Mst. Ishrat Bibi Vs Muhammad Arshad

2013 M L D 537

[Peshawar]

Before Qaiser Rashid Khan and Shah Jehan Khan Akhundzada, JJ

Mst. ISHRAT BIBI---Petitioner

Versus

MUHAMMAD ARSHAD and another---Respondents

Writ Petition No.454 of 2010, decided on 17th October, 2012.

West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Divorce on the basis of khula---Recovery of maintenance---Family Court dissolved marriage on the basis of Khula and refused to pay maintenance allowance to wife---Wife contended that when factum of cruelty was proved, marriage should not have been dissolved on the basis of Khula and she was entitled to recovery of maintenance also---Validity---Attitude of wife had made her desert her husband's house and preferred to stay with her parents, and the same could not be termed as ouster of wife on the part of husband from his house but rather a desertion on the part of wife to leave her husband's house out of her own sweet and free will---Wife was disobedient, therefore, she did not have right to claim maintenance from her husband and the same was rightly disallowed to her by Family Court---Element of cruelty and torture at the hands of husband was disproved, therefore, marriage was rightly dissolved on the basis of Khula---High Court, in exercise of constitutional jurisdiction under Art. 199 of the Constitution, declined to make factual determination or interfere in judgment passed by competent court vested with statutory powers unless there was a jurisdictional error or other legal infirmity such as arbitrariness etc. in the order assailed before High Court---Petition was dismissed in circumstances.

Muhammad Anwar Awan for Petitioner.

Syed Aamer Hussain Ziadi for Respondents.

Date of hearing: 17th October, 2012.

JUDGMENT

QAISER RASHID KHAN, J.---Aggrieved of the judgment and decree dated 28-5-2010 of the learned Civil Judge-IX/Judge Family Court, D.I.Khan, the petitioner has preferred the instant petition.

2.Succinct facts leading to the instant petition are that the Nikah of the petitioner was performed with the respondent No.1 (hereinafter referred to as the respondent) through Nikah Nama dated 25-5-2008 for a dower amount of Rs.5000 which is still outstanding against the respondent, that after 'Rukhsati', the petitioner performed her matrimonial obligations properly; that from the very beginning, the attitude of the respondent towards the petitioner was cruel and harsh but the petitioner for the sake of her as well as her parents honour continued to perform her marital duties but after a month's stay with the respondent, the latter manhandled her and after snatching her dowry articles, ousted her from his house, whereafter she is living a deserted life at her parents house and neither the respondent inquired about her nor paid her any maintenance amount and that she has developed strong hatred and aversion against the respondent and that she would prefer death rather than joining the respondent as his wife and that she is entitled to Rs.24,000 on account of 8 months maintenance at the rate of Rs.3,000 per month with effect from July, 2008 till February, 2009 along with future maintenance together with dower amount of Rs.5,000 and dowry articles worth Rs.1,48,000.

3.After the respondent was summoned, he accordingly filed his written statement on 8-10- 2009 wherein inter alia he also took the plea for restitution of conjugal rights and on the failure of pre-trial reconciliation, from the antagonistic pleadings of the parties, the following seven issues were framed:--

(1)Whether plaintiff has got cause of action and locus standi?

(2)Whether plaintiff/wife forego/give up her dower of Rs.5000 at the first night of their marriage, if so, its effect?

(3)Whether plaintiff is a disobedient wife and deserted without any reason at the instigation of her father or defendant was a cruel person who ousted plaintiff?

(4)Whether plaintiff is entitled to get maintenance allowance @ Rs.3000 per month from July, 2008 to February, 2009 and also future maintenance at the same rate?

(5)Whether at the time of marriage plaintiff brought the dowry articles as per list amounting to Rs.1,48,000 which are lying at the house of defendant and plaintiff is entitled to recover the same or value thereof?

(6)Whether plaintiff is entitled for the decree of dissolution of marriage or defendant's plea for restitution of conjugal rights is more justified?

(7)Relief.

4.The parties were directed to produce evidence and finally, the learned Family Judge vide judgment dated 28-5-2010, decreed the suit as under:--

(a)Decree of dissolution of marriage on the basis of Khulla subject to the waiver of dower of Rs.5000,

(b)Decree of maintenance only for 3 months of Iddat period @ Rs.1000 per month.

(c)Decree of dowry articles or its price to the extent of Rs.1,00,000.

(d)Plea of defendant for restitution of conjugal rights refused.

5.Learned counsel for the petitioner argued that the impugned judgment and decree is against law, facts and evidence adduced before the learned trial court; that the factum of cruelty of the respondent stood proved through cogent and strong evidence which was not contradicted during cross-examination; that the learned trial court failed to appreciate the evidence on the issue of maintenance; that though the dowry articles of the petitioner are in possession of the respondent which was proved through sufficient evidence, but the learned Family court instead decreed the same for a small sum of Rs.1,00,000; that despite the fact that the petitioner through cogent and confidence inspiring evidence proved the cruelty of the respondent but still the learned Family court granted decree for dissolution of marriage on the basis of Khulla thereby depriving the petitioner of past and future maintenance.

6.Conversely, the learned counsel for the respondent argued that the petitioner was a disobedient wife who after barely staying for a month with the respondent, did not perform her marital obligations as is expected of a wife and on her insistence, the respondent in accordance with her wishes sent her to her parents house along with his nephew; that the respondent showed every possible respect to her but the attitude of the petitioner was unbecoming of a wife and resultantly, she of her own sweet will refused to live with the respondent and thus she is not entitled to claim past and future maintenance from the respondent.

7.Arguments heard and record perused.

8.As per record, the marriage of the petitioner with respondent was solemnized on 25-5- 2008 for a dower amount of Rs.5000. According to her version, the attitude of the respondent was harsh and cruel from day one and finally, after a month's stay, she was ousted by him from his house in wearing clothes, whereafter she lived a deserted life at her parents house and the respondent neither inquired about her well being nor provided any maintenance to her during the said period and that she had thus developed a strong hatred against the respondent, so much so that she would rather prefer death that join the respondent as his wife. In support of her claim, the petitioner produced Nikah Registrar namely, Muhammad Raees-ud-Din as P.W.1, Waqas Ali as P.W.2, recorded her own statement as P.W.3 followed by her brother namely, Mujeeb as P.W.4. On his turn, the respondent/defendant produced Muhammad Yaseen as DW-1, Muhammad Zubair as DW-2 and the respondent appeared himself as DW-3. In her statement, the petitioner alleged that on the very first night of the marriage, the respondent demanded that her parents should provide him a sum of Rs.8,00,000 for the purpose of business and that on her inability to provide the said sum, the attitude of the respondent turned harsh and cruel and he started giving her physical and mental torture through abuses and also threatened her with Talaq. However, the same allegations do not find mention in the suit filed by her and the same is presumably an afterthought with a view to lend a degree of credence to her case. Her real brother namely; Mujeeb appeared in the court as P.W.4 and while in his examination in chief, he narrated a stereotype story that the petitioner was ousted by the respondent from his house but in his cross-examination, he spilled the beans when to a question, he stated that the respondent is engaged in embroidery work and that he is a "shareef" i.e. noble and good natured person and that his sister i.e. the petitioner had come to her parents house in the company of the nephew of the respondent. Moreover, in respect of her alleged torture at the hands of the respondent, the petitioner except for her own statement, has not brought an iota of evidence in that regard. It otherwise does not appeal to a prudent mind that why in a short span of one month, the attitude of the husband towards his wife would turn so cruel and harsh and that too, in a situation when they are real cousins and that the petitioner developed so strong hatred and aversion towards the respondent whereby she was not ready to reconcile herself with the idea of living with him as his wife and rather preferred death than to live with him. Thus we can safely gather from the available record that it was the attitude of the petitioner which made her desert her husband's house and preferred to stay with her parents. The same cannot be thus termed as ouster of the petitioner on the part of the respondent from his house but rather a desertion on the part of the petitioner to leave her husband's house out of her own sweet and free will. Thus being a disobedient wife, she had no right to claim maintenance from the respondent and the same was rightly disallowed to her by the learned trial court. Moreover, as the element of cruelty and torture at the hands of the respondent stood absolutely disproved, therefore, the marriage was rightly dissolved on the basis of Khulla.

9.So far as the dowry articles are concerned, it is in the cross-examination of the respondent when he appeared as DW-3 that the petitioner had brought dowry articles with her at the time of marriage. The respondent also admitted that the petitioner was taken to the house of her parents by his nephew. The respondent stated nothing that the dowry articles were taken by the petitioner along with herself. In such a situation, it can be safely held that the dowry articles are in possession of the respondent. While fixing a sum of Rs.1,00,000 to be the price of dowry articles, the learned Family court has given cogent and convincing reasons for the same. While sitting in the writ jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, we would not make factual determination or interfere in the judgment passed by a competent court vested with statutory powers unless there is a jurisdictional error or other legal infirmity such as arbitrariness and others, in the order assailed before the High Court.

10.For the reasons mentioned above, there is no substance in the instant petition which is hereby dismissed.

MH/432/P Petition dismissed.