WAHID BAKHSH Versus SUGHRAN MAI
MUHAMMAD MUNIR KHAN, J .‑‑ This Intra‑Court Appeal No. 5 of 1981 arises from the judgment of learned Single Judge, whereby, he on 2‑2‑1981 dismissed in limine Writ Petition No. 103 of 1981 filed by Wahid Bakhsh appellant herein against Mst. Sughran Mai and others.
2. The facts leading up to this appeal in brief are that Mst. Sughran Mai filed a suit for dissolution of her marriage with Wahid Bakhsh appellant herein on various grounds. The suit was contested and following issues were framed:‑---
(1) Whether the defendant has treated the plaintiff‑petitioner with cruelty? O.P.P.
(2) Whether the defendant has not paid maintenance to the plaintiff‑petitioner for a period over two years? O.P.P.
(3) Whether the defendant No.l has misappropriated the ornaments of the plaintiff‑petitioner? O.P.P.
(4) Whether the defendant has levelled false charges of adultery against the petitioner? O.P.P.
(5) Whether the plaintiff‑petitioner is entitled to 'Khula', if so, on what consideration? O.P.P.
(6) Relief.
Issues Nos. 1, 3, 4 and 5 were decided against the plaintiff‑respondent No. 1. On issue No.2, the Court held that the defendant had not paid the maintenance to the plaintiff for a period of over two years and consequently, decreed the suit and dissolved the marriage of Mst. Sughran Mai respondent No.l with Wahid Bakhsh appellant herein. Feeling aggrieved, the appellant /husband moved Writ Petition No. 103 of 1981 which was dismissed in limine on 2‑2‑1981. Hence this Intra‑Court Appeal.
3. The learned counsel for the appellant contended that issues Nos. 1, 3, 4 and 5 having been found against Mst. Sughran Mai, there was no justification to decree the suit on the basis of the finding on issue No.2 in favour of respondent/wife.
4. After hearing the learned counsel and going through the record we are not inclined to agree with the learned counsel, inasmuch as the marriage can be validly dissolved on the proof of issue No.2 alone. Independently and individually this issue, if found in favour of the wife earns dissolution of marriage. Section 2 of the Dissolution of Muslim Marriages Act, 1939 reads as follows:‑
"(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) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;
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5. We also find that Mumtaz P.W.1, Mushtaq P.W.2 and Mst. Sughran Mai herself have stated that the husband /appellant failed to maintain her for about three years. On the other hand, Amir Bakhsh D.W.1, Ghulam Abbas D.W.2 and Wahid Bakhsh D.W.3 appellant, have stated that 11 years before, the plaintiff was taken away by her father and she never returned. The appellant /husband has not produced any reliable evidence to the effect that the efforts for bringing her back to the house of her husband were made but she refused to live with the husband. To our mind, it is not a case of no evidence and the writ petition before the learned Single Judge; involved the appreciation of the question of fact. Therefore, the learned Single Judge, has rightly observed in para. No.2 of the impugned order that 'the finding of fact recorded by the learned Judge is based on appreciation of evidence brought on the record. It is hard to displace it in writ jurisdiction by this Court. The inference drawn by the learned Judge is riot perverse'. The order passed by the learned Single Judge is fair and quite legal.
For what has been stated above there is no force in this appeal and the same is dismissed in limine.
A.A./W‑32/L Appeal dismissed.