P L D 1955 Sind 378 (PLP)

INAMULLAH, J.--‑This is a suit for dissolution of marriage under the Dissolution of Muslim Marriages Act VIII of 1939. The dissolution of marriage was sought, as disclosed in the plaint, on the ground of cruelty and on the ground that the defendant had disposed of certain property of the plaintiff. The latter ground, however, has not been pressed by the learned advocate for the plaintiff. The facts, as stated in the plaint, shortly put are these: The plaintiff and the defendant were married under the Muhammadan Law on March 29, 1943 at Sitapur (U. P.). They lived together with intermittent periods of separation. It is alleged by the plaintiff that ever since the plaintiff was married to the defendant, he had been treating her with cruelty and has "on innumerable occasions assaulted her and beat her." The defendant, it is stated by the plaintiff, made her life miserable "both by cruelty of conduct and cruelty by beating." The plaintiff, in spite of the cruel conduct of the defend?ant, lived with him till 13th and 14th of August, 1952 when the defendant beat her "ruthlessly" and she was obliged to leave the house. After leaving the house of the defendant, she went over to Sir Abdur Rahim's house on Kutchery Road. The defendant came to the house of Sir Abdur Rahim and took her away and again beat her and threatened to kill her. It was also mentioned in the plaint that the defendant had deprived the plaintiff of her jewellery and other ornaments and the same had been mortgaged with Grindleys Bank Karachi. As I have already said, this fact was not pressed before me. The plaint was filed on 3rd October, 1952 and the written statement was filed on 23rd May, 1953. The defendant denied the contention of the plaintiff that he had been beating her or that he had deprived her of her ornaments. It was alleged in the written statement that the defendant had been paying money to the plaintiff and had been giving presents to her even after the filing of the suit. The contention between the parties gave rise to the following issues:‑ (1) Whether on or about the dates 16th of October, 1944, 10th of February, 1952, 21st of April, 1952, 13th and 14th of August, 1952, the defendant beat the plaintiff and other?wise maltreated her ? (2) Whether on or about the 13th or 14th of August, 1952 the plaintiff was taken out by the defendant from the house of the late Sir Abdur Rahim at the point of a Revolver and driven away in a car with the purpose of being done to death ? (3) Whether the defendant has, after his marriage to the plaintiff, been generally treating the plaintiff cruelty ? (4) Whether the defendant on or about December, 1951 deprived the plaintiff coercively of her jewellery and mort?gaged the same with the Grindleys Bank against the plain?tiff's wish ? (5) Is the plaintiff entitled to a dissolution of her marriage with the defendant ? My findings are as under :‑ Issues 1, 3 and 5 : in the affirmative. So far as issue No. 2 is concerned, my finding is that the plaintiff was taken away by the defendant from the house of late Sir Abdur Rahim on 14th of August, 1952.; but it is not proved that she was taken at the point of revolver with the object of being done to death. Issue No. 4 was not pressed by the plaintiff and it is decided in the negative. It would be convenient to decide issues, 1, 2, 3 and 5 together as they are inter‑related with each other. (After a discssion of evidence the judgment proceeded) Mr. Haleem, the learned advocate for the plaintiff has contended that the plaintiff seeks the dissolution of her marriage under section 2 (VIII) of the Dissolution of Muslim Marriages Act, 1939 which reads as under :‑ "When the husband treats his wife 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." He contended that the plaintiff has been able to prove that the defendant had been habitually assaulting her or at any rate had made her life miserable by cruelty of conduct. In this connection, I may also reproduce a paragraph from "Moham?medan Law by Amir Ali" page 522 5th Edition which enun?ciates the grounds on which a divorce may be obtained by a wife. "The wife has a right to apply for and obtain a divorce when the husband habitually insults her parents or her relations, or leads an infamous life, or associates with women of evil repute, or attempts to force her to lead an immoral life and to take up her abode with prostitutes, or introduces a concubine into the conjugal domicile, or threatens to kill the wife, or beats her, or disposes of her property, or makes her life miserable by cruelty of conduct, even when it does not amount to physical ill‑treatment." Another paragraph on the same page of the Muhammadan Law by Amir Ali is also profitable to be reproduced while considering the evidence of the plaintiff regarding cruelty. It runs thus:-- "A simple allegation of the wife, unsupported by independent testimony, is not sufficient in law to establish any of the charges above mentioned. When her statement is supported by the evidence of trustworthy witnesses or is corroborated by outward marks of cruelty, the Kazi has the power to grant her a separation." (The judgment further with the evidence and proceeded). Mr. Haleem, the learned advocate for the plaintiff, con?tended that the statement of the plaintiff coupled with the letters written by the defendant himself fully proves habitual beating on the part of the defendant. He relied on the case of Mst. Sofia Begum v. Syed Zaheer Hasan Rizvi (A I R 1947 All. 16). That was a case of restitution of conjugal rights by a Muhammadan husband. The wife pleaded legal cruelty on the part of the husband. A letter written by the wife to her father was adduced in evidence to establish the plea. The letter ran as follows :‑ "To‑day he‑the husband‑beat me very much. I could not stand this beating. It is better that I should consider myself a widow. I would rather live without such a husband. Please come at once and take me from here or I should come with somebody or step out of the house all by myself. You please come and take me. I want a judicial separation. As I am writing this letter I am weeping and shedding tears." It was held on the perusal of the above letter that the letter did not show an isolated beating ; but evidenced habi?tual beating on the part of the husband. The letter was held sufficient to establish the legal cruelty on the part of the husband. In the present case, the evidence is much stronger. The letter is written by the defendant himself and the words in Exh.8, dated 16th October, 1944 "ever in future" and the same words in Exh. 10, dated 21st April, 1952 would show that the defendant was given to habitual beating. (After further comments on evidence the judgment proceeded.) It was also contended by Mr. Fazlur Rehman, so far as the cruel conduct was concerned, relying on the case of Moonshee Buzloor Ruheem v. Shamsoon Nissa Begum and Jodanath Bose v. Shamsoon Nissa Begum (11 Moor's I A 551 at p. 610) that cruelly should be of a type as to endanger life. He contended that the obser?vation of the Privy Council would hold good in spite of the Kazmi Act. I do not agree with this contention of the learned advocate. The relevant portion of the Kazmi Act which is known as the Dissolution of Muslim Marriages Act 1939 reads as under :‑ "When the husband treats his wife with cruelty, that is to say, habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill‑treatment." The Dissolution of Muslim Marriages Act leaves no doubt that the observations of the Privy Council, in view of‑ 'the specific legislation, would have no application. As was observed by the House of Lords by Lord Halsbury L. C. in Quill v. Leathem (1901 L R 495 at p. 506) that : " A case is only an authority for what it actually decides." In that case before the Privy Council, the Muslim Marriages Act was not in question as the same did not exist. Their Lordships of the Privy Council in that case were only consi?dering the word "cruelty" and not the extensive language which we now find in Dissolution of Muslim Marriages Act, namely "Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill‑treatment." I have no doubt as was observed in the case of Mst. Sofia Begum (A I R 1947 Ail. 16.). "The rights of a Muhammadan wife have been greatly enlarged by the Dissolution of Muslim Marriages Act, 1939 (VIII of 1939) by which the Legislature has made a distinct endeavour to ameliorate the lot of the wife and in a suit for restitution of conjugal rights the Courts must appreciate the evidence and apply the law in consonance with the spirit of the legislature." I am of opinion that the connotation of the word "cruelty" has been now enlarged by Act VIII of 1939 and that the observations of the Privy Council would have no application in view of the present Legislation. It was also contended by Mr. Fazlur Rehman, the learned counsel for the defendant, that the cause of action mentioned by the plaintiff was that it arose on 14th August, 1952 when plaintiff was mercilessly beaten and was threatened of being killed. It was contended by Mr. Fazlur Rehman that the plaintiff has failed to prove the same and therefore, the suit should be dismissed. I have no doubt that the plaintiff was beaten on the 14th of August, 1952 and was also threatened to be killed. It is not surprising if the defendant had threaten? ed to kill the plaintiff when he visited her at the house of Sir Abdur Rahim in furious mood that he must have been. There is no force in this contention. It was also contended by Mr. Fazlur Rehman that the defendant had every right to chestise the plaintiff for dis?obedience and therefore even if the plaintiff has been able to prove that she has been beaten, it was within the right of the husband. Mr. Fazlur Rehman had again relied upon cert‑ain observation made in the case of Munshee Buzloor Ruheem (11 Moor's I A 550) that the husband can use personal violence against his wife. I may state here that in that case, their Lordships of the Privy Council did not give any definite finding of their own whether the husband was, under law, so entitled or not. They have only made a reference to "Hadaya." I would again repeat ripe observation of Lord Halsbury in the case of Quill v. Leathem 'that a case is only an authority for what it actually decides. In the case of Munshee Buzloor Ruheem, their Lord? ships of the PH\ % Council did not give a decision whether the husband could have recourse to personal violence except making a passing observation. On the other hand, one finds the following at Page 523 of Muhammadan Law by Amir Ali 1929 Edition :‑ "It is no defence to a claim for divorce on the ground off cruelty, that the cruelty was the result of the wife's own conduct. For example, if a man were: to say that he beat the wife cruelly because she blasphemed the Muslim religion, or because she was unfaithful to him, it would not be sufficient defence in law." I have not been shown any authority by Mr. Fazlur Rehman in which it may have been held that in a suit for divorce on the ground of cruelty by the wife, the husband can take the defence that he chestised her because she refused to obey him. Moreover, even if the husband is entitled to chestise his wife in certain circumstances, this defence should have been raised in the written statement. It was the duty of the defendant if he wanted to rely upon such a defence, to have stated the occasions on which he was obliged to chestise his wife for any misbehaviour on her part. There is no such allegation in the written statement. In fact, the defendant had categorically denied to have ever assaulted or given a beating to the plaintiff. The case of chestisement on the dis‑obedience of the wife was put for the first time in the cross‑examination of the plaintiff and disclosed by the defend?ant in his examination‑in‑chief. This, to my mind, is an after‑thought. The defendant realised that he cannot get over his own admission that he has made in letters Exhs. 8, 9 and

10. It was urged by Mr. Fazlur Rehman very strenuously that the defendant was a very loving husband. He used to spend lot of money on the plaintiff. He had taken her to England twice and had opened a joint account in her and own name and therefore, he could not be cruel. The inference that Mr. Fazlur Rehman wanted me to draw from these facts, is not a reasonable inference. The defendant may have been on the whole a loving husband and yet he could be at times cruel so as to beat his wife. It is sufficient to dispose of this conten?tion to state that the letters of the defendant himself prove that he was cruel and that he did beat his wife. It was also contended by Mr. Fazlur Rehman that the attitude of the plaintiff changed when the defendant retired as he was not able to spend the same amount of money which he used to spend when he was in service. It may be so; but on the' other hand it was also likely that the defendant may have, by his straitened circumstances, become easily exciteable with the result that he became cruel in his conduct towards his wife. I have not dealt with the question whether the defendant had made the life of the plaintiff miserable by cruelty of conduct. This question, to my mind, can include the habitual use of abusive and insulting language to the plaintiff: The life of the plaintiff, who comes out of a respectable family and is well educated, can become miserable if the defendant were to habitually use abusive and insulting language to her. So far as this question is concerned, the plaintiff has stated that the defendant used to use abusive and insulting language against her. I do not see any reason why I should disbelieve the plaintiff on this question. If the defendant would go to the length of assaulting and creating the plaintiff, it is not surprising if he used insulting and abusive language. I, therefore, for the reasons given above, hold that the defendant habitually assaulted the plaintiff and made her life miserable by his conduct. The plaintiff is entitled to the dis?solution of her marriage. The suit is decreed for dissolution of marriage with costs. Towards the end, I may mention that I was obliged to be indulgent to the defendant as he was an under‑trial prisoner for some criminal case. The case had to be adjourned on several occasions and I had allowed certain documents to be summoned very late and ordered them to be brought on the file of the case. A. H. ?????????????????????????????????????????????????????????????????????????? ??????????????????????????????????? Suit decreed.