2019 PLP 2046 (CLC)

CH. KHALID YOUSAF, J.

The captioned appeals have been filed against the impugned judgment and decrees passed by the Additional District Judge/Judge Family Court Muzaffarabad dated 31.10.2018, whereby the suit filed by the plaintiff-appellant herein for dissolution of marriage was decreed on basis of Khulla, suit for recovery of deferred dower amounting Rs.700000 was decreed in manners that plaintiff shall surrender the same in consideration of Khulla, suit for recovery of maintenance was dismissed whereas, the suit filed by the respondent herein for restitution of conjugal rights was also dismissed. As all the Appeals relate to the same parties, against the same judgment and decrees and having common question of facts and law, therefore, these are being consolidated and disposed of through this single judgment. The precise facts forming background of the instant appeals are that plaintiff-appellant herein filed suits; dissolution of marriage, recovery of maintenance allowance, and recovery of deferred dower before Judge, Family Court Muzaffarabad on 31.10.2018 stating therein that marriage between the spouses was solemnized on 08.03.2014, in lieu of Rs.1500000/- out of which Rs.800000/- was paid in shape of gold ornaments whereas Rs.700000/ was fixed as deferred dower. It is stated that the behaviour of defendant-respondent was remained pleasant for one month thereafter; the behaviour of the defendant-respondent was slowly varied and become harsh towards plaintiff-appellant herein. It is further stated that after two months of the marriage the defendant's mother has taken back the gold ornaments so that the whole dower is outstanding against the defendant-respondent. It is further stated that defendant and other inmates of the house beat, abused and ousted her from the house after three months of the marriage. It is further alleged that defendant failed to maintain her from 08-07-2014. Thereupon, plaintiff-appellant filed suits; for dissolution of marriage, recovery of maintenance, recovery of dower whereas the defendant-respondent Zeshan Shehzad, herein also filed suit for restitution of conjugal rights before Additional District Judge/Judge Family Court Muzaffarabad. On filing of the suits, both the parties were summoned, who contested the suits by filing the written statement pro and contra. The learned trial court framed issues in the light of their respective pleadings and directed the parties to lead evidence. The learned trial court while concluding the suit for dissolution of marriage decreed the suit on the basis of Khulla, suit for recovery of deferred dower amounting Rs.700000/- was decreed in manners that plaintiff shall surrender the same in consideration of Khulla, suit for recovery of maintenance was dismissed whereas, the suit filed by the respondent herein for restitution of conjugal rights was also dismissed hence, the instant appeals. Syed Ashfaq Hussain Kazmi, Advocate the learned counsel for the plaintiff-appellant contended that the learned Judge Family Court has misread and non-read the evidence. Learned counsel further contended that the ouster of the plaintiff-appellant was not wilful but it was due to cruelty and it has been proved by the plaintiff appellant through cogent and reliable evidence but the subordinate court failed to appreciate the evidence in its true perspective and dissolved the marriage on the basis of Khulla which is liable to be modified. Learned counsel further contended that gold ornaments were taken back by the defendant and this fact remained un-rebutted on record from the other side but Family Court has not considered this aspect of the case and dismissed the suit of the plaintiff-appellant. Learned counsel further averred that defendant-respondent and other inmates of the house maltreated and ousted her from the house and in this regard plaintiff-appellant's parents tried to settle the matter but remained in vain. Learned counsel further argued that plaintiff-appellant is well literate, M. Phil degree holder, has been performing job and earns salary of Rs. 65000/- per month and the defendant-respondent and other inmates forced her to abandon the job. So in this way the defendant-respondent and other inmates of the house mentally tortured her. Learned counsel further contended that defendant-respondent admitted in his statement that harsh exchange was taken place between the spouses due to her job. Lastly, prayed that by accepting the appeals the judgment and decrees may be set aside and decree for recovery of maintenance, recovery of dower may be passed in favour of plaintiff-appellant herein and the marriage may be dissolved on the basis of cruelty and non-payment of maintenance. While controverting the arguments of the learned counsel for the appellant Fazal Mahmood Baig, Advocate, the learned counsel for the defendant-respondent herein, contended that plaintiff-appellant herein already has taken the stance in Para No.8 of her plaint for dissolution of marriage that if the suit of plaintiff-appellant is not proved then marriage may be dissolved on the basis of Khulla and she failed to prove her case through cogent and reliable evidence therefore, the learned Family Judge has rightly passed the decree for dissolution of marriage on the basis of Khulla. Learned counsel further stressed that if the gold ornaments have been taken back then it was enjoined upon the plaintiff-appellant to produce witness before the Court but she failed to do so which negates the version of the plaintiff. Learned counsel further contended that plaintiff-appellant herein left the house of her husband with her own free will and consent therefore; she is not entitled for any maintenance allowance. Learned counsel contended that trial court did not commit any error of law and has rightly passed the judgment and decrees which hardly needs any interference by this Court. Lastly, prayed for dismissal of the appeals with costs. I have heard the learned counsel for the parties and gone through the record of the case with utmost care. Firstly, I would like to take up the appeal No.290 of 2018. Careful survey of record reveals that marriage between the spouses was solemnized on 8-3-2014 in lieu of dower Rs.1500000/- out of which Rs.800000 was paid in shape of gold ornaments whereas Rs.700000 was fixed as deferred dower. It further reflects that plaintiff-appellant is an educated lady and she has been doing job P&D Department as Research Officer and earns handsome salary and it is evident from the record that the defendant-respondent and other inmates of house forced her to abandon the job and this fact is also transpired from perusal of the suit for restitution of conjugal rights filed by the respondent herein so in this way the defendant-respondent mentally tortured plaintiff-appellant by forcing her to abandon the job which is her fundamental right. Our Constitution safeguard the fundamental rights of an individual. For better appreciation Article 4(4)(8) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is usefully reproduced as under; "Sec. 4(4)(8). Freedom of trade, business or profession;

Every State subject possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation shall have the right to enter upon any lawful profession or occupation, and to conduct and lawful trade or business; Provided that nothing in this paragraph shall prevent;- (a) .. (b) .. (c) ." Bare reading of the above reproduced provision of law clearly shows that Constitution guaranteed and safeguarded the fundamental rights of each individual in State of Azad Jammu and Kashmir, and a person can adopt any lawful profession or can carry on business no one can be allowed to force him or her to give up her profession or job unless and until it founds contrary to the Constitution or any law for the time being enforced. It is constitutionally guaranteed fundamental right of the plaintiff-appellant herein to choose her own employment or engage in any lawful profession/occupation or conduct lawful business. It is evident from record that the behaviour, of the respondent husband and other inmates of the house, is not proper towards plaintiff-appellant due to the service/job of the plaintiff-appellant herein and they forced the plaintiff to abandon the job. This fact is not only evident from the other record rather it is admitted by the defendant-respondent himself in his statement which is usefully reproduced as under; This fact has also been admitted by other defendant-respondent's witness Mir Afzaal Sulehria, who deposed that defendant's brother Khuram Shehzad asked plaintiff-appellant that if she leave the job then he will provide separate house along with Rs.50000/- per month. In such state of affairs I am of the opinion that the ouster of the plaintiff-appellant herein was due to attitude of the defendant-respondent and other inmates of his house who forced her to abandon her job which is her fundamental rights and in this way she suffered mental agony. It may not be out of place to mention here that if the plaintiff-appellant discontinues her service to comply with the husband and later on her husband divorces her then her career would be badly affected. The Hon'ble apex Court of the State held time and again that the cruelty is not confined only to the physical torture it includes the mental torture and hateful attitude of the husband and other inmates of the house. My this view finds support from the judgment reported as [2014 SCR 718] wherein it is held as under; "The term 'cruelty' with reference to the matrimonial matters is to be (sic) judged within the parameters of statutory provision of the section 2 of Dissolution of Muslim Marriages Act, 1939, which speaks of different kinds and natures of cruelty. The term 'cruelty' is not only confined to physical assault or infliction of physical injuries rather it being a comprehensive term as elaborated in the statutory provisions which includes all types of cruelty which may be classified as legal, mental and physical". The similar proposition is also held by the Hon'ble apex Court in a case law reported as 2015 SCR

621. The relevant portion is usefully reproduced as under: "The cruelty is not confined only 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 the husband or other inmates of the house also include other circumstances, in presence of which the wife is forced to abandon the house of her husband." So I am of the considered view that the Family Court fell in grave error of law while passing the impugned judgment and decree to the extent of dissolution of marriage on the basis of Khulla which is not maintainable, hence requires to be modified and same is hereby converted and dissolved on the basis of cruelty. So far as the matter of dower is concerned, perusal of record reveals that according to Nikahnama deferred dower was fixed Rs.700000/- and this fact has also been admitted by the defendant-respondent in her written statement in Para 4, hence needs no further deliberation. Now the question is that whether the defendant or other inmates of his house has taken back the prompt dower paid in shape of gold ornaments or not? Careful survey of evidence reveals that plaintiff-appellant miserably failed to bring on record anything from which this Court can ascertain that the prompt dower was taken back from the plaintiff-appellant herein. Therefore, the appeal to the extent of dower is partly accepted in the manners that defendant-respondent shall pay deferred dower amounting Rs.700000/- to plaintiff-appellant herein. So far as the matter to the extent of maintenance allowance is concerned, it has been proved that plaintiff-appellant's ouster was not wilful but the same was due to mental torture. So I am of the view that plaintiff-appellant is entitled to receive maintenance allowance from the date of institution of suit till decision of the suit. It is important to note here that while determining the maintenance allowance the Court has to consider the financial status of husband; maintenance should commensurate with the income of the husband as well as his other responsibilities. In the present case, it is evident from the record that the defendant-respondent herein has to perform his other liabilities as well so, keeping in view the financial condition of the defendant-respondent, it is ordered that defendant-respondent shall pay maintenance allowance of Rs.5000 per month to plaintiff-appellant from the date of institution of suit till decision i.e. 31-10-2018 and Rs.5000 per month for Iddat period. These appeals are disposed of in the manners indicated above. A copy of the judgment shall be annexed with other connected files. ZC/17/SH.C(AJ&K) Order accordingly.