2019 PLP 1999 (MLD)

RAJA SAJJAD AHMAD KHAN, J.

Since both the appeals are outcome of the common judgment of the trial Court, therefore, these are being consolidated and will be disposed of through this single judgment.

2. Briefly the facts of the case for disposal of above titled appeals are that Majid Hussain and Farah Naz had contracted marriage in accordance with Sharia on 08.08.2007 in lieu of dower Rs.2,00,000/- and Rukhsati had taken place on 09.08.2009. The relations between the spouses became strained resulted into present litigation. Majid Hussain (hereinafter to be referred as plaintiff-appellant) instituted a suit for restitution of conjugal rights on 21.02.2017, whereas Farah Naz (hereinafter to be referred as defendant-respondent) filed following three suits before Additional District Sessions Judge, empowered as Judge Family Court, Rawalakot on 25.05.2017 and 05.10.2017. (i) Recovery of maintenance allowance @ Rs.1,0000/-per month for last five year; (ii) Recovery of dower amounts Rs.2,00,000/- along with 25 tolas ornaments; (iii) Dissolution of marriage on the basis of non-payment of maintenance, dower and non-performance of marital obligations.

3. Both the parties contested the suits by filing written statement and rebutted the claims of each other. All the suits were consolidated on 03.11.2017, consolidated issues were framed and after recording consolidated evidence, learned Judge Family Court after hearing arguments dissolved the marriage on the ground of 'Khula' in consideration of dower Rs.2,00,000/-, dismissed the suits of maintenance allowance, recovery of ornaments while suit for restitution of conjugal rights filed by Majid Hussain plaintiff-appellant was also dismissed vide impugned judgment and decrees dated 12.06.2018, hence these appeals.

4. Miss Zobia Badar, the learned Counsel for plaintiff-appellant has assailed the impugned judgment and decrees on the grounds that the judgment and decrees passed by the trial Court are quite against the settled principle of justice. She further argued that the trial Court failed to appreciate the evidence on record, dismissed the suit of appellant for restitution of conjugal rights and passed the decree of dissolution of marriage in favour of defendant-appellant where as she wants to live with her husband but her brothers and parents made restriction upon her settlement who snatched her passport, and in this regard a case was already registered before Police Station, Rawalakot. The learned counsel finally prayed for passing the decree of restitution of conjugal rights and also prayed for dismissal of appeal filed by defendant-respondent herein.

5. On the other hand, Syed Habib Hussain Shah, Advocate for Farah Naz, defendant-respondent argued that trial Court committed grave illegality while passing the impugned decree of dissolution of marriage on the ground of the 'Khula' whereas mental cruelty is proved from cogent and convincing evidence and all the witnesses have supported the version of defendant-respondent that due to his cruel attitude she was unable to live with her husband, thus the same is based on non-reading and mis-reading of evidence; therefore, the same is liable to be modified and finally he craved for acceptance of appeal. In support of contention, the learned counsel placed reliance on 2011 SCR 233 and 2014 SCR 718.

6. In the light of arguments addressed at Bar by the learned counsel for the parties, I have gone through the record as well as the evidence of the parties.

7. From perusal of record reveals that prior to the institution of the suits by Farah Naz, Majid Hussain filed the suit for restitution of conjugal rights. In written statement filed on 20.11.2015 Farah Naz categorically stated that she will not settle with her husband at any cost and in this regard she has filed a suit for dissolution of marriage before Judge Family Court, Islamabad. Copy of the suit was also attached with written statement. Admittedly Faraha Naz instituted a suit for dissolution of marriage on the ground of 'Khula' before Family Court, Islamabad on 10.07.2015 and finally the suit was returned to the plaintiff for filing the same before Judge Family Court having jurisdiction. Thereafter plaintiff filed the suit before Judge Family Court, Rawalakot on the basis of non-payment of maintenance, 25 tolas ornaments and non-performance of marital obligations on 05.10.2017 and stated that in suit filed before Judge Family Court, Islamabad, plea of `Khula' was inadvertently incorporated. It is pertinent to mention here that plaintiff tried to suppress the fact regarding her Rukhsati and institution of suit before Family Court, Islamabad. Perusal of statement of witnesses reveals that her witness Shafique deposed that he has no knowledge about dower and maintenance, however, deposed that on 18.09.2011 when after participating in marriage ceremony, she was going along-with her brother and sister to her parent's house, some unknown persons snatched ornaments worth Rs.3,00,000/-, U.A.E. Dirham and Passport from her and FIR was lodged in this respect, she remained coming and going to Abu Dahbi. He further deposed that Farah Naz defendant-respondent moved an application before Police Station, against her mother and brothers that she wants to settle but her brothers and mother did not allow her to settle. Farah Naz defendant-respondent also confirmed theft of her ornaments in her statement and deposed that she remained Abu Dahbi for three years and frequently visited to Pakistan. She admits that she appeared before Superintendent Police and gave statement that she wants to settle with her husband and thereafter came to her in laws without permission of her brothers. She also admits that her passport was recovered from her mother through SP. The statement of Farah Naz supports the claim of Majid Hussain.

8. So far as the case with regard to dissolution of marriage is concerned. The plaintiff claimed dissolution of marriage on the grounds of non-payment of maintenance and non-performance of marital obligations. Under the Muslim Marriages Act, 1939 if the husband has neglected or has failed to provide for her maintenance for a period of two years; or that the husband has failed to perform, without reasonable cause his marital obligations for a period of three years then the wife is entitled for decree of dissolution of marriage but in the instant case the period of non-maintenance and non-performing of marital obligation is not completed, therefore, she is not entitled dissolution of marriage on these grounds while she failed to prove the allegation of cruelty through cogent and convincing evidence as witnesses produced by her did not support her claim nor she produced medical evidence regarding violence. From perusal of the statements defendant's witnesses reveals that defendant made his best efforts to settle the plaintiff but she is not ready to live with her husband, even she got recorded her statement wherein she categorically deposed that she does not want to live with Majid Hussain plaintiff-appellant. In her cross-examination she deposed that defendant moved an application before respectable of the Rehara regarding settlement of plaintiff and also went to house of plaintiff and it is incorrect that her brothers and parents refused her settlement, therefore, the learned Judge Family Court, Rawalakot, rightly appreciated the evidence of the parties in its true perspective and rightly passed the decree for dissolution of marriage on the ground of 'Khula' in consideration of dower Rs.2,00,000/-.

9. So far as the case with regard to the restitution of conjugal rights is concerned. Under these conditions when a wife is not willing to live with her husband at any cost then to grant a decree for restitution of conjugal rights would amount to compel for force union though they are married to each other which is not permissible under law, and ordinarily when she states before the Court it is not possible for her to live within the limits ordained by Almighty Allah, then the marriage is dissolved, therefore, the trial Court rightly dismissed the suit of restitution of conjugal rights.

10. So far as the case of non-payment of maintenance allowance is concerned. From perusal of evidence reveals that plaintiff did not prove the allegation of non-payment of maintenance, non-performance of marital obligation and cruelty through cogent evidence. Even her witness also did not support her version. Law is well settled on the point that husband is duty bound to pay maintenance allowance to the wife till she is faithful to the husband and lives with him. If she voluntarily leaves the house of her husband, she is not entitled to maintenance charges. Wife's refusal to live with her husband without any lawful excuse, desertion or otherwise willfully failed to perform her marital duties, would lost her claim for maintenance. In the present case, the evidence shows that she left the house of appellant according to her free consent and living apart from the husband without any reason, therefore, the trial Court rightly dismissed the suit for recovery of maintenance.

11. As far as the case with regard to the recovery of dower is concerned. From perusal of the Nikah Nama Ex.PA reveals that dower Rs.2,00,000/- was fixed as deferred dower. The entries made in the Nikah Nama have presumption of truth. The defendant-respondent failed to prove regarding giving ornaments at the time of marriage and snatching the same, however, she deposed in her statement that the ornaments were stolen away, so she is not entitled for recovery of stolen ornaments. However, during trial, the appellant deposed that he had paid the dower but could not produce any evidence of payment of dower Rs.2,00,000/- and the trial Court has rightly passed the decree of dower in favour of Farah Naz and converted it into "Khula".

12. In the light of above detailed discussion, I do not find any misreading/non-reading of the evidence or legal infirmity in the impugned judgment and decrees and the same are based on material available on the record which are maintained. The epitome of above discussion is that finding no force in both the appeals, these are hereby dismissed. SA/7/HC(AJ&K) Appeals dismissed.