P L D 2000 Lahore 359 (PLP)

Brief facts of this Writ Petition are that the respondent No. l filed a suit for dissolution of marriage on the grounds of cruelty, non‑maintenance 'and charge of adultery. The defendant resisted the suit and on pleadings of parties following issues, were formulated:‑‑‑ (i) Whether the defendant has treated the plaintiff with habitual cruelty? OPP. (ii) Whether the defendant has failed to provide her maintenance allowance? OPP. (iii) Whether the defendant has developed immense hatred against the plaintiff? OPP. (iv) Whether the defendant has levelled false charges of adultery against the plaintiff? OPP, (v) Whether the plaintiff is entitled to decree for dissolution of marriage? OPP. (vi) Relief. Learned Judge Family Court vide judgment and decree dated 21‑1‑2000 decreed the suit of the respondent No.1 /plaintiff hence, the present writ petition.

2. Learned counsel for the petitioner argued that the learned Judge Family Court has decided Issues Nos. 1, 2 and‑ 4 against the plaintiff/respondent No. l while decided Issue No.3 in favour of the plaintiff/respondent No. l observing that the plaintiff in her examination‑in‑ chief has shown extreme hatred against the defendant that she will prefer to die instead of living with the defendant, therefore, the parties cannot live within the limits ordained by Allah Almighty. Learned counsel for the petitioner has averred in para. 3 of the writ petition that on the instigation of certain people, the respondent No. l left the house of the petitioner and started living with a stranger at M.B. Din and after separation of 3 months instituted suit for dissolution of marriage on the grounds of cruelty, non maintenance and charge of adultery. He argued that judgment and decree dated 21‑1‑2004 is contrary to law and Islamic Principles. The version of respondent that she has developed hatred against the petitioner is unjustified and contrary to Islamic Law as she has levelled many allegations, against the petitioner/defendant and those allegations were found to be wrong and baseless. Moreover, there was no material evidence available before the Court to prove that the parties cannot live as husband and wife. The learned Family Court has ignored the fact that the respondent No. l while filing suit for dissolution of marriage was not living with her parents or any other relative, therefore, the Court shall have take note of it. `

3. I have heard the teamed counsel for the petitioner and carefully perused the record. Respondent No. l/plaintiff appeared as P.W.1, in her cross‑examination she has stated that the defendant maltreated her while she was staying in his house and he used to subject her to physical torture himself and also by others. He was addicted and also levelled allegations of adultery against her and after period of 2‑1/2 years he has expelled her from his house and not maintained her and she has not taken any benefit from him and has developed extreme aversion against him and there is no point left in living with the defendant and if she is forcibly compelled to go to his house, she will take poison and die. In her cross‑examination, she stated that the defendant is addicted to "Chars" outside and inside the house in cigarettes and used to subject her to physical torture by others and he has illicit relations with one Mst. Naziian and has levelled the allegations of adultery upon her with boy of one Bhono and boy of Tarvi at present she is living with her maternal‑auntee in Mandi Bahauddin and is earning her livelihood by doing work in people houses. She had a brother in jail and the other is younger and father is old and cannot work. She categorically denied that the defendant has not levelled the allegation of adultery on her and she had brought gold ring, ear‑ring and one chain. D.W.l is defendant, who has stated that the plaintiff lived lit his house for 5 years, out of wedlock a. female child was born who died, she was living in his private house and while going from his house had taken gold ornaments worth 5 tolas and has refused to perform matrimonial relationship with him. He has denied that he has subjected her to cruelty and that he has relationship with other woman. However, he stated in his evidence that she was abducted by Muhammad Asghar and that she has taken away ornaments. D.W.2 is Manzoor Ahmad in support of defendant he stated in his cross‑examination that he has not seen the plaintiff in his house. That he once went to her house for compromise but could not meet her.

4. From the perusal of evidence it is established that defendant has levelled allegations of adultery while he has stated in para. 3 of the writ petition that the plaintiff started living with a stranger at M.B. Din and in his cross‑examination that she was abducted by one Muhammad Asgher. Such an allegation is not permitted by law of land and also by Qur'anic Injunctions unless strictest proof and strong evidence is brought forward by the party levelling allegations. Whenever such an allegation is levelled against a lady, the Courts below must ask for the strictest proof of such allegation in view of the common dignity and respect of women in Islam and when such proof is not available on record by the person who is levelling the accusation besides giving an action per se to the aggrieved person, the Courts are bound to dissolve the marriage on this score. In his cross‑examination defendant has categorically stated that she was abducted by Muhammad Aghar, but he has not produced any evidence in this respect neither any proof of abduction case against the plaintiff or so‑called Muhammad Asghar. Even he has boldly stated in written statement that she was living in a house of a man at M.B. Din but he has not brought forward any concrete and positive evidence in this respect to make the Court believe that such an allegation or accusation is justified, even D.W.2‑not saying any word about it.

5. In family matters it has become very common to put allegation of adultery on each other and this fact is so easily overlooked by Family Court when besides the law of land this country is governed by dictates of Holy Qur'an which says (SURAH NOOR): "When you heard it, why did the faithful, men and women, not think well of their own people and say: "this is an evident falsehood? Why did they not produce four witnesses? If they could not produce any witness, then they were surely lying in the sight of Allah." "24.17. Allah bids you never again to repeat the like, if you are true believers. Allah makes plain to you. His revelations. He is Wise. All‑knowing. Those who delight‑ in spreading slanders against the faithful shall be sternly punished in this life and in the next. Allah knows, but you do not. " The Family Court as held in "Muhammad Sarwar v. Sughran Bibi and others" (1996 MLD 1057) "while hearing suits under the West Pakistan Family Courts Act (XXXV of 1964) acts as a "Court" not as a "persona designata". There is inherent jurisdiction, which vests in every Court to pass orders as may become necessary in the circumstances of given case.

6. If a husband charges his wife with adultery, wife is entitled to claim judicial divorce without any prejudice to her right to bring defamatory suit for unjust imprecations (Mahomedan Law, page 126). The husband is required to substantiate his accusation of adultery by producing four witnesses, but if no evidence except himself is available, he can take an oath on li'an, if the wife declines and also takes oath, the Judge must separate 8 them as the sexual union has become unlawful and under such circumstances the decree of divorce cannot be avoided by the husband by his retraction of the charge Rahiman v. Fazil (1927 Allahabad 56), (98 Indian Cases 576) and (1929 Nagpur 262). It is held in Ahmad Suleman Vohra v. Bai Fatima (1955 Bombay 160) and (1929 07jdh 16) that no chance of retraction would be .allowed to the husband. Retraction would amount to acknowledgement by the husband and so he can be punished for it.

7. Therefore, the Family Court has inherent power not only to dissolve the marriage where the allegation of. adultery is existing and such imprecation are unsupported by strong evidence by the person who alleges the same but it can also penalize the person who is levelling the allegation of adultery without proof or throwing mud upon the character of his wife by way of flimsy accusation without bringing forth any solid proof in evidence, burdening him to heavy cost and grant the compensation to the injured lady in view of her sacred right of reputation protected by the dictates of Holy Qur' an. .

8. Therefore, viewing Issue No.3 coupled with Issue No.4, I do not find any substance to interfere in the finding on Issue No.3 and also reverse the finding of learned Family Court on Issue No.4, regarding levelling of false charge of adultery against the plaintiff. Instant writ petition is dismissed in limine, being without substance. H.B.T./M‑87/L Petition dismissed.