P L D 2004 Peshawar 213 (PLP)

QAZI EHSANULLAH QURESHI, J.

Mst. Saadia Begum petitioner herein has moved the instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:- "It is therefore respectfully prayed that by accepting this writ petition the judgment/order and decree dated 29-6-2002 of the respondent No 3 and 19-2-2003 of respondent No 4 may kindly be graciously set aside and a decree for the dissolution of marriage, dower maintenance and dowry articles or (its market value) may, kindly be granted in favour of the plaintiff petitioner.'

2. Short narrated facts of the case are that Mst. Saadia plaintiff petitioner has filed a suit against her husband Jangreez defendant/respondent No. 1 and Lal Muhammad alias Laley her father in law defendant/respondent No 2 for dissolution of her marriage, recovery of dower i.e. one and a half tolas of golden ornaments. or Rs.10,000 equal to the value of the golden ornaments and portion in the house situated in Mohallah Hussain Khan Korona Shabqadar to the extent of respondent No 1 share, maintenance of Rs 20,000 for the period of 20 months at the rate of Rs.1,000 per month prior to the institution of the suit till its decision plus Iddat period and she also claimed maintenance for her minor child at the rate of Rs.1,000 per month up to his age of majority, education and marriage etc besides Rs.50,000 equal to value of dower the defendant husband has also filed a suit for conjugal rights against the plaintiff wife.

3. Both the suits were contested and written statement filed. Evidence pro and contra was recorded and after hearing the learned counsel for the parties the learned Judge Family Court, Shabqadar vide: his consolidated judgment and decree dated 29-6-2002, granted a decree for dissolution of marriage in favour of the plaintiff-petitioner on the ground of Khula' against defendant/respondent No.1 while her prayers for dower, dowry and maintenance were dismissed. Maintenance decree: was granted for her minor child at the rate of Rs.500 per month from the institution of the suit till his majority or the custody of the minor through guardianship of the father, However, the suit of the defendant-husband for conjugal rights was dismissed.

4. Feeling aggrieved of the above judgment of the trial Court, the plaintiff-petitioner preferred an appeal before the Appellate Court which was dismissed by the learned Additional District Judge-III, Charsadda vide his judgment and decree dated 19-2-2003,hence this petition.

5. Learned counsel for the petitioner argued that judgments and decrees of the learned subordinate Courts below in toto contrary to the evidence on record. The learned trail Court was not vested with powers to waive off the demand of dower, maintenance and dowry 'articles anti pass a decree for dissolution of marriage on the basis of Khula' of its own when the petitioner prayed for dissolution of marriage on the ground of cruelty. He in this respect invited our attention to the evidence which according to him was entirely ignored and overlooked by the Courts below. He further submitted that both the Courts below have not given issue-wise judgment and had failed to apply the golden principles of appreciation of evidence and reached, to a wrong conclusions thereby termed the impugned judgments as mala fide, highly discriminatory and against facts, law and justice.

6. The learned counsel for the respondent-husband on the other hand defended the impugned judgments and submitted that the marriage was dissolved on the ground of Khula' as prayed for. She in her plaint and statement stated that if the dissolution of marriage is not possible on the available grounds it may be dissolved on Khula'. Since she failed to establish the ground of cruelty and physical beating in her evidence the trial Court rightly granted dissolution decree on the ground of Khula'. As to the share of the house in lieu of dower he advanced that the house in occupation of respondent No. 1 neither owned by respondent No. 1 nor by his father respondent No.2 so when the house in question is not owned by respondents Nos. 1 and 2, how its share can be transferred in the name of the petitioner. He further added that the petitioner herself deserted the house of respondent No. 1 and she is not willing to reside with respondent No. 1, so she cannot claim any maintenance. As to the dowry it is submitted that it is an exaggerated list not proved through cogent evidence. Similarly the dower in the shape of golden ornaments had already been given to the petitioner at the time of Rukhsati.

7. We have heard the learned counsel for the parties and have perused the record of the case with their able assistance.

8. Mst. Saadia petitioner in her evidence as P.W.1 levelled the charge against the respondent No.1 that he is cruel. always quarrel and beat her physically. She was ousted twice by respondent No.1 from his house. She after marriage remained with respondent No.1 performed marital obligation as a result of which one child has taken birth who is now about two years. Respondent No.1 never paid maintenance to her nor for her child, at her parents house nor the respondents bothered to, make any efforts to bring the petitioner back to their house and reconciliate the matter once for all. Dower is still due against respondent No.

1. She has also charged respondent No. 1 that he has kept a boy for immoral purpose. She in her support produced P.W.2, P.W.3 and P.W.4 who confirmed her deposition. Some of the relevant crucial facts are also admitted by respondent No.2 in his evidence. D.W.2 Lal Muhammad father of respondent No.1 had admitted in his cross examination that he had agreed to give her one and half tola golden ornaments to the petitioner and a portion of a house to the extent of respondent No.1 share in lieu of dower. He has also admitted that his son had relation with one boy Asfandyar. Further admitted that his grand son i.e. (son of respondent No. l) is living with the petitioner at the house of her parents for the last 8/10 months. He made his hectic efforts for payment of maintenance but she refused. As to the dowry he stated that one Charpai, four Chairs and one Takhtposh are still lying in his house.

9. Before reaching to a correct and just conclusion it will be appropriate to reproduce the relevant provisions for the grant of decree for dissolution of marriage as given in The Dissolution of Muslim Marriages Act, (VIII of 1939). "

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 grounds namely:- (i) .......................... (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (ii-A) that the husband has taken an additional wife in contravention of the provisions of Muslim Family Laws Ordinance, 1961; (iii) to (vii) (viii) that 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 women of evil repute or leads an infamous life, or ................. (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qur'an ...................

10. From the evidence produced it is quite indicative that the conduct of respondent No.1 was such which definitely falls within the ambit of section 2 (viii) (a), (b) and (f) of the Act ibid he had contracted second marriage and not treating the petitioner equally made her life, miserable, subjected her to mental torture and agony and also failed to maintain her besides the allegation of keeping a boy as admitted by DW.2 which is a height of cruelty. Accumulating the above factors it is proved beyond any shadow of doubt that the conduct and demeanour of respondent No. 1 attracts the above provisions of section 2 of the Dissolution of Muslim Marriages Act (VIII of 1939). Still the learned trial Courts below hesitated to grant the decree for dissolution of her marriage straightaway despite ground of cruelty was elaborately taken in the plaint supported by evidence, so by not doing so, the petitioner was deprived of other benefits, which she under the law was entitled i.e. Dower, Dowry and maintenance.

11. Dower deed was executed between the parties as Exh.PW1/1 that she will be given one and half tola golden ornaments and a portion of house to the extent of share of respondent No. 1 in the house in their occupation in lieu of dower.

12. So far the golden ornament weighing one and a half tola is concerned, the petitioner in her cross examination admitted that In view of above statement by the petitioner it is at best established that golden ornaments were given to her at the time of Rukhsati and thereafter snatched or taken back, So this portion of dower is out of jurisdiction of Family Court as she had admitted the receipt of golden ornaments. However, she may for that matter sue the respondents for recovery in the competent Court of jurisdiction. As to the portion in the house to the extent of share falling to respondent No.1 evidence transpires that the respondent No.2 own no house. The house in their occupation is the property of some Khan of the area but the respondents are otherwise bound by their commitment/agreement made at the time of marriage, so they are under bounden duty to compensate the petitioner on any cost in the shape of cash amount.

13. About the maintenance it has come on record that it is not paid and respondent No.2 admitted that they tried to pay but it was refused. However, the period claimed by the petitioner has not been satisfactorily proved from the evidence, so it is to be taken from the evidence of the defendants-respondents. Respondent No.2 while appearing as DW-2 admitted that the petitioner is residing in the house of the parents for the last 8/10 months. Prior to that she once returned to the house of respondent No.1 on the intervention of Jirga but again left the house. So accepting the statement of DW-2 it is at least proved that she has not received the maintenance for the last 8/ 10, month.

14. As to the dowry articles except list annexed with the plaint there is nothing solid on record in support of the list of dowry articles Respondent No.2 however, admitted the dowry articles i.e. one Charpai, four chairs and one Takhatposh.

15. Resultantly this writ petition is allowed, the judgments and decrees of both the Courts are set aside and the petitioner is granted decree of dower, dowry and maintenance besides dissolution as per detailed below:-- (i) Dower: Portion in the occupied house to the extent of share falling to respondent No. 1 or its price equal to the said share which should be determined by the Executing Court by appointing a Local Commission. (ii) Dowry Articles: One Charpai, Four Chairs and one Takhatposh which are lying, in the house of respondent No.2 as admitted or cash amount equal to the value to be determined by the Local Commissioner. (iii) Maintenance Allowance: The petitioner is also entitled for amount of maintenance for the period of ten months prior to the institution of the suit till the; dissolution of marriage by the trial Court dated 29-6-2002 plus period of Iddat at the rate of Rs.1000 per month for herself and Rs.500 per month for her minor subject to enhancement with the passage of time keeping in view the age and education expenses till he resides with the petitioner or his age of majority. H.B.T.148/P Petition allowed.