Respondent No. 1, Mst. Kamal Fatima, hereinafter referred to as the respondent, filed a suit for dissolution of marriage, against her husband, Muhammad Zafar. He is petitioner in the instant writ petition. In her suit, it was alleged by the respondent that the petitioner had treated her with habitual cruelty, that he had failed to maintain her for more than two years, that he had not performed marital obligations for more than two years and that he had misappropriated her dowery. On the other hand, the petitioner filed a suit against the respondent for restitution -of conjugal rights. Both the suits, which were pending before a Family Court of Lahore, were consolidated and following issues were framed
(1) Whether the defendant has failed to maintain the plaintiff for more than two 'years. O. P. P.
(2) Whether the defendant has apt performed the marital obligations for more than three years. O.
P. P.
(3) Whether the defendant has been treating the plaintiff with habitual cruelty. O. P. P.
(4) Whether the defendant has misappropriated the dowery of the plaintiff. O. P. P.
(4-A) Whether the defendant is entitled to a decree for restitution of conjugal rights. O. P. P.
(5) Relief The learned Judge of the Family Court decided Issues Nos. 1, 2, 3 and 4-A in favour of the respondent and issue No. 4 against her. Resultantly, in view of his findings on Issues Nos. 1, 2, 3 and 4-A he decreed the suit for dissolution of marriage and dismissed the suit for restitution of conjugal rights. The petitioner has, therefore, filed this writ petition to assail the order of the learned Family Court by which his marriage had been dissolved.
2. As indicated above, while alleging desertion for more than three years, the respondent had levelled the charge of habitual cruelty against the petitioner. In view of this, it was contended by learned counsel for the petitioner, that the said two pleas of the respondent were mutually destructive. The proposition put forth by the learned counsel was that a husband could not subject his wife to cruelty during the period of their separation: This proposition, however, does not hold good in the instant case. My view in the matter finds support from the respondent's evidence to the effect that even after her desertion, the petitioner had given her thrashing outside the college in which she is employed as a teacher. In cases other than the present one also the possibility of a husband causing physical harm or mental torture to his wife during the period of their separation cannot be ruled out because he can do so by giving her beating and/or abuses outside their respective abodes or by writing pinching letters or making obnoxious calls on telephone if his wife has a telephonic connection. I am, therefore, unable to agree that the plea of desertion and that of cruelty are inconsistent or mutually destructive.
3. In addition, it was urged by learned counsel for the petitioner that difference of opinion between the spouses do not, by any stretch of imagination, amount to cruelty. This contention was raised by him with reference to the statement of the respondent to the effect that once, on the birth of a child, there took place a dispute between the parties regarding payment of fee to the medical attendant, I do appreciate that if on any affair relating to their matrimonial life the husband does not, in good faith, approve of a proposal made by his wife, it cannot be treated as an act of cruelty but if he makes it a habit to disagree with her on each and every matter, without any ryhme or reason, and his conduct in this behalf is motivated by a desire to make her life miserable it would certainly amount to cruelty on his part. As for the solitary incident of so-called difference of opinion in the present case, which was alluded to by learned counsel for the petitioner, even if the same is excluded from consideration there is ample evidence on the record which speaks of habitual cruelty of the petitioner. This evidence is comprised of her own testimony coupled with the statements of her three witnesses. In the circumstances, the finding of cruelty recorded against the respondent is unexceptionable.
4. While dealing with the question of cruelty it was also submitted by learned counsel for the petitioner that the respondent was not entitled to any relief for the harsh treatment, if any, meted out to her by the petitioner because, according to Qur'anic injunctions, the petitioner, being the husband of the respondent, enjoyed superiority over her and could not only rebuke her but also give her beating. It is true that according to' the Holy Qur'an the husband ranks higher than his wife but there is no authority for the proposition that he can trouble her without any reason. Learned counsel for the petitioner did not furnish any justification for the cruel treatment complained of by the respondent. He also did not refer me to any evidence showing that it was the disobedience of the respondent which had invited the wrath of the petitioner. Therefore, the mere fact that in Muslim Society, the husband happens to be superior to his wife would not help the petitioner in avoiding legal consequences of his maltreatment.
5. As stated above, there is nothing wrong with the finding of the learned Family Court that the petitioner had treated the respondent with habitual cruelty. The petitioner is, therefore, responsible for their separation. It is not disputed that the period of their separation exceeded three years. It is not the case of the petitioner that he had been providing maintenance to.. The respondent or performing marital obligations during the said period.
The findings of the trial Court on Issues Nos. 2 and 3 also therefore, do not call for any interference.
There is no merit in this petition. It is, therefore, dismissed with costs.