Rs.3000/- each per month from November, 2015, was also decreed, whereas, the counter suit filed by the appellant, herein, was dismissed. The appellant, herein, filed four appeals in the Shariat Appellate Bench of the High Court on 23.08.2017, which were dismissed vide impugned consolidated judgment dated 03.10.2018.

6. The main thrust of the arguments of the learned counsel for the appellant is that the respondent, herein, has failed to prove the fact of cruelty. She voluntarily left the home of her husband, therefore, she is not entitled to any maintenance charges. The Family Court as well as the learned Shariat Appellate Bench of the High Court failed to consider this important aspect of the case. The Courts below have committed misreading and non-reading of the evidence. We have carefully considered the argument of the learned counsel for the appellant, Farhan Farooq. Although, it is not the duty of this Court to scrutinize the evidence but for our own satisfaction that as to whether any misreading or non-reading of evidence has been committed by the Courts below, we have gone through the whole evidence produced by the parties and have come to the conclusion that there is no misreading or non-reading of the evidence. We would like to reproduce the relevant portion of the statement of the respondent i.e. Salma Mehmood, which is as under:- Likewise, the appellant himself appeared before the trial Court as witness and got recorded his statement. The relevant portion of the statement is reproduced as under:- A perusal of the above reproduced statements of the parties clearly shows that the stance of the learned counsel for the appellant that the respondent has willfully left the house of her husband, has no substance.

7. So far as the argument of the learned counsel for the appellant that the respondent has failed to prove the fact of cruelty is concerned, it is settled principle of law that the cruelty is not confined to physical torture. Even the cruel attitude is not confined only to the extent of physical violence, it includes the mental torture, hateful attitude of husband or other inmates of the house and also include other circumstances, in presence of which, the wife is forced to abandon the house of her husband. In this regard, reliance is placed on the case reported as Mst. Amreen v. Muhammad Kabir (2015 YLR 170), wherein, this Court has observed in para 15 of the judgment as under:- "

15. The common question of law involved in the appeals is that if a wife voluntarily abandons the house of the husband without any reason, whether she is entitled for maintenance charges or not. It may be observed that it is the basic duty of the husband and he is bound to maintain his wife. Section 272 of Mohammdan Law by Mullah provides that husband is bound to maintain his wife so long she is faithful to him and obeys reasonable orders but he is not bound to maintain a wife who refuses herself to him or otherwise disobeys. The refusal or disobedience is justified if dower is not paid or she is forced to live with her husband despite cruelty. Section 278 postulates that if a husband refuses to maintain his wife, she may sue for maintenance. It is the duty of a Muslim wife to perform her part of obligation and then to claim maintenance. The husband may refuse to maintain his wife when she refuses to live with him and if a wife refuses to live in the house of her husband and not ready to perform her part of duty and denies to live with him as his wife, she is not entitled for maintenance. But in case, where cruelty to her is established and circumstances created by the husband or in the house of husband are such that the wife cannot live there peacefully and she has to abandon his house. When wife successfully proves that she is forced to abandon the house of her husband then she is entitled for maintenance charges. The question whether the wife has voluntarily left the house of her husband or she was ousted from the house or she was forced to leave the house due to cruel attitude has to be decided on the basis of evidence. The cruel attitude is not confined only to the extent of physical violence, it includes the mental torture, hateful attitude of husband or other inmates of the house and also includes other circumstances, in presence of which the wife is forced to abandon the house of her husband..." The appellant could not succeed to point out any misreading or non-reading of evidence. The findings of facts concurrently recorded by the Courts below cannot be disturbed until and unless a case of non-reading or misreading of evidence is made out or gross illegality is shown to have been committed while appreciating the evidence. In our estimation, both the Courts below have evaluated the evidence in a legal manner and recorded the concurrent findings on fact which cannot be disturbed by this Court. This proposition came under consideration of this Court in the case reported as Muhammad Muneer and another v. Naveeda Khalid (2019 SCR 394), wherein, it has been observed as under:- ".....Despite this admission, the evidence has been recorded and the trial Court has passed the decree after due appreciation of evidence, whereas, in fact, in view of above reproduced admission in the pleadings, even no evidence was required. In this state of affairs, the judgments passed by the courts below are quite in accordance with law, thus, the concurrently recorded judgments on question of facts do not call for any interference." Similarly, in another case reported as Kamal Hussain v. M. Shabir and others 2017 SCR 236, while dealing with the same proposition, this Court has observed as under:- " The defendant-appellant could not succeed to point out any misreading or non-reading of evidence, therefore, the findings of facts concurrently recorded by the Courts below cannot be disturbed or interfered with merely on the strength of the argument which does not find support from the law or record." In view of the above, finding no force in this appeal, the same is, hereby, dismissed with no order as to costs. SA/21/SC(AJ&K) Appeal dismissed.