ARSHAD MEHMOOD Versus NASHAD NAZ

KHWAJA MUHAMMAD NASIM, J.--- The captioned appeal by leave of the Court, has been directed against the judgment and decree of the Shariat Appellate Bench of the High Court ( hereinafter to be referred as High Court ), dated 29.03.2024, passed in Family Appeals Nos. 93 and 96 of 2020.

2. The succinct facts of the case, leading to the filing of instant appeal are that the plaintiff, Nashad Naz filed a suit for jactitation of marriage and alternatively, for dissolution of marriage on the grounds of cruelty, non-payment of maintenance allowance, and non-performance of marital obligations, against the defendant Arshad Mehmood in the Court of Additional District Judge/Judge Family Court Dadyal, alleging therein, that her marriage with the defendant/appellant, herein, was solemnized on 21.09.2000, in England. She claimed that although defendant's cruelty began from the very first day of their marriage, but it intensified when she gave birth to daughter. The defendant had desire of a son and was displeased with the birth of a daughter, which exacerbated the conflict. This led to regular quarrels and taunts, culminating in the plaintiff and their daughter being expelled from the defendant's home. It was further alleged that the dispute was brought before Brimingham Masjid Trust, who after hearing the parties issued divorce certificate on 13.08.2015 and also issued a certificate for non-payment of dower, hence, she is not wife of defendant. In alternate, she also sought decree for dissolution of marriage. The defendant refuted these claims in a written statement, asserting that in November 2017, when he returned to Pakistan, the plaintiff left the home without any cause, taking 4000 and gold ornaments. Despite efforts to reconcile, the plaintiff did not return. Arshad Mehmood also filed a counter suit for restitution of conjugal rights, which was contested by the defendant. After consolidating both suits, the trial Court framed issues based on the pleadings, allowed evidence to be presented, and after necessary proceedings, decreed the suit for dissolution of marriage on the ground of Khula in lieu of gold ornaments weighing 13 tola, dismissing the counter-suit for restitution of conjugal rights vide judgment and decree dated 15.09.2020. Both the parties filed separate appeals before the High Court. After necessary proceedings, the learned High Court, through the impugned consolidated judgment, dismissed the appeal filed by Arshad Mehmood, whereas the appeal filed by Nashad Naz was accepted and she was declared entitled to a decree for dissolution of marriage on the basis of cruelty, non-payment of maintenance allowance and non-performance of marital obligations. This judgment of the learned High Court, is the subject matter of the captioned appeal by leave of the Court.

3. Mr. Reaz Ahmed Alam, the learned Advocate, representing the appellant contended that the plaintiff/respondent sought dissolution of marriage on the grounds of cruelty, non-payment of maintenance allowance, and non-performance of marital obligations but failed to substantiate these elements, particularly the factum of cruelty, with cogent and convincing evidence. He further contended that the plaintiff/respondent did not appear before the trial Court to record her statement and the witnesses produced in her support, had never visited the United Kingdom and, therefore, lacked personal knowledge regarding the alleged cruelty physical or mental. He argued that the learned Judge Family Court, upon proper appreciation of the evidence, rightly concluded that the plaintiff/respondent failed to establish cruelty as well as non-payment of maintenance allowance and consequently dissolved the marriage on the ground of khula . The learned Advocate, zealously argued that the learned High Court, while passing the impugned judgment, committed grave error of misreading and non-reading of the record. The learned High Court has dissolved the marriage on the grounds of cruelty, non-payment of maintenance allowance, and non-performance of marital obligations, erroneously while giving weight to the testimony of the witnesses produced by the plaintiff/respondent and overlooking the evidence produced by the appellant. This erroneous approach led to an incorrect conclusion, thereby occasioning a miscarriage of justice. Lastly, the learned Advocate, prayed for acceptance of appeal.

4. Conversely, Malik Qadeer Hussain, the learned counsel for the respondents, vehemently opposed the arguments advanced on behalf of the appellant, while submitting that the impugned judgment passed by the learned High Court is quite in accordance with law and warrants no interference by this Court. He further submitted that the plaintiff/respondent successfully established that the defendant/appellant was displeased with the birth of a daughter, as he had desired a son, and consequently ousted the respondent (wife) from his house. Furthermore, the record sufficiently proves the non-payment of maintenance allowance as well as the non-performance of marital obligations by the appellant. Thus, the learned High Court committed no illegality while dissolving the marriage on these grounds. The learned counsel contended that the appellant has failed to demonstrate any legal infirmity or jurisdictional error in the impugned judgment, and therefore, no interference by this Court is warranted under the law, making the present appeal liable to be dismissed.

5. We have considered the arguments advanced on behalf of the learned Advocates representing the parties and gone through the record made available along with the impugned judgment. The matter in hand relates to the dissolution of marriage. The main disagreement or source of discord between the parties is whether respondent No.1 was entitled to claim a decree for dissolution of marriage on the ground of cruelty, non-payment of maintenance allowance and non-performance of marital obligations. The learned Judge Family Court dissolved the marriage on the ground of Khula in lieu of 13 tola gold ornaments, however, on appeal, the learned High Court through the impugned judgment dissolved the marriage on the ground of cruelty, non-payment of maintenance allowance and non-performance of the marital obligations.

6. The primary and sole argument of the learned Advocate, representing the appellant is that the respondent did not appear before the trial Court for recording her statement and the witnesses produced by her also never visited UK, therefore, the learned High Court was not justified to rely upon the testimony of the witnesses of the respondent and dissolve the marriage, particularly on the ground of cruelty. It may be observed here that the matrimonial bond between a man and woman is a pious relationship which plays an important part and also nurtures between the husband and wife happiness and compassion and the lineage and family heredity also depends on it. Connubial affairs are based on gentle, human and emotional affiliation which requires mutual trust, regard, respect, love and affection with adjustments with the spouse, and the relationship should also be in accordance with social norms. Mental cruelty is a conduct and behavior which inflicts upon the wife such mental pain and anguish making it impossible for her to continue the matrimonial relationship which is also a state of mind caused due to the behavioral pattern of the husband, but this is required to be determined by the Court according to the facts and circumstances of each case and must be more serious than the ordinary, petty or trivial issues or disputes of married life which usually occur in day- to-day married life. According to the injunctions of Islam, the husband is obligated and responsible to provide food, clothing, accommodation and all the other necessities of life to the best of his capability and capacity. A man is expected to treat his wife nicely, with love and affection. In the present case the plaintiff/respondent herein, sought the dissolution of marriage on the grounds of cruelty, non-payment of maintenance allowance and non-performance of marital obligations. In paragraphs Nos. 4 and 5 of the plaint the plaintiff/respondent alleged as under:-

A perusal of the above reveals that the plaintiff levelled multiple allegations against the defendant, asserting that the marital relationship became strained following the birth of the minor daughter, Fozia Sultana, as the defendant/appellant had desired a son. It was alleged that after the birth of the minor, the defendant subjected the plaintiff to taunts and mistreatment and ultimately deserted her along with the minor daughter in December 2003. The plaintiff further claimed that since her desertion, the defendant neither attempted reconciliation nor provided maintenance for her and the minor daughter. She averred that due to the defendant's cruel conduct, she developed an aversion towards him and, therefore, did not wish to continue the marital relationship, seeking dissolution of marriage on the grounds of cruelty, non-payment of maintenance, and non-performance of marital obligations. In response, the defendant, in his written statement, denied the allegations, asserting therein that the plaintiff had left the matrimonial home on her own volition. Specifically, in reply to paragraph 5, he alleged that he made sincere efforts to reconcile with the plaintiff and provide maintenance, but she refused to accept the same. For ready reference, paragraph 5 of the written statement is reproduced hereinbelow.

Upon juxtapose appraisal of the pleadings (supra) as well as the evidence adduced by both the parties, particularly the defendant/appellant, it is evident that the plaintiff's desertion from the appellant's residence in the year 2003 stands admitted by the defendant/appellant. Likewise, the non-payment of maintenance allowance to the plaintiff is established, as the defendant himself asserted that he attempted to provide maintenance, but the plaintiff refused to accept the same. Furthermore, it is evident that during the period of separation, the defendant/appellant made no attempt to reconcile with the plaintiff; instead, he contracted the second marriage, followed by a third. The appellant's dissatisfaction over the birth of a minor daughter and not maintaining her, is also substantiated by his own statement made during the course of cross-examination, wherein he deposed that:-

In view of the above, even if, for the sake of argument, the testimony of the witnesses produced by the plaintiff is ignored, as contended by the learned counsel for the appellant, the pleadings of the parties and the evidence adduced by the defendant/appellant himself sufficiently establish that he failed to discharge his obligation of providing maintenance allowance to the plaintiff and also neglected to fulfill his marital duties. It may be observed here that the Dissolution of Muslim Marriages Act, 1939, consolidates the provisions of Muslim Law relating to suits for dissolution of marriage by a women married under Muslim Law. According to section 2 of this Act, a woman married under Muslim Law is entitled to obtain a decree for the dissolution of her marriage on any one or more of the grounds mentioned in this section. For ready reference section 2 of the Dissolution of Muslim Marriages Act, 1939, is reproduced hereunder:-

"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;

(iii) That the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) That the husband was impotent at the time of the marriage and continues to be so;

(vi) That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) That she having been given in marriage by her father or other guardian before she attained the age of [sixteen] years; repudiated the marriage before attaining the age of eighteen years;

Provided that the marriage has not been consummated;

(viii) That the husband treats her with cruelty, that is to say,-

(a) Habitually assaults or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) Associates with women of evil repute or leads an infamous life, or

(c) Attempts to force her to lead an immoral life, or

(d) Disposes of her property or prevents her exercising her legal rights over it, or

(e) Obstructs her in the observance of her religious profession or practice, or

(f) If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

(ix) On any other ground which is recognized as valid for the dissolution of marriages under Muslim Law."

From the perusal of the above provisions, it appears that non-providing of maintenance allowance, and non-performance of marital obligations, are separate grounds, on which the decree for dissolution of marriage can be passed. It is a settled principle of law that non-providing of maintenance is itself a form of cruelty. Once it is found that wife is entitled to get the decree on the ground of non-payment of maintenance allowance, the marriage can be dissolved on that ground. We are fortified in our from the case reported as Mehvish Kazmi v. Parvaiz Hussain and others (PLD 2022 SC(AJK) 1) , wherein, it was observed by this Court as under:-

"After going through the above stated provisions, it is clear that non-providing of maintenance is itself a form of cruelty which serves as one of the grounds on which the decree for dissolution of marriage can be passed. As it is proved from the evidence that she has not been paid maintenance from the last two years, therefore, in our estimation, the learned Family Judge has not committed any illegality while handing the judgment and decrees. Moreover, the element of cruelty cannot be ruled out, if any of the grounds mentioned in section 2 of the Dissolution of Muslim Marriage Act, 1939, is proved, the decree for dissolution of marriage can be passed. Once it is found that wife is entitled to get the decree on the ground of non-maintenance, the marriage can be dissolved on that ground."

7. In view of the forgoing, we are of the unanimous opinion, that the learned Judge Family Court failed to appreciate the record in its true spirit and fell in error of law while dissolving the marriage on the ground of khula . The impugned judgment passed by the learned High Court, rectifying the error committed by the learned Judge Family Court is based on sound and sagacious reasons, as well as proper appreciation of the record, hence, the interference by this Court is not warranted.

Resultantly, finding no force in this appeal, the same stands dismissed. No order as to costs.

SA/48/SC(AJ&K) Appeal dismissed.