2008 PLP 1692 (MLD)

KHAWAJA FAROOQ SAEED, J.

In these two writ petitions filed by the petitioner, the judgments and decrees of Judge Family Court, Rawalpindi and District Judge, Rawalpindi, dated 2-10-2006 and 12-4-2007 respectively are being challenged.

2. The brief facts are that the petitioner married the respondent No.2 on 11-5-2003. They remained together for 10 months, during which time she became pregnant. While, however, because of the maltreatment of the respondent No.2 she had a problem .in her abdomen which resulted in abortion in Poly Clinic Hospital, Islamabad, on 24-3-2004. Later, she was taken by her parents, while the respondent after the said desertion neither made any serious attempt nor paid her future maintenance.

3. The petitioner, therefore, inter alia claims that past maintenance @ Rs.2000 per month, 7 tolas gold ornaments valuing Rs.70,000 which were gifted to her by her husband at the time of solemnizing marriage and 2 tolas of gold ornaments given .by her parents may be granted to her.

4. In the first suit before the Judge Family Court, all the three claims were challenged while the respondent also filed a suit for restitution of conjugal rights. From the petitioner's side, the petitioner herself appeared as P.W. 1, Muhammad Hanif and Ali Asghar appeared as P.W.2 and P.W.3 respectively. Their affidavits are part of record as Exh. P.1. to Exh.P.3. From the respondent's side D.W.1 was respondent himself while one person namely Muhammad Abbas appeared as D.W.2.

5. Since entire discussion as well as decision from the two Courts is on the basis of the evidence produced by the witnesses, the same is discussed hereinafter.

6. From the petitioner's side the arguments have been started by referring statement of D.W.1. who inter alia admitted that his wife was pregnant and she had abortion. The statement also narrates that from the hospital the petitioner never went back to the house of her husband. He, however, contended that he is not a cruel person at all and that he had never punished or mishandled the petitioner. The petitioner's counsel then moved on the statement of the P. W.1 which .is at page 36, wherein she has stated that in the hospital, she obviously could not inform that it was because of the severe beating by her husband that she had to come to the hospital and had to undergo abortion. She admitted that her husband later made attempts to take her back, but since one of the uncle had informed her that the intention behind bringing her back is to burn her alive, she, therefore, never went back to the house of the respondent.

7. The respondent's counsel contend that all the evidence in fact is in favour of the respondent. It is clear from the statement of the P.W. and D.W.1 that the efforts to reconcile and a compromise again, remained in progress from the respondent's side during the entire desertion period and in fact it was the petitioner's attitude that the same did not succeed. He, however, was unable to convince as to how a wife can come back to husband when the maltreatment and punishment and severe beating from the respondent's side is evident. In fact the cruel behaviour is confirmed from the statement of P.W.2., who in his examination-in-chief has stated in clear terms that the respondent used to beat the petitioner habitually and he had asked him many times not to maltreat his wife. He also stated that in the month of March when he went to see them in their house, he came to know of the severe beating by respondent Babar to the petitioner. He claimed to have shown his apprehension of loss of the child because of his maltreatment which later proved to be as correct when he came to known that the petitioner was taken to Poly Clinic Hospital, Islamabad, where the abortion was carried out. He also stated that he went to the house of Babar for many times but it was because of Babar and his family that the reconciliation efforts could not materialize as they refused to take their daughter-in-law back to their house. In the cross-examination the said gentleman who is an independent witness again stated that it was on the request of the mother of the respondent that he did efforts for a. compromise but since he had no support from the respondent and his other family members it could not mature. He categorically stated that he had no political animosity against the respondent and also that his statement is not for the reason of relationship with the petitioner. He also categorically stated that the jewelry was with the respondent.

8. So far as the entertainment of this writ petition is concerned, it is true that under Article 199 of the Constitution of Islamic Republic, of Pakistan interference in such matters is not as a matter of right. This Court in a number of cases has held that the writ jurisdiction can be exercised if the subordinate Courts have not properly exercised their jurisdiction and the decision is for the reason of misreading or non-reading of the evidence. In other words illegal order can be interfered with and be set aside under writ jurisdiction. Reference can be made to the case of "(1) The Secretary to the Government of West Pakistan, Communication and Works Department v. Gulzar Muhammad" reported as (PLD 1969 Supreme Court 60).

9. Since in this case certain facts are evident. This Court feels that it is a fit case for interference. The issues were framed properly, however, the same have not been appreciated with back grounds of the facts of this case. The facts which are evident from the record as well as discussion of the two sides are:-- (1) that as per clause 17 of the Nikahnama, jewelry was given to the petitioner as gift; (2) that the petitioner was maltreated as a result of which she had to undergo for abortion; (3) that from Poly Clinic Hospital, she never went back to the house of her in-laws; (4) that the independent witness could not be dismantled even by the cross-examination established that it was more for the resistance by the respondent and his family that the reconciliation efforts could not succeed.

10. Obviously while going to hospital in emergency, one would never carry jewelry especially when it was practically a dangerous situation. Secondly independent witness also in clear and unequivocal terms said that the treatment of the respondent was harsh and that the jewelry was also with the respondent's family. The above facts being undeniable, the orders of two respondents were obviously not as per law and facts. Both the judgments are in total ignorance of the evidence, thus, a gross injustice has been caused as a result of the non-reading and misreading of the evidence.

11. This Court does not agree with the learned counsel for the respondent that the petitioner has not been deserted and she has left the husband at her option. The evidence also does not support his claim that the jewelry is still, with her. It is beyond comprehension that a lady who was under severe mental agony and was having pain in abdomen because of the beating by her husband, could care to carry her jewelry to the hospital. It was practically a matter of life and death for her. In such situation no one can consider of taking gold ornaments in the hospital. Here again even her parents were not informed of her admission in the hospital. Claiming that she carried the jewelry in such situation is beyond normal comprehension. It is also not the case of the respondent that she had carried the jewelry earlier and it was lying at some other place which also even otherwise is against the normal practice. Her statement during cross-examination also supports the observation of this Court. Furthermore, on one hand the respondent has been torturing her and on the other hand the claim is that it is not respondent who has deserted her but the petitioner itself opted to stay away. In fact this Court has held in (PLD 1969 Supreme Court 617) in case "Madan Gopal and 4 others v. Maran Bepari and 3 others" that the Family Court may or may not grant compensation while passing a decree on the basis of Khula. The right of Khula is not a conditional right. The learned counsel for the respondent, therefore, is not justified in saying that since the lady had left the place on her own, she is not entitled to maintenance. The fact of the case is that she went to her parents for a temporary phase after abortion which is normal, while, however, she was subsequently not allowed to come back to her abode by her husband or his parents. This Court, therefore, directs respondent No. 1 to give maintenance allowance to the petitioner @ Rs.2000 per month till the date of the judgment by the Judge Family Court. Since after said judgment, she opted not to perform her conjugal rights as a result of the decision of the Judge Family Court she shall not be entitled to any claim thereafter. Further, the respondent shall hand over the jewelry within 30 days from this order or pay Rs.90,000 as compensation of the same.

12. With this observation, the writ petition stands disposed of. H.B.T./S-58/L Order accordingly.