PLJ 2013 Peshawar 64 (DB)
[D.I. Khan Bench]
[D.I. Khan Bench]
Present: Qaiser
Rashid Khan & Rooh-ul-Amin Khan, JI.
GUL
HASSAN--Petitioner
versus
Mst. NASREEN
AKHTAR & 2 others--Respondents
W.P. No. 242 of
2010, decided on 13.11.2012.
Constitution of Pakistan,
1973--
----Art.
199--Constitutional Petition--Suit for recovery of her dower, past and future
maintenance, decree--Appeal was dismissed--Challenge to--Relation between
parties so strained that it was difficult to live in wedlock--Cruel and
careless person--Conduct obliged to abandon house of her husband and take abode
in house--Validity--After decree, petitioner had not contacted his legally
wedded wife to please and gratify her but instead of taking his wife to his
home in lieu of payment of dower and maintenance he selected a way of
litigation. [P. 69] A
Dower--
----Demand for
payment of her due dower, but till date she had been kept deprived from vested
right--Conduct and attitude of petitioner and non-payment of dower was a lawful
excuse for wife to deprive him of her companionship. [P. 69] B
Constitution of Pakistan,
1973--
----Art.
199--Constitutional petition--Suit for recovery of her dower which was still
outstanding against husband--Not denied fixation of dower amount but raised
fantastic plea that he had spent double amount of her dower in her transfer and
in that way he had paid dower amount--Validity--In support of his claim he had
failed to bring an iota of evidence, to substantiate that department had
transferred and he paid a gratification to education department for
cancellation of her transfer--Neither he had produced any transfer or its
cancellation order, nor had produced a single witness to substantiate his plea
before trial Court--Dower amount was outstanding against petitioner and
respondent was entitled for its recovery--Trial Court after thrashing out
entire evidence had arrived at conclusion that in fact husband was having valid
justification for living apart from petitioner till payment of dower and
maintenance--Non-payment of dower by husband made wife entitled to live a part
from her husband till her dower was paid and during such period husband become
bound to pay her maintenance, even though she was living a part from him. [Pp. 70 & 71] C & F
Dower--
----Husband had
failed to fulfill his liability--Marriage debt was still outstanding against
petitioner--Written statement and evidence in suit for dissolution of marriage
were sufficient to prove that he was mostly interested in waiver of dower
amount rather than in his wife. [P. 70] D
Dissolution of
Muslim Marriage Act, 1939--
----Scope
of--Recognized grounds for dissolution of marriage--Neglecting or
non-maintaining wife for period of two years give her right for dissolution of
marriage--Wife had succeeded to establish her entitlement to dissolution of
marriage on grounds of cruelty and non maintenance for sufficient long time,
during subsistence of marriage. [P.
71] E & G
Dissolution of
Muslim Marriage Act, 1939--
----Scope
of--Attitude and conduct of husband--Connotation of word cruelty--Physical,
mental or even by conduct--Husband had sustained acute mental anguish and
suffering by reckless and careless attitude and conduct of the petitioner which
entitled her for dissolution of marriage on recognized ground under Muslim
Marriage Act. [P. 71] H
Dissolution of
Marriage--
----Contention--Due
to hate and aversion on part of wife, she was not entitled for dissolution of
marriage--Held: Once it was found that aversion was result of maltreatment of
husband, non-payment of dower, non-maintenance, or any other genuine grounds
provided in law she would not be deprived of her dower and maintenance. [P. 71] I
Khulla--
-----Conduct and
cruel attitude of husband--Marriage shall be dissolved on basis of Khulla, when
wife was determined not to live with her husband because of her hatred for him
and without any fault of part of husband--Due to conduct and cruel attitude of
petitioner, it will not be possible to live with husband within limits
prescribed by Almighty Allah and thus she could not be deprived of her dower
debt and other rights. [P. 71] J
M/s. Nauman Gul
& Muhammad Anwar Awan, Advocates for Petitioner.
Mr. S. Mastan
Ali Zaidi and Mr. Ahmad Ali Khan Marwat, Advocates for Respondents.
Date of hearing:
13.11.2012.
Judgment
Rooh-ul-Amin
Khan, J.--Through this common judgment we propose to decide two writ petitions,
Bearing W.P. No. 242-D of 2010, and W.P. No. 598-D of 2011, of the same title
"Gul Hassan Vs. 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.100000/-.
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. 100000/- return of 15 tolas ornaments; past and future
maintenance @ Rs. 2000/ per month; cash amount Rs.784000/-; dowry articles as
per list attached with the plaint or in alternate its market value. She also
claimed 20 toals 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.784000/- 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 24 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 30.05.2009, partially decreed the
suit of plaintiff in her favour, to the extent of dower amount of Rs.100000/-
and maintenance allowance @ Rs. 2000/- per month from September 2006 till
decision of the case i.e. 30.05.2009. 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
30.05.2009, 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, which ever occurs earlier. Petitioner being aggrieved
filed instant W.P. 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-IX/Judge Family Court, D.I.Khan, which was decreed on 31.05.2011,
whereagainst petitioner also filed W.P. 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 can not 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 26.01.2010. The petitioner, all the times, has
remained adamant and obstinate. He was not interested 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. the 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 30.05.2009, 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 instead of 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
trust worthy 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 deprived 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.100000/-, 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. 100000/- 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 fulfill 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 fulfill 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 Marriage 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 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. Nonpayment of dower by the husband makes the wife
entitled to live a part 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 a part 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; nonpayment 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.
(R.A.) Petitions
dismissed
