Urooj Fatima Vs Khuram Shehzad

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) W.P. No.7 t3-N2024

Urooj Fatima.

(Petitioner/s)

VS

Khurram Shehzad and others

(Respondent/s)

Present Mr. Nazakat Ali Tanoli, Advocate, for petitioner.

Mr. Sajjad Ahmad Abbasi, Advocate, for respondent No.l.

Date of hearing: 28.04.2025

JUDGMENT

SADIO ALL J.- Through the instant writ petition, the petitioner has prayed as under;

"It is, therefore, humbly prayed that on acceptance oJ the instant writ petition, the impugned consolidated judgment and degree dated 29.05.2024 passed by learned respondent No. j may graciously be set aside while the impugned consolidated iudgment and decree dated 23.02.2023 pass by respondent No.l may kindly be modified/ set aside to the extent of restitution of coniugal rights and suit of petitioner plaintiff may kindly be degreed as prayedfor".

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2.Precisely stated, the facts leading to the filing of the instant writ petition ate that the respondent/plaintiff filed a suit for restitution of conjugal rights and recovery of gold ornaments

weighing 05 tolas, detail of which if fully mentioned in the heading of the plaint which suit was duly contested by respondent/defendant by filing written statement. In view of the divergent pleadings of the parties, the leamed trial Court framed issues, and thereafter the parties were asked to produce their evidence, which they have accordingly led. Thereafter, learned trial Court, after hearing arguments of learned counsel for both the parties, partially decreed the suit of respondent/plaintiff vide judgment and decree dated 23.02.2023. Both the parties being dissatisfied with the aforesaid judgment and decree, preferred their respective appeals and the learned appellate Court dismissed both the appeals vide impugned judgment and decree dated 29.05.2024 which judgment and decree has now been challenged by the petitioner through the instant writ petition.

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3.Arguments heard and record perused.

I. The record demonstrates that the respondent/plaintiff instituted a suit seeking the restitution of conjugal rights, along with the recovery of five tolas of gold as dower. Additionally, the suit sought relief in the alternative, praying for the dissolution of marriage through Khula in the event that reconciliation was deemed impossible. The

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respondenyplaintiff contended that he had consistently maintained the petitioner/defendant with due care and respect. However, despite his efforts, the petitioner/defendant allegedly opted for self-desertion without any justifiable cause. In funher support of his claim, the respondentlplaintiff stated that he made numerous attempts to resolve the dispute through the convening of multiple jirgas aimed at reconciliation.

Despite these efforts, the petitioner/defendant refused to rejoin his matrimonial company or to cohabit with him again. Conversely, the petitioner/defendant strongly contested the version put forth by the respondent/plaintiff. She alleged that she had been subjected to acts of cruelty at the hands of the respondent/plaintiff, which rendered the marital J relationship intolerable

5 A careful examination of the available record reveals that during the yeat 2021, the respondent/plaintiff returned to Pakistan after a stay abroad. Upon his return, reconciliation proceedings were conducted on 1lth January 202I, wherein efforts were made to resolve the matrimonial discord and to bring the parties back together. However, shortly thereafter, on 15th January 2021, merely four days following the reconciliation attempt, the respondent/

plaintiff solemnized a second marriage. Aggrieved by this development, the petitioner/defendant filed a criminal complaint against her husband, the respondent/plaintiff, for contracting a second marriage without fulfilling the conditions required under the Muslim Family Laws Ordinance, 1.961. The learned Judicial Magistrate-I, Havelian, District Abbottabad, after due proceedings, found the respondent/plaintiff guitty under Section 6(5)(b) of the said Ordinance and convicted him vide order dated 08.06.2023.

O. The act of contracting a second marflage during the subsistence of the first marriage, and significantly, at a time when litigation concerning conjugal rights was actively pending, unmistakably reflects the respondent/plaintiffs utter disregard for the sanctity and obligations of the matrimonial bond.

His conduct demonstrates insensitivity to the emotional and psychological well-being of the J petitioner/defendant. Judicial precedents have consistently recognized that such behavior on the part of the husband amounts to mental cruelty in the eyes of law. It constitutes a grave breach of the marital duties of fidelity, trust, care, and mutual respect that form the foundation of the matrimonial relationship'

Z. Furthermore, the second marriage not only signifies a violation of legal and ethical obligations but also deepens the betrayal faced by the petitioneridefendant, rendering the marital relationship irretrievable. It conclusively establishes that the wife's earlier withdrawal from the matrimonial home was neither capricious nor unjustified, but rather a consequence of the intolerable environment created by the respondent/plaintiffs misconduct. In view of these facts, it is evident that the decree for restitution of conjugal rights previously granted in favor of the respondent/plaintiff was effoneous and stands vitiated by the subsequent conviction and the proven cruelty infl icted upon the petitioner/defendant.

g. Additionally, the petitioner/defendant is legally entitled to claim maintenance from the respondentlplaintiff. Given that cruelty on part of the respondent/plaintiff has been duly established, and df considering his act of contracting a second marriage during the pendency of the dispute, it is held that the petitioner/defendant deserves maintenance for the period beginning from the date of the second matrLage (i.e., 15.01.2021) until the date of decision rendered by the learned Trial Court, which is 23.02.2023. The respondent/plaintiffs duty to provide maintenance

subsists despite the strained relationship, especially in light of his wrongful acts that forced the petitioner/defendant to separate herself from him. The law is clear that when the conduct of the husband is characterized by cruelty, the wife's right to maintenance is preserved notwithstanding her non- cohabitation. Hence, it would be unjust and inequitable to deprive the petitioner/defendant of her entitlement to maintenance during the said period when she was, in effect, compelled by circumstances created by the respondent/plaintiff to live apart.In the case of "W Taweba Ambareen and another vs. Ati

Kivani und unother" reported as 2023 SCMR 246 the Hon'ble Apex Court has held that"

"The matrimonial bond between a man and woman is a pious relationship which plays an importont 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 ffiliation which dll' requires mutual trust, regard, respect, love and affiction with adiustments 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 lfe to the best of his

capability and capacity A man is expected to treat his wife nicely, with love and affection.

(c)Family Courts Act (XXXV of l96a)--- ----S. 5 & Sched.---Suit for restitution of conjugal rights---Approach to be odopted by Courts when deciding such suit---Husband, duty of---Scope---When a husband claims restitution of conjugal rights in response to the suit for dissolution of marriage, dower, dowry and maintenance filed by the wife, it is an onerous responsibility of the Court to see whether he is sincerely fuffilling his obligations towards his wife, rather than gratifying the urges of male chauvinism---Lodging of claim for restitution of conjugal rights should not be used as weapon to defend or obstruct the claim of dower or maintenance allowance, but must be lodged in good faith and with q bona fide intention to reconcile and rectify the issues between the spouses in order to save the matrimonial tie with magnanimity, kindness and through the fuffillment of the husband's obligations and not as a tool to fight out or frustrate the claim of maintenance allowance or dower amount.

In the case of "Dr, Farval Ma' and another vs, Khurram Shehzad Durruni and olhers" reported AS PLD 2OO5 Court 262 it has been held that;

(b)Dissolution of Muslim Maruiages Act (VIU of 193e)--- ----5. 2(iia)---Muslim Family Laws Ordinance (VIII of 1961), S. 6---Grounds for decree for di s s o I ut i o n of m ar r i a g e - - - T a ki n g a ddi t i o n al w ife in contravention of the provisions of the Dissolution of Muslim Marriages Act, 1939--- Repeal of section 13 of Muslim Family Laws Ordinance (VIII of 1961) through the Federal Laws (Revision and Declaration) Ordinance, 1981 did not affict the validity and enforcement of the insertion made in the Dissolution of Muslim Marriages Act, 1939---Therefore, clause (iia) of section 2 of the Dissolution of Muslim Marriages Act, 1939 continues to be one of the valid, effictive and subsisting grounds for dissolution of marriage.

(d)Dissolution of Muslim Maruiages Act (YIII of 1939)-- ----5. 2(iia)---Muslim Family Laws Ordinance (VIII of 196l), S. 6---Family Courts Act (XXXV

of 1964), 5.5, Sched.---Grounds for decree for dissolution of marriage---Taking additional wife in contravention of the provisions of the Dissolution of Muslim Marriages Act, 1939--- Khula---Scope---In the present case when the husband (defendant) took a second wife, he contravened the provisions of the Muslim Family Laws Ordinance, 196l (Ordinonce of 1961) since neither ony application was filed nor the permission of the Arbitration Council was sought in accordance with the requirements set out under section 6 of Ordinance of 1961--- However, instead of adjudicating this ground, the appellate court had ordered the dissolution of the marriage on the basis of Khula--- Appellate court, therefore, fell in eruor by granting a decree for the dissolution of marriage on the basis of Khula when it was not sought by the wife (plaintffi nor had she given express or implied consent thereto---High Court had also not recorded any reasons in support of its conclusion to order dissolution of marriage on the ground of cruelty---Appellote court and the High Court fell in error by ordering the dissolution of the marriage between the husband and the wife on the ground of Khula and cruelty respectively---Supreme Court held that the dissolution of the marriage between the husband and the wife was on the basis of the ground described under clause (iia) of section 2 of the Dissolution of Muslim Marriages Act, 1939---Supreme Court declared that the decree of the trial court to the extent of restitution of conjugal rights was not sustainable; that the judgments ond decrees to the extent of restitution of conjugal rights and dissolution of the marriage on the ground of Khula or cruelty were illegal and accordingly set aside; that the decrees granted by the Trial Court regarding dower, dowry articles, maintenance and visitqtion schedule shall, therefore, sustain qnd were accordingly upheld.

(e)Dissolution of Muslim Marriages Act (VAI d of 1e3e)--- ----5. 2---Grounds for decree for dissolution of marriage---Cruelty by husband---Cruelty may be mental or physical.

2.In view of the foregoing discussion, the judgments and decrees passed by both the fora below, to the extent that they granted restitution of conjugal

rights and denied maintenance to the petitioner/defendant, are hereby set aside' Consequently, the judgments and decrees are modified to the extent that:

a A decree for dissolution of marriage is granted in favor of the petitioner/defendant, based on the ground of crueltY.

a The petitioner/defendant is hereby declared entitled to maintenance starting from the date the respondent/plaintiff contracted a second marriage (i.e., 15.01.2021) up to the date of the learned Trial Court's decision (i.e., 23.02.2023), and further from today, i.e., 28.04.2025, until the completion of the Iddat period."

As for the remaining reliefs and findings contained in the judgments and decrees of the learned Courts below, they are maintained and upheld, as they are found to be in accordance with law and based on proper appreciation of evidence. Order accordingly Announced

Tahir Saleem

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