1. As both the appeals arise out of the same decision and decrees dated 28.10.2011; therefore, these are consolidated and being disposed off by this single judgment.
2. The facts precisely stated are that Mst. Kali Bibi filed a suit for dissolution of her marriage on 5.8.2008 before Judge Family Court Kotli on the grounds of cruelty, non-payment of maintenance, nonperformance of marital obligations, leveling allegations of illicit relations and in alternative on basis of `Khula'. She contended that she was married to Muhammad Yaseen on 18.06,2000 in lieu of dower Rs,39,498/- and remained populated with Muhammad Yaseen for one year but during the period of population his parents have been physically ill-treating her and also leveling allegations of illicit relations whereas Muhammad Yaseen has also been beating and abusing her. She further averred that he has solemnized a second marriage in Saudi Arabia and did not maintain her for the last 7 years and even he did not come for condolence on the death of her mother.
3. On the same day, i,e, 5.8.2008 Mst. Kali Bibi also filed a separate suit for recovery of maintenance allowance, wherein she submitted that she was married to Muhammad Yaseen on 18.6.2000 and remained populated with him for one year but thereafter she was ousted by Muhammad Yaseen and his family from his house. She is residing with her brothers for the last 7 years but during the period of separation, Muhammad Yaseen did not pay her any maintenance, which may be recovered from him at the rate of 5,000/- p.m.
4. Muhammad Yaseen filed his written statements and refuted the contents of both the suits. He submitted that she remained populated with him for 7 years happily. He has also been sending gifts for her from a foreign country, but she left his house at her own about one and half year prior to the institution of the suits and did not come back to live with him. He further stated that she took away all the dresses and ornaments with her; therefore, she has got no cause of action and both of her suits may be dismissed.
5. In the light of pleadings of the parties, the learned Judge Family Court framed six issues in the suit for dissolution of marriage on 7.2.2009 and on the same day framed four issues in the suit for recovery of maintenance. Thereafter he consolidated the suits vide its order dated 11.2.2010.
6. Muhammad Yaseen also filed a suit for restitution of conjugal rights on 26.11.2010, when the suits for dissolution of marriage and for recovery of maintenance were at the stage of recording of his evidence. He averred the same version which was taken in his written statements filed in the suit for dissolution of marriage and for recovery of maintenance, whereas Mst. Kali Bibi refuted the contents of the suit and submitted that after 2 years of the presentation of the suit for dissolution of marriage, the respondent has filed a cross suit to delay the proceedings in the suit for dissolution of marriage. She further contended that Muhammad Yaseen is residing in Saudi Arabia for the last many years; therefore, the Vakalatnama has been forged.
7. On 15.1.2011, the learned Judge Family Court also consolidated the suit for restitution of conjugal rights with other suits filed by Mst. Kali Bibi and framed an additional Issue No, 1.
8. In support of her claim, Mst. Kali Bibi appeared in the witness box and also produced Muhammad Arif s/o Wazir Muhammad, Faryad and Muhammad Shabbir as her witnesses, whereas on the other hand, Muhammad Arif s/o Sakhi Muhammad and Muhammad Aksar entered the witness box on behalf of Muhammad Yaseen.
9. The learned Judge Family Court after hearing the arguments of the parties passed a decree for dissolution of marriage on the ground of cruelty, non-performance of marital obligations and non- payment of maintenance, whereas another decree for recovery of maintenance allowance was also passed in her favour in the manner that Mst. Kali Bibi is entitled to receive maintenance at the rate of Rs, 2500/-p.m. for 6 years prior to 5.8.2008, total amount Rs, 2,70,000/- alongwith maintenance for the period of `Iddat' Rs,7,500/-, total 2,77,500/- from Muhammad Yaseen and the suit for restitution of conjugal rights was dismissed vide its decision dated 28.10.2011. The aforesaid decision and decrees have been assailed by both the parties through two separate appeals, which are subject matter of this judgment.
10. Muhammad Najeeb Raja, the learned Counsel for Muhammad Yaseen, vehemently argued that the learned Judge Family Court fell in grave error while passing a decree on the ground of cruelty because Mst. Kali Bibi miserably failed to prove the same. The learned Counsel further contended that the learned Judge Family Court also committed an illegality while consolidating all the suits rather it was incumbent upon him to hear and dispose of the suits separately. The learned Counsel further agitated that Mst. Kali Bibi is not entitled to the recovery of maintenance allowance because she left the house of Muhammad Yaseen at her own and stayed away without any cogent reason. The learned Counsel finally prayed that the impugned decision and decree may be set- aside and a decree for restitution of conjugal rights may be passed in favour of Muhammad Yaseen. In support of his contentions, the learned Counsel placed reliance on 1996 SCR 281 and 2001 SCR 233.
11. Malik Muhammad Zaraat, the learned Counsel for Mst. Kali Bibi, controverted the arguments raised by the learned counsel for Muhammad Yaseen and submitted that Mst. Kali Bibi has not only amply proved her case through her statement but also by producing sufficient evidence. The learned Counsel agitated that she filed suits, for dissolution of marriage and for recovery of maintenance allowance on 5.8.2008 and both the suits were at the stage of recording of evidence of Muhammad Yaseen, when after expiry of 3 years he filed a cross suit of conjugal rights; which itself shows his intention and cruel attitude. The learned Counsel maintained that the respondent has contracted a second marriage in Saudi Arabia, who is residing over there for the last 7 years and never come back to look after the appellant. He also did not pay any maintenance allowance and even did not appear as witness in support of his case despite numerous opportunities, granted by the Family Court. According to the learned counsel, the impugned decision on the grounds of cruelty, non-payment of maintenance allowance and non-performance of marital obligations, was rightly recorded by the Court below. The learned Counsel pressed into service the submission that keeping in view the inflation in eatable items, the Court below did not fix maintenance allowance in a proper manner because a wife cannot live properly within a meager maintenance of Rs,2500/- p.m.; therefore, the rate of maintenance allowance may be increased upto Rs,5000/- p.m., which is a proper amount of the maintenance allowance. The learned Counsel further contended that Muhammad Yaseen has solemnized a second marriage in Saudi Arabia; therefore, he can easily afford 'maintenance allowance at the rate of Rs,5000/- p.m. In support of his arguments, the learned Counsel cited the following authorities:--
1. PLD 1991 SC 543;
2. 1994 CLC 2403;
4. 2004 SCR 108;
5. PLJ 2009 Lahore 810; I have heard the learned counsel for the parties and examined the file carefully. At the very outset, it will be necessary to mention here that Mst. Kali Bibi filed two separate suits, one for dissolution of marriage and other for recovery of maintenance allowance on the same day, but the learned Judge Family Court did not consolidate both the suits and proceeded separately in both the suits till 11.2.2010, about one and half year, which shows slackness and carelessness on the part of Judge Family Court.
12. Coming to the instant case, Mst. Kali Bibi, who got her statement recorded twice, deposed in an unequivocal manner that she was married to Muhammad Yaseen on 18.6.2000 and remained populated with him for about one year and thereafter he left for Saudi Arabia but his parents after physically ill-treating ousted her from the house. She remained in the house of her parents for about 2 and half years but the respondent did not pay her any maintenance allowance. His father died and after 2 and half years the respondent came back and on the advise of the respectable of village, she again populated with the respondent but after 20/25 days, he again after physically assaulting and snatching away ornaments, ousted her from his house. Since then she is residing in the house of her parents for the last 5/6 years, but he did not provide her any maintenance allowance, rather he has solemnized a second marriage in Saudi Arabia.
13. Muhammad Arif s/o Wazir Muhammad, a witness for Mst. Kali Bibi, stated that she remained populated with the respondent for one year but during the period of population, the respondent physically ill-treated her in his presence in the house of the parents of Mst. Kali Bibi. She is living now separately for the last 8 years but the respondent did not provide for her any maintenance.
14. Muhammad Faryad, another witness and brother of Mst. Kali Bibi, testified that after marriage she remained populated with Muhammad Yaseen for one year but during the period of population, the parents of Muhammad Yaseen did not treat her properly and he again sent her to live with the husband but after 10/15 days of repopulation, the respondent after physically ill-treating and snatching away ornaments again ousted her from his house. He further deposed that the respondent has contracted a second marriage in year 2007 in Saudi Arabia but did not pay any maintenance allowance to Mst. Kali Bibi.
15. The evidence of Muhammad Shabbir, another witness for Mst. Kali, cannot be taken into consideration because he is not only closely related to Mst. Kali Bibi but also animus to Muhammad Yaseen, respondent. He admits that he got registered a case against father, brothers and sisters of Muhammad Yaseen, which is still pending in the Court and father of Muhammad Yaseen has also filed a civil suit against him.
16. On the contrary, Muhammad Arif s/o. Sakhi Muhammad, a maternal uncle and a witness for Muhammad Yaseen, and Muhammad Aksar, another witness for Muhammad Yaseen, have admitted the fact that Muhammad Yaseen is living in Saudi Arabia for the last many years and he has also solemnized a second marriage. He has been blessed with a daughter. Muhammad Arif tried to prove the facts that during the meeting of respectables, Mst. Kali Bibi admitted before Pir Akram Shah that ornaments, and Saudi Rayals are yet in her possession but the evidence of Muhammad Arif in this respect is hearsay. However, Muhammad Aksar, another witness, also tried to support the factum of Panchayat but the fact of convening of Panchayat could not be proved because neither Pir Karamat Shah was produced as a witness nor Muhammad Yaseen appeared as a witness.
17. A careful perusal of the aforesaid evidence shows that Mst. Kali Bibi has amply proved the factum of cruelty, non-payment of maintenance allowance and non-performance of marital obligations. It has also been proved on the record that Muhammad Yaseen is living in Saudi Arabia for the last many years. He has contracted a second marriage, who has been blessed with a daughter too. He did not pay any maintenance allowance to his wife from the day of separation. He did not perform his marital obligation for more than a period of three years. He did not appear before the Court below as a witness in support of his claim and also failed to produce sufficient and reliable evidence in rebuttal. In this manner, I do not find any misreading or non-reading of evidence and judgment of the Court below to the extent of dissolution of marriage has been recorded in a legal fashion, which is maintained.
18. So far as the case law cited by the learned counsel for Muhammad Yaseen is concerned, does not help the case of Muhammad Yaseen rather it supports the version of Mst. Kali Bibi because it has been held in Syed Imtiaz Hussain Shah's case (2011 SCR 233) that for proof of cruelty, infliction of injury is not required rather leveling a false allegation against a wife has been treated as cruelty which results into mental torture and loss of mutual confidence. While in the instant case, it has been amply proved on the record that Muhammad Yaseen has been physically beating and ill- treating Mst. Kali Bibi. Similarly another authority cited by the learned counsel for Muhammad Yaseen reported as Andleeb Sahir Butt V. Family Judge Bagh & another (1996 SCR 281) is beyond controversial issue and have nothing common with the facts of the present case.
19. On the other hand, the authorities referred to by the learned counsel or Mst. Kali speak of the principles enunciated by the superior Courts. It has been held that while fixing the amount of maintenance allowance it is incumbent upon the Court to take into consideration the needs of the wife and it is the duty of the husband to maintain his wife from the day of his marriage because a husband is obliged to maintain his wife and in event of his failure to do so, she is entitled to a decree for dissolution of marriage. It has been further observed by the Apex Court of AJ&K in the case titled Mst. Zaiban V. Mehrban (2004 SCR 108) that past maintenance upto 6 years can be granted to a wife.
20. As far as the question of recovery of maintenance allowance is concerned, it has also been proved on the record that Muhammad Yaseen is residing in Saudi Arabia, who has contracted a second marriage. He is working as a mason over there and is looking after his second wife and daughter, whereas he has failed to maintain his wife Mst. Kali Bibi during the period of population; therefore, a decree of maintenance allowance was rightly passed against him but the rate of maintenance allowance was not fixed in a proper manner. Thus, keeping in view the inflation in eatable items, the maintenance allowance is increased fromRs,2500 to Rs,4000/- p.m.
21. The analysis of above discussion is that, by accepting Appeal No, 59 of 2011 filed by Mst. Kali Bibi, the impugned decision and decree dated 28.10.2011 is modified to the extent of maintenance allowance, which is increased and fixed upto Rs,4000/- p.m. instead Rs,2500/-. The remaining decision of the Court below is maintained.
22. Resultantly, Appeal No, 55 of 2011 filed by Muhammad Yaseen stands dismissed. No order as to costs. A copy of the judgment shall be annexed with other relevant file.