MUHAMMAD ARIF vs SAIMA NOREEN and anothers

ORDER

SARMAD JALAL OSMANY, J.---These two Petitions impugn the Judgment of the learned Peshawar High Court (Abbottabad Bench) in Writ Petitions Nos. 504-A of 2012 and 652-A of 2012 filed by the petitioner whereby same were dismissed.

2. Briefly stated the facts of the case are that the respondent married the petitioner according to Islamic Sunni Rights on 21-4-2010. Thereafter apparently the relations became strained which ultimately led the respondent to file a suit for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939 on the basis of cruelty. So also it was prayed that the dowry articles be returned to her and that she be given possession of the house which was given to her as dower per the Nikah Nama. The suit was decreed by the learned Family Court and such decree was upheld both by the learned Appellate Court as well as by the learned High Court and hence the Petition.

3. Mr. Muhammad Bashir Mughal, learned Advocate Supreme Court appearing for the petitioner has submitted that the entire evidence led by the respondent nowhere displays even an iota of cruelty perpetuated upon her by the petitioner. To the contrary the respondent admits under cross-examination that she was living very happily with the petitioner. So also other witnesses who were produced by the respondent No, 1 in her favour to prove her claim could not establish that the petitioner was guilty of cruelty insofar as the respondent No, 1 is concerned. Consequently learned Advocate Supreme Court has submitted that the ground of cruelty which the respondent No,1 had alleged in her suit for dissolution of marriage could not be proved by her and hence at the most the learned Family Court could grant her a decree of dissolution of marriage on the basis of Khula only in which event there could not be any question of dower as in such circumstances the wife has to forgo the dower per the Proviso to section 10 of the West Pakistan Family Courts Act, 1964 and as per Sharia. Regarding the other decretal amounts viz Rs,6,000 as maintenance and return of dowry articles learned Advocate Supreme Court says that such amount has been deposited with the Learned Family Court and all the dowry articles have been taken away by the respondents.

In favour of his submission learned Advocate Supreme Court has relied upon Mst. Shamim Akhtar v.

Abdur Rafiq and 2 others (PLD 2013 Peshawar 12) and Muhammad Faisal. Khan v. Mst. Sadia and another (2013 M LD 760).

4. To this submission Mr. M. Saliheen Mughal, learned counsel appearing for the respondents has submitted that it is not necessary that cruelty has to be proved by physical marks on the body of the person but it can also be by way of mental torture. He has stressed that in her deposition before the learned Family Court the respondent had stated on oath that the petitioner as well as his family members used to torture her day in and day out as a result of which she was forced to leave her marital home. Hence per learned Advocate Supreme Court when three forums have reached the conclusion that indeed the petitioner used to perpetuate cruelty upon the respondent then this Court should not interfere as normally it would not do so in matters of fact which have been established by the learned lower forums.

5. We have heard both the learned ASCs as well as the learned DAG and perused the record along with the evidence led by the respondent in her suit for dissolution of marriage.

6. Suffice it to say that even the learned Family Court had reached the conclusion that indeed no cruelty could be proved by the respondents for which proposition the following paragraphs and the findings of the Family Court are reproduced as under:-- 'Plaintiff in Suit No,4/FC has failed to produce any medical certificate in support of her allegation; regarding beating or any Doctor, from any hospital, where she might have remained under medical treatment. Moreover, further in her statement she stated that during the abadi, the attitude of defendant of Suit No, 4/FC was cordial. It is also an admitted fact that plaintiff went to her parent's house on her own. Jirga members, produced by her have also stated that it was the plaintiff party who was not willing for abadi, hence, I, hold that defendant in Suit No .4/FC has not treated the plaintiff with cruelty, plaintiff went to her parents' house at her sweet will and is not ready for her abadi. Therefore, it is held that her ghair abadi is self imposed, thus she is not entitled for recovery of any maintenance allowance during ghair abadi, excepting maintenance allowance during iddat period at the rate of Rs,2,000 P.M. And in total Rs,6,000. However, as the relations between the parties gone so strained and there seems no possibility of reunion between the parties, and if they are constrained to live together, they may transgress the limits of Almighty Allah and their union may not last longer. Hence, their separation has become inevitable. Plaintiff is thus entitled for dissolution of marriage."

' In these circumstances the learned Family Court could hardly grant a decree for dissolution of marriage on the basis of cruelty under -the Dissolution of Muslim Marriages Act, 1939. Hence the only way out and the logical conclusion was that the marriage should have been dissolved on the basis of Khula in which event the respondent would have to forego the dower amount.

Consequently we while converting Civil Petition No, 1479 of 2014 into an Appeal would allow the same and decree the suit of the respondent No, 1 for dissolution of her marriage with the petitioner on the basis of Khula only. We are told that the plot which was given to her as dower has been mutated in the respondent No, l's favour by the petitioner, hence the mutation shall now revert back to the petitioner.

7. Insofar as Civil Petition No,1421 of 2014 is concerned viz restoration of conjugal rights, as we have already allowed Civil Petition No,1479 of 2014 by converting it into an Appeal, this has become infructuous and is dismissed accordingly.