2004 PLP 984 (CLC)

KHAWAJA MUHAMMAD SAEED, J.

This appeal with leave of the Court is directed against the judgment of the Shariat Court passed on 18-5-2001, through which the appeal filed by the respondent was accepted and the suit filed by the appellant, herein, was dismissed.

2. The facts for the decision of this appeal briefly stated are that respondent Muhammad Asghar brought a suit for the restitution of conjugal rights against the present appellant before the Judge, Family Court, Mirpur on 4-2-1999, in which he contended that his marriage took place with the appellant on 13-11-1994 in lieu of Rs.1,00,000 dower. He claimed that Rs.50,000 was paid in cash at the time of Nikah ceremony of the parties besides ornaments worth Rs.28,996 to the respondent which are still in her possession. He further claimed that out of this wed-lock a daughter was born who is still alive. According to the suit of the respondent on 2-9-1998, the appellant went to attend a betrothal ceremony of her brother but did not come back to reside with him. He was, therefore, constrained to file the suit. 'The contents of the suit were refuted by the appellant who claimed that she has been divorced by her husband, the respondent, herein, as such he was not justified to file the suit for restitution of conjugal rights. She also filed a cross-suit for jactitation of marriage on 8-5-1999; in which she claimed that she was maltreated by her husband during the period she resided with him. She claimed that she was ousted from her house by her husband who later on divorced her. In his written statement the respondent herein, denied that he has divorced the appellant.

3. Keeping in view the averments of the pleadings of the parties following two issues were framed by the trial Court:-- (1) Where Muhammad Asghar, respondent has divorced his wife Mst. Parveen Akhtar; and (2) In case Issue No.1 is not proved affirmatively whether Muhammad Asghar respondent is entitled to a decree for restitution of conjugal rights against the appellant, herein.

4. On behalf of the plaintiff-respondent Sher Muhammad, Lal Hussain and Haji Muhammad Razzaq appeared as witnesses. The plaintiff-respondent also got his statement recorded on 2-3-2001. Sher Muhammad in his statement has stated that the marriage of the parties took place on 3-11-1994. According to him one lac rupees were fixed as dower. Out of the dower amount Rs.30,000 were paid in cash to the appellant whereas the remaining amount was paid on 12 or 13 January, 1997 to her. This witness has contradicted the suit of the respondent in toto, as according to this witness on 2-9-1998 the mother of the appellant came to the house of respondent and took the appellant with her in order to attend the betrothal ceremony of her son. He has admitted that he is maternal-uncle of respondent. He has stated that in his presence respondent never divorced appellant, his wife.

5. Lal Hussain the other witness has also stated that marriage of the parties took place on 3-11-1994, in lieu-of rupees one lac as dower and further stated that out of dower amount Rs.30,000 were paid at the time of "Nikah" whereas the remaining amount was paid to the respondent in the year 1997. According to him besides the dower amount the respondent had also given ornaments weighing six. Tolas to the appellant. He has admitted that a "Jirga" was convened in which the question of "Talaq" was raised. The respondent had disclosed in the "Jirga" that he never gave "Talaq" to his wife. According to him the relatives of respondent No. 1 were claiming that respondent has given "Talaq" to the appellant as such they will not send the appellant with him. The exact words used by this witness are:-- The other witness of the respondent, namely, Haji Muhammad Razaq has also stated that a "Panchayat" was convened in a mosque in which the brother of the respondent inquired from us as to whether anyone out of the members of "Panchayat" has sent any Talaq" in writing on behalf of respondent to the appellant. According to him all the persons who were present stated that they had not sent any such "Talaq Natna" to the appellant on behalf of the respondent. The respondent, herein admitted that a "Panchayat" was convened to decide the matter of Talaq the witnesses produced - by the respondent have given contradictory statements.

6. The appellant on the other hand -in her statement dated 27-3-2000 leas stated that she received " Talaq Nama" and a letter through her uncle Haji Muhammad Sharif. According to her Muhammad Asghar her ex-husband wanted to take her back to his house for this purpose a "Panchayat" was convened in which some religious scholars were also present who gave their opinion that as "Talaq" has taken place, therefore, the compromise cannot be effected between the spouses.

7. Her witness Abdul Qayyum has stated that "Talaq Nama" was given to Muhammad Sharif, the uncle of the appellant, who handed over "Talaq" papers to the father of the appellant. The inmates of the house of Bashir, the father of the appellant, were weeping that the appellant has been divorced. According to this witness before giving "Talaq" to the appellant the respondent told him that his wife is a bad character lady as such he will divorce her. He has also stated in examination-in-chief that the respondent told him that he has divorced hip wife. He has also stated that a "Panchayat" was convened to resolve" the question of "Talaq".

8. The other witness Muhammad Hussain has stated that in his presence the "Talaq" papers were given by Muhammad Sharif to the father of appellant. Muhammad Sharif told him that these papers have been given to him by Muhammad Asghar respondent. He has also stated that respondent Muhammad Asghar handed over "Talaq papers to Muhammad Sharif the uncle of the appellant, in his present According to him these papers were given perhaps on Thursday t Muhammad Sharif at 11 to 11-30 a. m. The Talaq papers were in an envelope as Muhammad Sharif was an illiterate person, therefore, some other person read out these papers to him. This witness further stated that in the "Panchayat" Muhammad Asghar admitted that he had divorced his wife.

9. Bashir Ahmed is another witness of the appellant who has stated that "Talaq" papers were given to Muhammad Sharif by the respondent. "Talaq Nama" which was exhibited as "D.A." during the statement of appellant on 27-3-2000 was shown to this witness. He admitted that these papers were given by Asghar to Muhammad Sharif. According to this witness the appellant was divorced by her husband.

10. In the light of this evidence the trial Court dismissed the suit of respondent and decreed the suit for jactitation of marriage of the appellant in her favour vide judgment and decree dated 8-11-2000. This judgment was assailed in appeal before the learned Shariat Court which reversed the judgment of the trial Court vide judgment, dated 18-5-2001, hence this appeal.

11. Mr. Liaqat Ali Khan, the learned counsel for the appellant, has argued that it is proved from the record that the appellant stood divorced by her husband prior to the filing of the suit by him seeking decree for restitution of conjugal rights from the Family Court. According to him the divorce-deed Exh.D.A. was tendered and proved in evidence. The appellant's case was that a forged thumb-impression has been affixed upon the same. For this purpose he had cited Muhammad Taj Head Constable, an Expert, but this witness was not later on produced by him. On account of this reason the trial Court has rightly drawn adverse inference against the respondent.

12. Mr. Muhammad Sharif Tariq, the learned counsel for the respondent, argued that the judgment of the trial Court was the result of misreading and non-reading of evidence. According -to him, the important witness in this case was Muhammad Sharif to whom according to the appellant, divorce papers were given by the respondent but this witness was not produced by the respondent. The learned Shariat Court, therefore, was justified in law in drawing adverse inference against the appellant. He further argued that the alleged divorce-deed has been written on a simple paper and it bears no date or signature of any witness, therefore, the same was illegally relied upon by the trial Court. According to the ,learned counsel, the respondent had denied the execution of this document, therefore, it was mandatory for the appellant to prove its execution through thumb7impression Expert.

13. We have considered the respective arguments of the learned counsel for the parties and have gone through the entire record of the case with their assistance. We have discussed in detail the evidence which was produced by the parties in this case. Admittedly it is not the requirement of law that divorce-deed should be written on a stamp paper. It was in the knowledge of the respondent, as is clear from the statements of his witnesses that the relatives of the appellant in "Panchayat' had denied .to return to him appellant mainly on the ground that she stood divorced by him. He, therefore, should have challenged the legality of this divorce-deed in his suit and prove the thumb-mark attributed to him as fabricated upon it. He rightly cited Head Constable Muhammad Taj, as his witness but later on through his statement, dated 2-3-2000 left this witness. The adverse inference in these circumstances was rightly drawn against him by the trial Court. The "Talaq Nama alongwith a letter was presented in the trial Court by the appellant. In the letter it is allegedly written by the respondent that the appellant was caught by him when she was involved in an adultery with Muhammad Sagheer and Muhammad Sajid. He had further written in the letter shat he was, therefore, constrained to pronounce "Talaq". The "Talaq Nama". was tendered, in evidence and got exhibited as "D.A." during the statement of the appellant. Two witnesses have stated that these papers were given in their presence to Muhammad Sharif the uncle of the appellant for delivery to the appellant by the respondent. In the light of this evidence the trial Court had no option but to dismiss the suit of conjugal rights of the respondent and decree the cross-suit of the appellant in her favour.

14. There is another fact which should not be lost sight of. The alleged "Talaq Nama" was given to the respondent on 24-9-1998. A decree for jactitation was allowed in favour of the appellant by the trial Court on 8-11-2000. The plaintiff-respondent brought his appeal before the Shariat Court on 5-12-2000. He failed to obtain order of suspension against decree, alongwith stay order from the Shariat Court against the appellant that she should not contract second marriage. He in his suit had clearly stated that the appellant wanted to contract second marriage with some other person. The respondent in his concise statement has stated that the appellant contracted second marriage on 24-11-2000. During the arguments the second, husband of the appellant stated in the Court that now she is the mother of a female child out of second wed-lock. In the light of these facts the appeal of the respondent had become infructuous before the Shariat Court. Even on merits the respondent has got no case. Therefore, while accepting this appeal the judgment of the Shariat Court is set aside. Consequently, the suit filed by the contesting respondent stands dismissed and the judgment recorded in favour of the appellant by the Judge, Family Court, Mirpur on 8-11-2000 stands restored. B.T./13/SC(AJ&K) Appeal accepted.