2009 PLP 1210 (CLC)

GHULAM MOHY-UD-DIN MALIK, J.

This writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is filed against the judgment and decree of learned Judge Family Court dated 24-10-2008 whereby decree for dissolution of marriage was passed in favour of Mst. Amber Liaqat respondent No.1 against Malik Tanveer Khan, the petitioner.

2. We have heard the arguments of learned counsel for the parties and have perused the record.

3. Briefly stated facts of the instant case are that marriage ceremony between the parties took place on 20-1-2006. The petitioner was serving in Pak Army' as Lieutenant, therefore, he took the respondent to Quetta at the place of his posting where after a short time of their living together, differences cropped up between the spouses and consequently she returned back to parents' home in Abbottabad. She filed suit for dissolution of marriage, recovery of dower amounting to Rs.2,20,000, maintenance allowance w.e.f. 11-6-2006 till decree and period of Iddat in case of dissolution of marriage. She also sought decree for return of dowry articles or in the alternative for their price amounting to Rs.5,35,

000. She in her plaint stated that she during her stay with petitioner in Quetta learnt that he was involved in homosexuality. She made protest and exactly on time requested him to mend his way but he did not care; that lastly the allegations became in public, inquiry was conducted against him by the Army and consequently his services were terminated. In these circumstances as he was leading infamous life, she preferred to get the decree for dissolution of marriage.

4. On the other hand petitioner pleaded that as a matter of fact she is a prude, disobedient, irresponsible lady. During her stay with him he observed and noticed that she was receiving phone calls of unknown people so he admonished her to behave but she did not care. Since the parties were at variance, therefore, they were put to trial after framing necessary issues arising out of their pleadings. Consequently on conclusion of trial the learned trial Court decreed the suit of respondent as prayed for and at the same time through the consolidated judgment dismissed the suit of petitioner for restitution of conjugal rights.

5. The petitioner feeling aggrieved by the judgment and decree of family Court filed appeal under section 14 of the West. Pakistan Family Court Act, 1964 before District Judge, Abbottabad and against the dissolution of marriage has filed this writ petition.

6. Learned counsel for the petitioner submitted that the impugned judgment and decree of dissolution of marriage is the result of misreading and non-reading of evidence and is against the law on the subject. He went on to say that there was no evidence what-so-ever to believe that the petitioner was leading infamous life or he was involved in bad habits like homosexuality; that no cruelty on the part of petitioner was established as she was never maltreated by him nor she was beaten or ousted from the house but she left the house of the petitioner with mala fide intention and ulterior motive, as she was a defiled and not a virtuous lady. On the other hand learned counsel representing the respondent argued that finding of facts of learned Family Court cannot be interfered with in writ jurisdiction particularly when there is nothing to show that the trial Judge has misread or misunderstood the evidence and as such has come to wrong conclusions.

7. The perusal of record revealed that parties in support of their version produced evidence as they wished to adduce, pre and post trial reconciliation were made but failed. Consequently, the impugned decree was passed.

8. When appeared as P.W.2 she reiterated the same story as narrated in the plaint and charged him for leading infamous and immoral life. She stated that she had observed personally as well as learnt from the wives of other officers as his odious habits were talk of the town. P.W. Subedar Muhammad Sher of 24 Battalion (Al-Badar) Quetta appeared and produced the record pertaining to enquiry and confidential report regarding conduct of the petitioner seriously astonishing the officer cadre. The allegations are that petitioner during his stay used to share room with 2/3 other-ranks which was noticed during surprise visit of the senior officers .of the unit. There were allegations that he invited Captain Saqib and M. Tufail for commission of carnal intercourse with him and so in these circumstances on the conclusion he was sent on premature compulsory retirement. There is a letter of 8th June, 2006 addressed to respondent by Lt.-Col. (C.O.) Nasir Mahmood, (Annexure A), which reads as tinder: Persopal/Confd. 24 FF (Al-Badar) Quetta Cantonment Tel Mil 1615/A 8 May, 2006 To PA-38999 Lt. Malik. Tanveer Khan Sub; Wng Offr (Recordable) (1) It has been observed with great concern that you have been found involved in immoral activities with your under comd which is not at all expected from an offr. (2) Your shameful conduct is seriously tarnishing the image of offr's cadre and unit as well. You are hereby strictly warned to refrain from such activities in future, failing which, you will be liable for very strict disciplinary action. (3) You are instr to sign six copies of the wng and return the same by 1400 hrs 8th May, 2006. (Sd.) Lt. Col CO (Nasir Mahmood)." Yet, there is another copy of "Confidential Conduct report" submitted to Headquarters 61 Brigade, by Commanding Officer, Nasir Mahmood which reads: Personal/Confidential 24" Battalion (Al-Badar) The Frontier Force Regiment, Quetta Cantonment Telephone Military 5361 Case Number PF/38999/A 17th December, 2006. To Headquarters 61 Brigade Subject:

Conduct/Behaviour-Officers (1) Subject report in respect of PA-38999 Lieutenant Malik Tanveer Khan of this unit is as under, please:

(a) Residing with other ranks in same room at Mock up village. The officer was detailed as Officer Commanding Takatu party on 17th January, 2006. After few days of his stay at Takatu, it was revealed that officer is sharing the room with 2/3 other ranks. The same fact was further confirmed by various visiting officers. His habit of sleeping with other ranks and compromising his privacy alarmed the unit and he was released from that duty and reverted to unit. (b) Taking Unit persons to his Bachelors Officers Quarters. The officer was frequently involved in taking other ranks to his Bachelor's Officers Quarters. Even individuals deputed on guard duties used to be picked up by the officer and taken to his residence/room. He used to ask other ranks to massage his body wearing a single short and later asking them to have sexual intercourse with him (the officer being passive). Having revealed the gravity of the situation, all persons of the unit were stopped to visit his room. (c) Activities-Unit Tea Bar. Having known the restrictions imposed on other ranks to visit his bachelor's Officers' Quarters, officer resorted to calling the individuals in unit tea bar at night for same methodology. (d) Activities at Zhob. The officer was detailed as Instructor with Anti-Terrorist Training Cadre run under arrangements 56 Punjab from 4 March to 7 April. During his stay at Zhob, the officer asked PA- 40504 Captain Saqib Ali's Non Combatant Bearers (NCB-Muhammad Tufail ex 27 Signal Battalion to massage his body. After getting the body massage, he asked Non Combatant Bearers (NCB) Muhammad Tufail to have sex with him (passive). The above mentioned Non Combatant Bearers (NCB) refused to fulfil his desire and reported the matter to PA40504 Captain Sagib Ali. The matter was later referred to Commanding Officer 56 Punjab who conducted a brief verbal inquiry and found even involvement of his own Non Combatant Bearers (NCB) Yasir Khan (discharged from service) (NCB being active). 56 Punjab immediately dispatched the Non Combatant Bearers (NCB) Yasir Khan back to 24 FF. Later on the officer was sent back to his unit, one week prior to the termination of Anti-Terrorist Training Cadre. (Sd.) Lieutenant Colonel Commanding Officer (Nasir Mahmood". Consequently he was retired from service. Thereafter he used to "impersonate himself as son of Lt.-Gen., some time as A.D.C. to President of Pak and consequently his entry was banned in all Military, Outfits and officers Mess, through a letter dated 5th November, 2007 issued by General Headquarters A.G's. Branch Rawalpindi

9. On the other hand, defendant as D.W.4 produced many certificates, medal etc. showing himself to be a best army officer. He stated that he had tendered resignation and was not sent home by force and denied the suggestion that he was compulsorily retired. He termed the allegations levelled against him as false and baseless. It is also a matter of record that once he appeared before a psychiatrist and according to the expert report he could not notice his inclination or-urge for homosexuality:

10. This is the gist of evidence adduced by the parties in support of their respective claims.

11. Keeping in view the allegations levelled against the petitioner by respondent-wife, let us have a look over concept of marriage and family in Islam. The Islam forbids sexual relationship outside marriage bond and considers it a grave offence against the society.

12. The marriage establishes a firm bond of love, confident, - affection and mutual trust, i.e. both of them built up marital life on the basis of mutual trust and understanding The Qur'an describes the relationship between the spouses as raiment worn to cover the body. It says: "They (women) are your garments and you (men) are their apparel". (2:187).

13. It means husband and wife are like body and garments to cover each other. This Ayyat signifies close relationship of the two sexes in the spiritual sense. Further it refers that they shall protect each other's privacy and covers each other's shortcomings and secrets and as such Islam condemns all acts of mistrust, allegations and disobedience of husband. She should be obedient and guardian of her husband. She should not become fault finder, malignant critic and carper rather should be conniving at his faults and should never stigmatize the husband on hear say information and she should try to make up gaiety and happy social life. In short a righteous woman guards the sanctity of the bond of marriage and protects her and husband's chastity and virtues, guards her honour for him and to be faithful to him. This also includes guarding secrets of husband because being in close contact she learns the most private and concealed facts of his life which if brought to public would disgrace and ruin his life. Thus in Islam it is binding upon the wife to guard secrets of her husband. 14: the Qur'an says, and guard in (the husband's) what God would have them guard" (4:34).

15. The sum and substance of the above discussion is that Muslim Family Law attaches great importance to the sanctity of marriage. It enjoins the Muslims to strengthen their relationship and make marriage success.

16. Anyhow, circumstances may arise as in the instant case that Mst. Amber wife of petitioner has disclosed the secrets about the private life of her husband charging him for leading a gay life, which was self evident, needing no exposition nor she was cavalier to blame husband, she in her view under compelling circumstances charged him that he was leading objectionable life, causing shame and insult in the society to her, therefore, she had applied for judicial separation. She had collected reasonable oral and documentary evidence from the parent department of the petitioner where he was proceeded against on charges as levelled by her against him and consequently his service was dispensed with by getting his resignation.

17. It is true that one of the primary ends of marriage is a happy companionship of the spouses. There can be no happiness when wife feels that by immoral and unbecoming conduct of husband her life has become miserable and intolerable by his infamous style of life. It would involve grave hardship to a sensitive wife if she is sent back to social life which has already been proved unsuccessful. The evidence led by both the parties shows that instead of love and affection there was misunderstanding, hatred ill-feeling between the spouses which has reached to a point of no return. Section 2(viii)(b) of Dissolution of Muslim Marriages Act, 1939 reads as under:-- "(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."

18. To prove that he was involved in homosexuality and was leading infamous life she had produced oral and documentary evidence in support of her version. The perusal of evidence particularly the official service record produced and exhibited by P.W. Subedar Muhammad Sher suggests that the charge is not altogether groundless. On the contrary, husband in his evidence deposed that the allegations were false and as a matter of fact she had affairs with strangers, therefore, she had tried to picking holes in his private life just to get Talaq otherwise her allegations were totally baseless. Further stated that he has tried his level best to convince 'her to behave and asked her time and again and also filed a suit for restitution of conjugal rights but she did not turn up.

19. Now, it is abundantly clear from the evidence on record that petitioner is persona non grata, for her, she has tried to prove cruelty by his conduct as in her estimation he was leading infamous and immoral life. The cruelty need not only be of a physical torture and beating etc. but it can be mental by conduct and reputation as well. The evidence on record suggests that she was not feeling easy and was considering her life miserable by conduct of his passing infamous life and to this effect she had produced both oral and documentary evidence. It is true that in some letters produced by the petitioner, the Commanding Officer of the Unit has shown some mercy and leniency in favour of petitioner but these letters carry little value because the sender did not make a statement in Court nor stood the test of cross-examination. A plea by the husband that her suit was based on mala fide and ulterior motive in the absence of evidence to that effect does not inspire confidence.

20. The gist of above discussion is that there is no gain saying the fact that she demonstrated beyond all possibility of contradiction while he did not rise to the occasion. The habits and conduct of the petitioner as explained in the evidence could be a mental cruelty in the worst if he was so open and known case of homosexuality in the society.

21. In these circumstances, keeping in view the incompatibility of temperaments, irreconcilable disposition or contradictory, mental, moral and emotional outlooks, dislikeness and hatred between the spouses, could be a valid ground for divorce under Muslim Laws.

22. Accordingly, considering this writ petition being meritless, we dismiss the same, with no order as to costs. H.B.T./146/P Petition dismissed.