1. This appeal has been directed against a decision and decree of learned Judge Family Court dated 21.11.2008, whereby a decree for dissolution of marriage was passed in favour of Respondent No, 1 against the appellant and the suit for restitution of conjugal rights filed by appellant was dismissed.
2. The facts briefly stated are that Mst. Farhat-un-Nisa, respondent herein, filed a suit for dissolution of marriage on basis of cruelty, non-performance of marital obligations, non-payment of maintenance and dower alongwith a plea of `Khulai in alternative on 16.6.2007 before Judge Family Court Muzaffarabad. The appellant contested the suit and the allegations leveled in the plaint were refuted.
3. The appellant also filed a suit for restitution of conjugal rights on 13.10.2008 when the suit for dissolution of marriage was on its final stage. However, the learned Judge Family Court framed the following issues in the light of the pleadings of the parties on 29.1.2008:-
1. Whether the plaintiff is entitled to a decree for dissolution of marriage on basis of cruelty, non- performance of marital obligations and non-payment of maintenance and dower, if yes then how?
OPP
2. Relief. , The Respondent No, 1 entered into the witness box and also produced Saghir Ahmad, Muhammad Naseem Khan and Maqbool-urRehman as her witnesses in support of her case. On the contrary Kabeer Hussain, appellant, appeared as witness.
4. The learned Judge Family Court after hearing the arguments passed a decree for dissolution of marriage in favour of Respondent No, ,1 against the appellant on basis of `Khula' and also dismissed the suit for restitution .of conjugal rights vide its decision dated 21.11.2008. Hence, this appeal.
5. Abdullah Shah Masoodi, the learned Counsel for the appellant vigorously argued that because of the criminal litigation, the Respondent No, 1 remained populated with appellant for twenty-two days only; therefore, the question of cruelty does not arise. The learned Counsel pointed out that the Respondent No, 1 has not taken any plea for *recovery of her dower; therefore, the Court below committed an illegality while ordering deduction of dower money in `Khula'. The learned Counsel also submitted that the case has attained finality from the Supreme Court; therefore, the suit filed by Respondent No, 1 is not maintainable but the learned Judge Family Court did not pay any attention towards the aforesaid aspect of the case; therefore, the impugned decision and decree are not sustainable.
6. On the contrary, Ch. Shaukat Aziz, the learned Counsel for the respondent contended that Respondent No, 1 has categorically pointed out in her plaint that the appellant neither paid her dower nor provided her any maintenance but the aforesaid averment was not specifically denied in the written statement. The learned Counsel further argued that the Respondent No, 1 has clearly averred in her suit about the mental torture; therefore, to prove the cruelty the proof of physical violence is not necessary. The learned Counsel pointed out that the Respondent No, 1 is fourty-two years old and at the time of abduction she was thirty-three years old but in a period of nine years the spouses could not populate and they have been engaged in civil and criminal litigations; therefore, the Court below has rightly chosen to annul the marriage tie on basis of `Khula'. The learned Counsel maintained that the case was decided by the Apex Court on a technical ground and not on merits, even otherwise a suit for dissolution of marriage can be instituted whenever afresh cause of action arises.
7. In the light of arguments addressed at the Bar, I have carefully perused the record and the impugned decision. It is admitted on the record that Respondent No, 1 was abducted in year 2000 by appellant and she remained populated with him for twenty-two days only. Meanwhile, the parties have been filing civil and criminal proceedings against each other. The Respondent No, 1 has produced Saghir Ahmad her brother, Muhammad Naseem. Khan her brother-in-law and Maqbool-ur-Rehman another witness. A careful perusal of the evidence and statements of the parties reveals that there is no ray of hope for reconciliation and population of the spouses and the Respondent No, 1 does not want to live with appellant at any cost. In this regard, she has categorically stated that she cannot think of populating with the appellant and she wants to annul the dirty relation. She also deposed about non-payment of dower but the aforesaid statement was not challenged in cross-examination neither the appellant recorded anything about payment of dower in his suit nor specifically denied the fact of non-payment of dower in his written statement.
8. Similarly, Maqbool-ur-Rehman, a witness for the Respondent No, 1, testified that the appellant neither paid dower nor maintenance to Respondent No, 1 and furthermore the population between the spouses is not possible but the aforesaid statement was also not challenged in cross- examination by the appellant; therefore, it will be deemed to be admitted by the appellant. (2002 SCR 288).
9. I do not find any substance in this argument of the learned Counsel for the appellant that the Respondent No, 1 is debarred to bring afresh suit against the appellant. (Firstly), the previous suit filed by the Respondent No, 1 was dismissed by the Apex Court on point of limitation vide its judgment dated 1.6.2007. (Secondly), in such like cases whenever afresh cause of action arises, a wife can file a suit for dissolution of her marriage; therefore, the Court below did not commit any illegality while passing impugned decision and decree.
10. It will not be out of place to mention here that to prove ground of cruelty it is not necessary for a wife to prove that she was ill-treated physically rather if it is proved on the record that the husband has made the life of her wife miserable by cruelty of conduct, it is sufficient to hold that the husband treats her wife with cruelty. I do not want to discuss this aspect of case in detail because the decree has not been passed on the ground of cruelty rather on basis of `Khula'.
11. As far as the question of `Khula' is concerned, the Respondent No, 1 has claimed the relief of `Khula' in relief clause of her suit and she has also led evidence on this point; therefore, for the reason only that an issue was not framed about `Khula' is not sufficient to throw out the case of the Respondent No,
1. It has been persistently opined by the Superior Courts that if the plea of `Khula' is not taken in the suit or an issue is not framed but if from the perusal of evidence, the claim of ahula' is proved, the Court is empowered to pass a decree on basis of `Khula'. (PLD 1981 AJK 94 and 1984 CLC 1325).
12. As stated above, the spouses could not populate for a period of nine years, they have been engaged in filing civil and criminal suits against each other. The- Respondent No: 1 is now fourty- two years old and it is impassible for the spouses to lead a happy life within the limits prescribed by Almighty Allah; therefore, it will be better to dissolve the marriage instead pushing them into a hateful union. Similarly, the amount of %hula', the dower money, was also fixed in a proper manner, which was proved not to be paid to the Respondent No, 1 as stated in earlier part of the judgment.
13. The nutshell of above discussion is that finding no force in this appeal, it is hereby dismissed.