Marriage should be dissolved on the basis of Khula, when wife is determined not to live with her husband because of her hatred for him and without any fault on the part of husband.

2014 Y L R 1743

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

GUL HASSAN—Petitioner

Versus

Mst. NASREEN AKHTAR and 2 others—Respondents

Writ Petition No.242-D of 2010 and Writ Petition No.598D of 2011, decided on 13th November, 2012.

(a) West Pakistan Family Courts Act (XXXV of 1964)—

—-S.5, Sched.—Dissolution of Muslim Marriages Act (VIII of 1939), S.5—Constitution of Pakistan, Art, 199—Constitutional petition—Dissolution of marriage—Concurrent findings of fact by two courts below—Family Court and Lower Appellate Court concurrently dissolved marriage between parties—Validity—Both the courts below concurrently arrived at a conclusion that husband failed to fulfil his liability—Marriage debt was still outstanding against husband and he was ready to divorce his wife provided she would forgo her dower and maintenance amount—Written statement and evidence of husband were sufficient to prove that he was mostly interested in waiver of dower amount rather than in his wife—No misreading and non-reading of evidence or any illegality or irregularity was pointed out, which could warrant interference of High Court—Petition was dismissed in circumstances.

(b) West Pakistan Family Courts Act (XXXV of 1964)—

—-S.5, Sched.—Dissolution of Muslim Marriages Act (VIII of 1939), S.5—West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.—Non-payment of dower—Effect—Non-payment of dower by husband makes wife entitled to live apart from her husband till her dower is paid and during such period, husband becomes bound to pay her maintenance, even though she is living apart from him—When wife succeeds to establish ground of cruelty and non-maintenance for sufficient long time during subsistence of marriage, she becomes entitled to dissolution of marriage.

(c) West Pakistan Family Courts Act (XXXV of 1964)—

—-S.5, Sched.—Dower and maintenance—Entitlement—Once it is found that aversion was result of maltreatment of husband; non-payment of dower; or any other genuine ground provided in law, wife cannot be deprived of her dower and maintenance.

(d) Muslim Family Laws Ordinance (VIII of 1961)—

—-S.7—Dissolution of marriage—Khula—Principle—Marriage should be dissolved on the basis of Khula, when wife is determined not to live with her husband because of her hatred for him and without any fault on the part of husband.

Nauman Gul and Muhammad Anwar Awan for Petitioner.

S. Mastan Ali Zaidi and Ahmad Ali Khan Marwat for Respondents.

Date of hearing: 13th November, 2012.

JUDGMENT

ROOH-UL-AMIN KHAN, J.—Through this common judgment we propose to decide two writ petitions, bearing Writ Petition No.242-D of 2010, and Writ Petition No. 598-D of 2011, of the same title “Gul Hassan v. Mst. Nasreen Akhter” as both the petitions pertain to family matter between the same parties.

2. Brief but relevant facts of the case are that Gul Hassan (hereinafter referred as petitioner) and Mst. Nasrin Akhter Malik (hereinafter referred as respondent), entered into marriage contract in the year 2003. At the time of marriage the dower amount was fixed Rs.100,000. Unfortunately, it appears that in the year 2006, the relation between the spouses fell out. In consequence, the respondent filed a suit for recovery of her dower amount Rs.100,000; return of 15 tolas ornaments; past and future maintenance (a) Rs. 2000 per month; cash amount Rs.7,84000; dowry articles as per list attached with the plaint or in alternate its market value. She also claimed 20 tolas, gold ornaments, outstanding against the petitioner. She prayed for possession of 1/3 share of plot measuring 1 Kanal, 3 Marlas. Respondent averred in the plaint that her marriage was solemnized in the year 2003 in lieu of dower Rs.1,00,000, which is still outstanding against the petitioner; that at the time of marriage, the petitioner promised to give 15 tolas gold ornaments to the respondent out of which she was given 7 tolas gold ornaments, which are in possession of petitioner, while remaining 8 tolas are outstanding; that the petitioner also transferred 1/3 share of plot measuring 1 Kanal, 3 marlas, in favour of respondent. At the time of marriage, respondent was given dowry articles, as per list and 20 tolas gold ornaments, by her parents which are also in possession of petitioner; that from very beginning petitioner has been deceiving and blackmailing the respondent by taking certain amount from her on the pretext that he was obliged to refund the loan obtained for marriage and construction of house. He also secured small loans from Banks, which were returned/ repaid by her to the banks; petitioner also grabbed a handsome amount from her G.P. Fund and Advance salary. In this way, petitioner received total amount of Rs.7,84000 from respondent with the assurance that the petitioner will return the same. But in September, 2006, petitioner insisted to waive of her dower and return the plot, which has been-transferred in the name of respondent. On refusal petitioner gave her threats of killing and at last on 24th September he ousted the respondent in the wearing clothes. She also sought the partition of that joint plot. She averred that during the period of desertion petitioner did not bother to maintain her, rather use to intimidate, her thus she was compelled to file suit for the recovery as mentioned in the preceding Paras.

3. The suit was contested by the petitioner through filing written statement. During pretrial conciliation the respondent agreed to settle with petitioner, but subject to payment of her dower and maintenance, etc. However, the effort for reconciliation could not succeeded, thus both the parties adduced pro and contra evidence in support of their respective claims. After hearing the parties, the learned Civil Judge-IX/Judge Family Court, vide judgment and decree dated 30-5-2009, partially decreed the suit of plaintiff in her favour, to the extent of dower amount of Rs.100,000 and maintenance allowance Rs. 2000 per month from September, 2006 till decision of the case i.e. 30-5-2009. The respondent was also held, entitled for future maintenance only in the case, if she went and settled with the petitioner, while rest of the suit was dismissed. The trial Court also granted decree for restitution of conjugal right in favour of the petitioner subject to payment of dower and maintenance etc. Aggrieved from the decree dated 30-5-2009, petitioner filed Family Court Appeal No. 3 of 2009, while respondent filed Family Court Appeal No. 4 of 2009, before learned District Judge, which were entrusted to learned ADJ-II, D.I.Khan, who after hearing arguments decided both the appeals through a single judgment, dated 20-1-2010. The appellate Court partially allowed the appeal of respondent, whereby the judgment and decree to the extent of conjugal rights, passed in favour of petitioner was set aside. The appellate court further modified the judgment and decree to the extent of maintenance allowance at the rate of Rs.2000 per month from 24th September, 2006 till the satisfaction of decree, passed in favour of plaintiff or till the reunion, whichever occurs earlier, petitioner being aggrieved filed instant Writ Petition No. 242 of 2010, before this court.

4. During pendency of instant writ petition the respondent instituted suit, for dissolution of marriage, before Civil Judge-1X/ Judge Family Court, D.I.Khan, which was decreed on 31-5-2011, whereagainst petitioner also filed Writ Petition No. 598 of 2011, here before us.

5. Learned counsel for petitioner contended that respondent without any reason has deserted the house of petitioner and has preferred to live with her parents. The petitioner has tried his best for conciliation and abadi of respondent and in this respect the petitioner has arranged several Jirgas. On her demand a new house was constructed for her; that the decree of future maintenance was conditional and was subject to performance of conjugal obligations, but to avoid and frustrate the decree for restitution of conjugal rights she filed another suit i.e. for dissolution of her marriage, on the basis of alleged aversion. Learned counsel for the petitioner invited our attention to Para No. 5 of the plaint, in suit for dissolution of marriage, and contended that the respondent has urged in her plaint that the relation between the parties has become so strained, rather has created utmost fear and hatred, therefore the parties cannot live as husband and wife. This assertion of the respondent disentitled her from the decree of dower and maintenance and she was only entitled for a decree for dissolution of marriage on the basis of Khula. The courts below have committed illegalities and irregularities while decreeing the suit for dower, maintenance and subsequently for dissolution of marriage.

6. In rebuttal learned counsel for the respondent, in support of the impugned judgments and decrees, argued that suit for dower and maintenance etc. was filed in the year 2006, which was decreed by the Judge Family Court, in the year 2009, to the extent of dower and maintenance. The petitioner’s appeal was also dismissed by the learned appellate court, vide its judgment and decree dated 26-1-2010. The petitioner, all the times, has remained adamant and obstinate. He was not interest to resolve the matter during the period since 2006 to 2010. During this period he has never tried to reconcile the matter or to pay her due right of dower and maintenance. The petitioner had kept the respondent busy in litigation, instead of paying her due dower and maintenance. He further argued that during this period the relation between the parties become so strained that, it was difficult for the respondent to live in the wedlock of the petitioner. Having no alternate she filed a suit for dissolution of her marriage. She had proved on the record that the petitioner is a cruel and careless person and at any cost not willing to provide the due right to his wife, i.e. present respondent.

7. We have given our anxious thoughts to the exhaustive arguments of the learned counsel for the parties and perused the record with their valuable assistance, which reveals that since 2006 the relation between the spouses were not cordial. The petitioner by his conduct obliged the respondent to abandon the house of her husband and take abode in the house of her parents. Respondent had brought a suit for recovery of dower, maintenance, gold ornaments and cash amount, wherein she succeeded to partially prove her case. The learned trial Court vide judgment and decree dated 30-5-2009, partially decreed her suit to the extent of dower amount and maintenance allowance @ Rs.2000 per month from September, 2006 till decision of the case. The future maintenance was also decreed in her favour, but subject to condition that she will go and live with her husband. After the above mentioned decree, the petitioner had not contacted his legally wedded wife to please and gratify her but taking his wife to his home in lieu of payment of dower and maintenance he selected a way of litigation. Against the judgment and decree of trial Court the appeal also was filed which bore no fruit and the petitioner approached this Court through instant petition.

8. It is proved on record through cogent and trustworthy evidence that the dower of the respondent is still outstanding against the petitioner. Since 2006 the respondent constantly making demand for payment of her due dower, but till date she has been kept deprive from her vested right. This conduct and attitude of the petitioner and non-payment of dower is a lawful excuse for wife to deprive him of her companionship. During the intervening period i.e. decision of Family Court and filing of Writ Petition the agonies of the respondent has been multiplied and she was compelled to file suit for dissolution of her marriage. It is pertinent to observe here that in the suit for recovery of dower and maintenance etc., during pre-trial conciliation the plaintiff was agreed and ready to settle with petitioner subject to payment of her dower, gold ornaments, house and plot etc. but petitioner was adamant and has stated before the court that the gold ornaments are in possession of the plaintiff and the respondent being school teacher at D.I.Khan is not ready to go with him to his house at Bhakkar. For the above reasons, the reconciliation failed.

9. In the Suit bearing No. 166/1, the petitioner has not denied the fixation of dower amount as Rs.100,000, but he has raised a fantastic plea, that he had spent double amount of her dower in her transfer from South Waziristan Agency to settled area of D.I. Khan and in this way he has paid the dower amount. In support of his above claim, he failed to bring an iota of evidence, to substantiate that the department had transferred the respondent from D.I. Khan to Jandola, Waziristan (FATA) and he paid a gratification to officers of Education Department for cancellation of her transfer from Jandola to D.I. Khan. Neither he has produced any transfer or its cancellation order, nor has produced a single witness to substantiate his plea before the trial Court. Thus, the trial court has rightly held that the dower amount of Rs.100,000 is outstanding against the petitioner and the respondent is entitled for its recovery. Similarly, the trial Court after thrashing out entire evidence has arrived at a conclusion that in fact the respondent was having valid justification for living apart from petitioner till the payment of dower and maintenance etc. The record divulges that the respondent has not deserted the house of petitioner without any reason, but the conduct and attitude of the petitioner brought the life of respondent miserable, which obliged her to abandon the house of petitioner. In fact the husband was under social and legal obligation to maintain his wife but the petitioner, during the entire proceedings, has failed to prove that he was willing to fulfil his obligation, but it was respondent who avoid settlement with petitioner without any reason. The above-mentioned conduct is sufficient to create a reason for dissolution of marriage. Record reveals that since 2006, petitioner has neither visited her house nor maintained her. She was kept engaged in various litigations and finally she was forced to file suit for dissolution of marriage on the ground of cruelty and aversion. The record further reveals that during conciliation proceedings the respondent was willing to go with her husband at very initial stage, subject to payment of her due right of dower and maintenance. In subsequent suit the respondent has proved the aversion between the parties, reached to such a level that it would be difficult for the parties to live in the limits ordained by the Almighty Allah.

10. Both the courts below concurrently have arrived at a conclusion that the petitioner has failed to fulfil his liability. The marriage debt is still outstanding against the petitioner and he is ready to divorce his wife, provided she forgoes her dower and maintenance amount. His written statement and evidence, in suit for dissolution of marriage are sufficient to prove that he is mostly interested in the waiver of the dower amount rather than in his wife. Dissolution of Muslim Marriages Act, 1939 provide recognized grounds for dissolution of marriage. Under the ibid Act, neglecting or non-maintaining the wife for a period of two year’s give her right for dissolution of marriage. In the instant case, record reveals, that the respondent, since 2006, has taken abode and inhabited in her parents house. Since then she is making demand for her dower, but the petitioner constantly neglecting her demand. Non-payment of dower by the husband makes the wife entitled to live apart from her husband till her dower is paid and during this period, the husband become bound to pay her maintenance, even though she is living apart from him. Plethora of evidence available on record, reveals that respondent has succeeded to establish her entitlement to dissolution of marriage on grounds of cruelty and non-maintenance for sufficient long time, during subsistence of marriage.

11. As referred in the preceding Para the connotation of word cruelty has been enlarged by the Dissolution of Muslim Marriages Act, 1939 and that can be either physical, mental or even by conduct. In the instant case, it is evident from the record that the respondent has sustained acute mental anguish and suffering by the reckless and careless attitude and conduct of the petitioner which entitled her for dissolution of marriage on recognized ground under Muslim Marriages Act, 1939.

12. The contention of the learned counsel for the petitioner that due to hate and aversion on the part of the wife, she is not entitled for dissolution of marriage, could not persuade us, for the reason that once it was found that the aversion was the result of the maltreatment of husband; non-payment of dower; non-maintenance; or any other genuine ground provided in law, she would not be deprived of her dower and maintenance. Marriage shall be dissolved on the basis of Khulla, when the wife is determined not to live with her husband because of her hatred for him and without any fault of the part of the husband. Due to the conduct and cruel attitude of the petitioner, it will not be possible for the respondent to live with him within the limits prescribed by Almighty Allah and thus she could not be deprived of her dower debt and other rights.

13. For what has been discussed above, both these petitions fail, as no misreading and non-reading of evidence or any illegality or irregularity has been pointed out, which may warrant interference of this Court. As such, both the petitions are hereby dismissed, with no order as to costs.

MH/74/P Petitioner dismissed.