P L D 2020 High Court (AJ&K) 1 (PLP)

RAJA SAJJAD AHMAD KHAH, J.

Since both the captioned appeals arise out of common judgment passed by Senior Civil Judge empowered as Judge Family Court, Mirpur, therefore, these are being consolidated and will be disposed of through this single judgment.

2. Brief facts, forming background of the instant appeals are that plaintiffs Sumaira Majeed and another filed two suits, one for recovery of maintenance allowance and second for dissolution of marriage on the grounds of non-payment of maintenance and non-performing of marital obligations and cruelty, before Senior Civil Judge empowered as Judge Family Court, Mirpur wherein it was averred that the Nikah of plaintiff Sumaira Majeed was solemnized on 03.11.2005 in lieu of dower in shape of 81/2 tolas gold ornaments and Rs.1000/-. It was further averred that during settlement the defendant treated her with cruelty and he declared that he does not like her and wants to marry with his cousin who was already living in his house. After that he turned the plaintiff from his house in June, 2008 and contracted second marriage with his cousin namely Nighat. The spouses had a daughter aged 14 month in possession of plaintiff who was snatched by defendant and was returned on the interference of Monitoring Cell of Hon'ble Supreme Court in 2007. During settlement the defendant did not provide maintenance allowance in-spite of written agreement regarding payment of maintenance allowance. After his contracting second marriage the plaintiff and her parents requested him for payment of maintenance or divorce but he refused and is enjoying happy life with his second wife while he deserted her and deprived the plaintiffs from maintenance allowance. The plaintiffs prayed for maintenance of herself and her daughter and also sought dissolution of marriage.

3. Defendant on appearance before the Court denied the averments raised in the suits by filing written statement and also filed suit for restitution of conjugal rights wherein he stated that plaintiff has no cause of action, during settlement, defendant provided her all facilities and looked after in spite of his limited sources, he never quarreled with her, she went to the house of her parents in March, 2011 and lived there according to her free will and did not return back to his house, he also provided maintenance allowance to her and minor regularly, he is a teacher by profession and got low salary of Rs.15/16,000/-per month who tried his best to settle her, therefore, the suits are liable to dismissed.

4. The trial Court consolidated all the suits and framed seven issues and after recording the evidence vide impugned judgment dated, 06.06.2015 passed decree of dissolution of marriage on the ground of non-payment of maintenance in favour of plaintiff Sumaira Majeed while dismissed her suit for recovery of maintenance allowance, however, passed a decree of maintenance allowance to the extent of minor plaintiff-appellant No.1 (Talia Chaudhary) at the rate of Rs.4,000/-per month from 29.11.2011 till decision of the suit and future maintenance allowance till her legal entitlement, whereas suit of the defendant for restitution of conjugal rights was dismissed, hence these appeals.

5. Miss Ghazala Haider Lodhi, the learned counsel for Talia Chaudhary and another plaintiffs-appellants, contended that the Court below committed grave error while fixing meager amount maintenance allowance of minor and dismissing the suit of plaintiff No.2 for recovery of maintenance allowance, because the appellants have proved their claim through cogent evidence. He further submitted that learned Judge Family Court has not appreciated the evidence in its true perspective and did not apply his judicial mind. The trial Court also committed grave error while refusing payment of maintenance of Iddat period to the plaintiff No.2, therefore, by modifying the impugned judgment, decree of maintenance allowance of desertion period and maintenance of Iddat period to the extent of plaintiff-appellant No.2 may be passed while maintenance of minor plaintiff-appellant No.1 be enhanced.

6. Conversely, Ch. Mohammad Ashraf Ayyaz and Zaheer Ahmad, the learned counsel for the defendant-respondent, submitted that the court below wrongly passed the decree of dissolution of marriage on the ground of non-maintenance and dismissed the suit of restitution of conjugal rights by not applying its judicial mind. They further argued that Court below did not consider the financial position of defendant and passed a decree of heavy amount of maintenance allowance. The learned counsel lastly prayed for passing of the decree of restitution of conjugal rights and dismissal of appeal of the plaintiffs-appellants and placed reliance on 2002 CLC 1450, 2015 YLR 170 and 2012 MLD 1394.

7. I have heard the learned counsel for the parties and gone through the record of the case.

8. According to the Dissolution of Muslim Marriages Act, 1939, a woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the grounds mentioned in section 2 of the Act. I feel it proper to reproduce the said section, which reads as under:-

2. Grounds for decree for dissolution of marriage:--A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely;-- (i) That the whereabouts of the husband have not been known for a period of four years; (ii) That the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii) That the husband has been sentenced to imprisonment for a period of seven years or upward; (iv) That the husband has failed to perform, without reasonable cause his marital obligations for a period of three years; (v) That the husband was impotent at the time of the marriage and continuous to be so; (vi) That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii) That she, having been given in marriage by her father or other guardian before she attained the age of sixteen years; Repudiated the marriage before attaining the age of eighteen years; Provided that the marriage has not been consummated; (viii) that the husband treats her with cruelty, that is to say, (a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or (b) Associates with woman of evil repute or lead an infamous life, or (c) Attempts to force her to an immoral life,or (d) Disposes of her property or prevents her exercising her legal rights over it, or (e) Obstructs her in the observance of her religious profession or practice, or (f) If he has more wives then one, does not treat her equitably in accordance with the injunctions of the Quran; A bare reading of Section 2 reproduced hereinabove shows that a woman married under the Muslim Law is entitled to obtain a decree for dissolution of marriage on all the grounds or any one of the grounds laid down in the section. Under clause A of ground (ii), if the husband has neglected or has failed to provide for her maintenance for a period of two years; or that the husband has failed to perform, without reasonable cause his marital obligations for a period of three years then the wife is entitled for decree of dissolution of marriage.

9. In instant case the stance of the plaintiff is that she has been deserted since January, 2008, neither appellant-defendant provided maintenance allowance nor any effort for her settlement was made and in the meanwhile he contracted second marriage while claim of defendant is that she remained settle with him till March, 2011 and she went to her parents house according to her free will. The Court below partly entitled her to maintenance allowance from 29.11.2011 and declared that from date of institution of suit till date of decision, two years has been completed and dissolved the marriage on the ground of non-maintenance. In order to obtain a decree under clause (ii) of section of Dissolution of Muslim Marriage Act, a wife has to prove that husband failed to provide her maintenance during two year immediately preceding the suit. In the instant case the plaintiff failed to establish her claim for non-maintenance for the period of two years before institution of suit. The learned Judge Family Court fell in error while passing the decree on the ground of non-maintenance, however, she succeeded in proving the allegation of cruelty through cogent and convincing evidence as witnesses produced by her deposed that relations between the spouses became hostile and defendant snatched the female child from the plaintiff who was returned to her from his possession on the interference of Monitoring Cell of Hon'ble Supreme Court. Thereafter the parties entered into compromise, however, dispute between the parties was cousin of defendant namely Nighat who used to live in the house of defendant and later he contracted marriage with her. It is clear from the evidence especially from the statement of plaintiff Sumaira Majeed that defendant created such circumstances in which she lost her confidence upon him which forced her to abandon the house of her husband, resultantly she left the house in March, 2011 while defendant married with his cousin in June, 2011. Since then she along with her female child has been living in the house of her parents and during this period the defendant has not made any effort or arrangement to take her back to his house nor he provide her maintenance. The plaintiff filed the suit on 29.11.2011 while defendant filed the suit for restitution of conjugal rights on 07.03.2014 which also clearly shows that he is not interested to settle her, therefore, the allegation levelled by the plaintiff amounts to mental torture and cruelty. It is useful to reproduce the relevant portion of statement of plaintiff:- The statement of plaintiff was supported by statement of witnesses. The examination-in-chief of the plaintiff was not cross-examined upon specific portion, therefore, statement of plaintiff had to be admitted correct.

10. A perusal of record shows that wife has proved that she was treated with cruelty and her life was made miserable by the behavior and conduct of her husband. The conduct of husband which render life of wife miserable amounts to cruelty. Section 2 of (viii)(a) of the Dissolution of Muslim Marriages Act, 1939 makes it clear that it is not necessary that there shall be physical ill-treatment rather the cruel conduct and cruel treatment is a valid ground for dissolution of marriage. Cruelty by conduct and behavior of a spouse also justifies the grant of divorce. It was observed in a reported judgmsnt titled Mohammad Sabil Khan and antoher v. Saima Inshad [2014 SCR 718] which is as under:- "It is also celebrated principle of law that for proof of cruelty, it is not necessary that physical assault or injury is required to be proved rather sometimes, the conduct and behaviors without physical assault has also been treated by the Courts as cruelty. Even the mental torture and suffered by the wife due to behaviors of her husband can also be treated as cruelty." It was further observed by Hon'ble Supreme Court in a case reported as Syed Imtiaz Hussain Shah and another v. Mst.Razia Begum & 3 others [2011 SCR 233] observed as under:- "The arguments advanced on behalf of the appellant that the factor of cruelty is not proved because none of the witnesses stated that he has witnessed any sign of injury caused by the appellant on the person of the respondent. Such an argument is itself indicative of the cruel mentality. For proof of cruelty, infliction of injury is not required by law. In matrimonial matter, the Court have been treated false, allegation against a wife to be a cruelty which results into mental torture and loss of mutual confidence."

11. So far as the question of maintenance allowance of plaintiff No.1 is concerned. The plaintiff claimed that she is entitled for maintenance allowance from June, 2008. She and her witness Abdur Rashid, deposed that she was deserted since 2008, however, her father namely Abdul Majeed admitted in his statement that plaintiff was deserted in March, 2011. Even the defendant and his witnesses namely Talib Naqashbandi and Mehmood admitted that since March, 2011 maintenance was not provided. The plaintiff also deposed that he turned her out from the house because of his cousin Nighat and he also contracted second marriage with her. After contracting second marriage despite demand he neither provided any maintenance allowance to the plaintiff nor contacted with her. The parties remained in litigation for the last 8 years. Thus the plaintiff succeeded in proving her claim of maintenance from March, 2011 not from 2008 along with Iddat period. It is settled law by now that husband is duty bound to pay maintenance allowance to the wife till she is faithful to husband and lives with him and when the wife successfully proves that she is forced to abandon the house of her husband then she is entitled for maintenance charges. Reliance can be placed on a case reported as 2016 YLR 371 and 2015 YLR 170 therefore, she is entitled for maintenance allowance from March, 2011 while according to the Sharia law husband is bound to pay the maintenance of Iddat period to his wife after dissolution of marriage. In such circumstance the learned Judge Family Court committed serious legal error while dismissing her suit for recovery of maintenance and maintenance of Iddat period.

12. So far as the case for enhancement of maintenance allowance of minor plaintiff No.1 is concerned. It is admitted fact that the plaintiff-appellant No.1 Talia Choudhary, is real daughter of the defendant-respondent who is getting education from the educational institution. The plaintiff-appellant proved her claim that she is under education and in light of inflation she cannot afford the expenses of school and other daily items from fixed amount of maintenance allowance. A Court has power to increase or decrease the maintenance allowance according to the financial position of father and keeping in view of the rate of inflation in the country and increase of demands of the minor with the passage of time. The learned trial court fixed Rs.4,000/- per month of maintenance allowance without an annual increment, so, keeping the expenditures of minor in terms of education, clothes, food and other necessary daily items etc and rate of inflation and financial position of the father, who is a teacher and can provide expenditures of his daughter, it is in the interest of justice to save the minor from knocking the door of Court again and again praying for enhancement of maintenance which is too difficult, the maintenance allowance of minor is liable to be enhanced from Rs.4,000/-to Rs.6000 along with 10% annual increment from the date of judgment. Upshot of the above discussion is that I accept the appeal of the plaintiffs-appellants and pass the decree of maintenance allowance in favour of plaintiff No.2 at the rate of Rs.4,000/-per month along with maintenance allowance of Iddat period at the rate of Rs.4,000/-per month and enhance the maintenance allowance of plaintiff-appellant No.1 from Rs.4,000/- to Rs.6,000/- along with 10% annual increment from the date of decision of her appeal whereas by modifying the impugned judgment, decree of dissolution of marriage on the ground of maintenance allowance is converted into decree for dissolution of marriage on the ground of cruelty, consequently the appeal filed by defendant-appellant having no force is hereby dismissed with no order as to costs. ZC/39/HC(AJ&K) Order accordingl