MUHAMMAD ANSAR CHAUDHARY Versus MAIDA ZAHOOR
ORDER
1. RAZA ALI KHAN, J.--- This appeal has been filed against the judgment and decree dated 15.01.2018 passed by the learned Additional District Judge/Judge Family Court Kotli.
2. Precise facts of the case are that Maida Zahoor filed a suit for dissolution of marriage against Muhammad Ansar Chaudhary appellant herein in the court of Additional District Judge/Judge Family Court Kotli. It was averred that the plaintiff was married to defendant on 10.10.2007 for the consideration of Rs.130,050/-. It was contended that after the marriage, the plaintiff performed her matrimonial obligations and after 4 months of Nikkah the defendant went to Dubai. It was further contended that the defendant was convicted in the offence of narcotics in Dubai. It was alleged that the defendant came back to Pakistan in 2012 and after passing 5 months, again went to England and did not come back to home for the last 4 years and out of their wedlock, a son Muhammad Ahmed and daughter Anoosha were born. It was contended that the defendant is threatening the plaintiff for divorce and using bad words and is sending bad pictures. It was further contended that due to the behavior of the defendant the plaintiff did not want to live with him because in the 10 years of their married life, the defendant performed his matrimonial obligations for 10 months and whenever he goes abroad his family members ousts the plaintiff from home. The defendant contested the suit by filing written statement wherein he refuted the claim of the plaintiff. A counter suit was also filed by Muhammad Ansar Chaudhary for restitution of conjugal rights wherein it was stated that out of their wedlock, a daughter and a son were born. It was stated that for earning livelihood, the plaintiff went abroad and provided all the facilities of life to defendant No.1, however, the defendants Nos.2 to 4 enticed defendant No.1 and are creating obstacles in the way of resettlement of the spouses. The defendant contested the suit by filing written statement and submitted the defendant does not want to live with the plaintiff. The learned Judge Family Court consolidated both the suits, framed issues provided the parties opportunity of hearing and after hearing the parties, dissolved the marriage on the ground that the defendant did not perform matrimonial obligations and dismissed the counter suit through impugned judgment and decree dated 15.01.2018, hence, the captioned appeal.
3. The learned Advocate appearing for the appellant argued that the plaintiff failed to prove cruelty, non payment of maintenance and this fact is admitted by the court below but despite that dissolved the marriage on the ground that the defendant did not perform matrimonial obligations. The learned Advocate submitted that defendant appellant by producing evidence proved that he wants to continue the relation of husband and wife and resettle the plaintiff respondent but the court below failed to appreciate the evidence brought on record and reached at a wrong conclusion.
4. The learned Advocate appearing for the other side argued that it is proved from the evidence that the defendant appellant did not perform matrimonial obligations for the last 4 years without any reasonable cause, therefore, the court below rightly dissolved the marriage of the plaintiff respondent who is a young lady, on the ground of non-performance of matrimonial obligations.
5. I have heard the learned counsel for the parties and gone through the record of the case.
6. A perusal of the record reveals that the learned Judge Family Court dissolved the marriage on the ground of non performance of matrimonial obligations by the defendant for 4 years without reasonable cause and dismissed the suit regarding cruelty and non-payment of maintenance. The appellant has challenged the judgment through the captioned appeal on the ground that the plaintiff was not entitled to decree for dissolution of marriage. It is proved from the evidence produced by the plaintiff that the defendant did not perform matrimonial obligations since 2012 to 2016. This fact is admitted by the witnesses produced by the defendant as well as defendant himself that he went to England on 08.03.2012 and came back to Pakistan in 2017, therefore, it is proved that the defendant appellant did not perform his matrimonial obligations for more than 3 years, which is natural requirement of human being. A man who intentionally neglects his wife's physical needs, is not only abandoning his obligations, but also manifests a lack of understanding of the true nature of what Islam entails in practice.
7. Allah the Almighty says in Holy Book Quran-e-Kareem "And live with them in kindness (4.19) disregarding one spouse's natural need is obviously not kindness similarly. Allah the Almighty tells us "women have rights similar to those of men equitably". (2.228).
8. As stated above, a husband is duty bound to fulfill the sexual needs of his wife. This right of wife should always be under mood in the light of following hadith of Holy Prophets (P.B.U.H) saying:-
9. "The most perfect of believers are those most perfect in character, and best amongst you are the best of you to your spouses."
10. When informed of Abdullah Ibn Am'r neglecting of his wife's conjugal rights, the Prophet (P.B.U.H) reminded him that
11. "Your wife has a right over you."
12. Imam Ghazali states in his ( ) that:
13. "A man should make love to his wife every four nights, though he should make love to her more or less than this, according to the amount, she need to remains chaste and free of want since it is obligatory for husband to enable her to keep chaste."
14. The right to matrimonial obligations belongs to both the husband and wife, and it is misconception that in Islam only the husband has this privilege. The wife has as much right as husband. A husband religiously obliged to fulfill the sexual needs of his wife and not deprive her of this right. Refusing or neglecting without any genuine reasons or excuse from performing marital obligations is forbidden in Islam.
15. In light of above mentioned saying it becomes clear that a husband is duty bound to fulfill the marital obligations of his wile and he cannot neglect her without any genuine reasons or excuse from performing marital obligations. Under Section 2 (iv) of the Dissolution of Muslim Marriages Act, 1939, if a husband without reasonable cause neglects his wife and fails to perform his marital obligations for a period of three years, the wife shall be entitled to obtain decree for dissolution of her marriage. Section 2(iv) of the Dissolution of Muslim Marriages Act, 1939 is reproduced as under:-
16. "2. Grounds for decree for dissolution of marriage.- A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-
(i) .
(ii) ..
(iii) .
(iv) That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;"
17. The learned Court below rightly observed that under the Dissolution of Muslim Marriages Act, 1939, if a husband fails to perform his matrimonial obligations for 3 years without any reasonable cause, the wife is entitled to the decree for dissolution of marriage. The learned Court below rightly appreciated the evidence and reached at just and proper conclusion which is liable to be maintained.
18. In view of above finding no substance in this appeal, it is hereby dismissed.
19. SA/14/HC(AJ&K) Appeal dismissed.