MUHAMMAD JAMEEL vs Mst. SARWAR JEHAN AND 2 Other
The petitioner sought leave to appeal against the order of the High Court which dismissed his writ petition challenging a decree for dissolution of marriage passed by the Appellate Court in favor of the respondent-wife. The core legal question concerned whether the marriage was dissolved on the basis of Khula, thereby necessitating the conditional restoration of benefits received by the wife, or on the ground of non-maintenance for a statutory period. The Supreme Court held that the marriage was validly dissolved on the ground of the husband's failure to maintain the wife for more than two years without any fault on her part, rather than on the basis of Khula. Consequently, the question of the return of marital benefits did not arise. The key principle laid down is that where a decree of dissolution of marriage is founded upon substantiated grounds of non-maintenance rather than Khula, the requirement for the conditional restoration of benefits does not apply, and the High Court's refusal to interfere with such concurrent factual findings warrants no appellate interference.
- Whether a decree for dissolution of marriage based on non-maintenance requires the conditional restoration of benefits received by the wife?
- Can the High Court's refusal to interfere with a decree of dissolution of marriage be challenged on the ground of Khula when the lower appellate court rested its decision on non-maintenance?
- Whether failure to maintain the wife for more than two years constitutes a valid ground for the dissolution of marriage?
ORDER
M. S. H. QURAISHI, J.-The petitioner seeks leave to appeal from the order of the High Court dated 17-9-1981, dismissing his writ petition, filed to challenge a decree of dissolution of marriage which the Appellate Court had passed by reversing the decree of dismissal of the suit. The suit had been instituted by respondent Mst. Sarwar Jehan seeking dissolution of her marriage with the petitioner on grounds of cruelty, disposing of her properties without her consent and his failure to maintain her for more than two years. The petitioner had contested the suit and denied the allegations. The issues that were framed, were found against her by the Family Court which dismissed the suit. The Appellate Court, however, found that the respondent had been living away from the petitioner for the last six years, during which period he had failed to maintain her or to adopt any amicable course to achieve a re-conciliation, and taking into consideration the overall circumstances of the case, came to the view that "the relationship between husband and wife have become so strained and embittered that it appears the same to have reached almost a point of no return" and that "this marriage has broken down and there appears no future prospects that the parties would be able to live harmoniously as hus--band and wife within the limits of God". The Appellate Court, there--fore, allowed the respondent's appeal and granted a decree dissolving the marriage. Before the High Court, it was urged that the decree passed by the Appellate Court, being on the basis of Khula` such decree could only be conditional upon restoration of the benefits received by the wife in consideration of the marriage. The plea was repelled upon the view that "the dissolution of the marriage between the parties has taken place not on the ground of Khula` but the marriage has been dissolved on the basis of non-maintenance of the respondent No. 1 (wife) by the Petitioner for more than two years for no fault on her part".
2. The same point is being raised before us. It is pointed out that the petitioner had, in his written statement as well as in hi: evidence, given description of the articles of jewellery and clothing given by him to the respondent at the time of the marriage. The respondent had, however, stated that she had never seen them. It to be noted that the parties had not been at issue on the questions Khula` that as observed by the High Court the Appellate Court has dissolved the marriage on the basis of non-maintenance of the respondent for over two years and that the question of the return of the benefits had not been a ground in the writ petition. In the circumstance: there is no proper justification for interfering with the judgment of the High Court.
3. Even otherwise, the reluctance of the High Court in the circumstances to interfere with the decree is not inconsistent with the policy of the law which confers a finality on such decree. We, therefore, see no merit in this petition, which we accordingly dismiss.
Cited by 1 case
- Mst. SHAHNAZ KHAWAJA vs RIAZ NASIR KHAWAJA and anothers 1999 MLD 2768