SHER MUHAMMAD AZAD Versus ASHKAR JAN
1. SADAQAT HUSSAIN RAJA, J.--- The captioned appeals have been filed against the judgment and decree dated 30.07.2017, whereby, the suit filed by the appellant, herein, for restitution of conjugal rights was dismissed whereas the suits filed by Ashkar Jan respondent, herein, for dissolution of marriage, payment of dower and maintenance allowance were decreed in her favour. As both the appeals arise out of common judgment and raise questions of fact and law, hence, were heard together and are decided through this single judgment.
2. Precise facts of suit filed by appellant, herein, for restitution of conjugal rights are that Nikkah of the spouses was solemnized in lieu of dower amounting to Rs. 2.50,000/- out of which Rs. 50,000/- was paid promptly. After marriage defendant/respondent remained populated with the plaintiff and remained performing conjugal rights. It was further stated that defendants Nos. 2 to 4 called defendant No.1 to their home and did not come back to home. It was further contended that the plaintiff/appellant tried to populate her but failed due to defendant Nos. 2 to 4. It was further submitted that the plaintiff/appellant wants to populate defendant No. 1/respondent.
3. In the suits filed by the respondent it was stated that defendant had already contracted two marriages and one of his wife namely Salma took divorce through Court. It was further submitted that the defendant has three daughters out of wedlock of his first wife, who are elder than the plaintiff/respondent. It was further submitted that defendant neither paid dower nor maintenance allowance and also snatched the gold ornaments gave at the time of Nikah. It was further contended that defendant No. 1 has divorced the plaintiff orally, hence, she cannot live with her. The suits were contested by the other side by filing written statements and refuted the claim of the plaintiff and submitted that he wants to populate the plaintiff and is ready to pay maintenance and dower if she populates with him. He further submitted that he never divorced her and the whole story narrated by the plaintiff is concocted.
4. The learned trial Court consolidated all the suits and framed, issues in light of the pleadings of the parties and provided them an opportunity to lead evidence in support of their respective claim. At the conclusion of the proceeding, the learned trial Court vide judgment and decree dated 30.07.2015 dismissed the suit filed for restitution of conjugal rights and decreed the suits filed for dissolution of marriage on the basis of Khullah and also declared the plaintiff entitled to dower amounting to Rs. 2,00,000/- and also decreed the suit filed for maintenance. The aforesaid judgment and decree has been challenged through the captioned appeals.
5. The learned Advocate appearing for the appellant contended that the learned trial Court has not recorded the judgment in accordance with law and failed to appreciate the evidence in its true perspective. The learned Advocate further submitted that appellant has proved his case through oral evidence as well as documentary but the learned trial Court did not apply its judicial mind and reached at erroneous conclusion. The learned Advocate further contended that appellant tried to populate the respondent but defendant refused to populate and left the home of the appellant out of her will and consent. The learned Advocate further argued that defendant failed to prove the factum of cruelty and oral divorce but despite that the trial Court granted decree for dower and dissolution of marriage which is illegal, arbitrary and without lawful authority.
6. The learned Advocate appearing for the other side contended that the respondent has proved her stand of cruelty and oral divorce before the trial Court, hence, the learned trial Court while granting decree in her favour has not committed any illegality. The learned Advocate further argued that as no illegality has been committed by the trial Court while passing the impugned judgment, hence, the appeals may be dismissed with costs.
7. I have heard the learned Advocates for the parties and gone through the record of the case.
8. A perusal of record reveals that the nikkah of the spouses was solemnized in lieu of dower Rs. 2,50,000/- out of which Rs. 50,000/- was paid promptly and Rs. 2,00,000/- was deferred on part of appellant, herein. Ashkar Jan, respondent, herein, sought dissolution of marriage on the basis of cruelty and oral divorce. She produced only one witness namely Muhammad Sharif in support of her claim who deposed that Ashkar Jan told him that her husband has divorced her. This witness did not say single word regarding mal-treatment with the plaintiff/ respondent, herein. She also got recorded her statement before the Court and stated that she went to her parents home out of her will. She admitted that defendant/appellant, herein, tried to populate her but she refused because he has divorced her. She also stated that she did not want to populate with appellant at all costs. She also deposed that behavior of defendant/appellant was good during the period she remained populated. The statement of the plaintiff/respondent is reproduced as under:--
9. The factum of oral divorce and mal treatment is not proved from the statement of Muhammad Sharif as well as statement of plaintiff/respondent. Whereas from the evidence produced by plaintiff/ appellant it is proved that Ashkar Jan went to the home of her parents out of her free consent and refused to populate with the appellant despite hectic efforts of the appellant.
10. Law is well settled that if a wife refuses to live with her husband and left the house of her husband, she is not entitled to maintenance, as has been held in 2014 SCR 504. As stated above, it is proved from the evidence produced by the appellant, herein, as well as statement of Ashkar Jan, respondent, herein, that she left the home of appellant without any reason and refused to perform her matrimonial obligations despite efforts on the part of appellant, therefore, she is not entitled to the maintenance.
11. So far suit for restitution of conjugal rights is concerned, as stated above the defendant/respondent, herein, has refused to populate with plaintiff, therefore, she cannot be compelled to populate. The law of the land on this point is also to the same effect.
12. So far suit for recovery of dower is concerned, defendant/appellant himself admitted that Rs.2,00,000/- is outstanding and this fact is also proved from evidence produced by the parties. Even otherwise, it is well settled law that admitted facts need not to be proved 2000 YLR 2911, 2014 SCR 1549.
13. In view of above, the appeals stand disposed of in the manners that decree for dissolution of marriage is granted in favour of plaintiff Ashkar Jan on the basis of Khulah, resultantly she will not claim remaining dower amounting to Rs.200000/-. The suit filed for maintenance, in light of above discussion is dismissed and the counter suit filed by appellant herein, for restitution of conjugal rights is also dismissed. A copy of judgment shall be annexed with the connected appeal.
14. MQ/20/Sh.C. (AJ&K) Order accordingly.