' MRS. IRSHAD QAISER, J.--- Through this single judgment, this Court shall dispose of W.P No,465-A of 2012 and W.P No, 512-A of 2012, as they have arisen out of the same judgment and decree dated 10- 3-2012 passed by the learned Additional District Judge-I; Abbottabad whereby Appeals Nos.34/FC and 3/FC filed by both the parties against the judgment and decree dated 26-10-2010 passed by Judge Family Court-I Abbottabad were dismissed.
' The particulars of writ petitions are as under:---
(I) Mst. Rukhsana Younas v. Aziz-ur-Rehman (W.P No,465-A of 2012)
(II) Aziz-ur-Rehman v. Mst. Rukhsana Younas (W.P No,512-A of 2012)
2. The brief and relevant facts of the present case are that petitioner/plaintiff Mst. Rukhsana Younas filed a suit against her husband Aziz-ur-Rehman (petitioner in W.P No,512-A of 2012) now called respondent for:---
(I) Dissolution of marriage.
(II) Possession of house as dower or otherwise its market value of Rs,2,00,000.
(III) Recovery of maintenance allowance at the rate of Rs,10,000 per month from 18-10-2007 till dissolution of marriage.
(IV) Recovery of dowry articles as per list attached or its market value Rs,2,86,000 and
(V) Recovery of seven tolas gold ornaments or its market value.
3. In the body of the plaint it is contended that marriage between the parties was solemnized in year 2003 in consideration of house as dower, That from the beginning of marriage attitude/behaviour of defendant was not cordial towards plaintiff. That plaintiff is third wife of defendant. That after the marriage defendant left for abroad and in his absence family of the defendant treated plaintiff, with cruelty. That on complaint of plaintiff regarding the behaviour of his family defendant started abusing plaintiff. That defendant ouster plaintiff from his house several times. Lastly on 18-7-2007 after snatching cell phone, gold and apparels defendant ousted plaintiff from his house. That defendant now intends to contract 4th marriage. That dowry articles of plaintiff are in possession of defendant. That defendant was asked time and again to fulfil the demands of plaintiff but he refused and hence the instant suit.
4. Defendant/husband was summoned who attended the Court and contested the suit by submitting his written statement. The learned trial Court framed 11 issues from the pleading of the parties. After recording pro and contra evidence, the learned trial Court vide judgment and decree dated 26-10-2011 passed a decree of possession of (1) 1/2 of the dowered house (2) Recovery of seven tolas gold ornaments or otherwise market value (3) Recovery of dowry articles as per list or otherwise its market value as prayed for. (4) Recovery of maintenance allowance at the rate of Rs,2000 P.M from 18-7-2007 till the passing of decree and future maintenance allowance subject to rehabilitation. Rest of the suit was dismissed. While decree for restitution of conjugal rights was passed in favour of respondnt/husband. Feeling aggrieved both the parties filed appeals which also met the same fate vide judgment and decree dated 10-3-2012. Hence the present writ petitions.
5. We have heard learned counsel for the parties and perused the available record with their assistance.
6. In W.P. No,465-A of 2012 the petitioner/wife challenged the decree and judgment of both the Courts below to the extent of refusal of dissolution of marriage. While in W.P. No,512 of 2012 the respondent/ husband challenged the decree passed in favour of petitioner/wife.
7. Now the question for determination is that whether petitioner/ wife is entitled for the dissolution of marriage along with all the benefits of dower, maintenance etc. Or she is entitled for Khulla?
Whether petitioner is self deserted and is not entitled to any relief granted to her by the Courts below and the husband is entitled to the decree of restitution of conjugal rights as he had fulfilled all the legal necessary obligations?
8. It is admitted fact that respondent/husband did not take active participation in the trial proceeding. Due to his absence no opportunity was given by the trial Court to make efforts for pre trial and post trial reconciliation. Even he did not bother to appear in the witness-box and to express his affiliation and love toward his wife. He has only submitted his written statement wherein he denied the allegation of petitioner/wife and levelled false allegation against her and pleaded that for so many times the plaintiff was seen in the company of stranger and when she was asked about their relationship with her, she pretended that he is the brother or husband of her friend. In para No,2 of his written statement he specifically mentioned; {{URDU TEXT}}
9. Though Aziz-ur-Rehman did not appear in witness-box to prove the character assassination of the petitioner/wife however, in support of his claim three DWs including his aunt, Muhammad Shafiq and Malik Shahzad recorded their statements as DW.1, DW.2 and DW.3 but they have not uttered a single word in respect of the fact that she is leading immoral life. Rather in cross- examination they denied the contention of respondent husband. DW.2 Muhammad Shafiq brother of respondent though has not uttered a single word in his examination in chief about the bad character of the petitioner but in cross-examination he admitted;--- {{URDU TEXT}} This fact reveals that she was subjected to mental cruelty.
10. In the plaint as well as in her statement petitioner contended that before her marriage the respondent had already contracted two marriages but he did not disclose this fact to her family. In his written statement he admitted his earlier marriages but he failed to prove that this fact was already in the knowledge of the plaintiff/wife. From the record it is suggested that he and his other brothers are in the habit to contract marriage and then to give divorce to their wives. They have considered this sacred tie of marriage as a joke. Shafiqur Rehman has admitted in his cross- examination; {{URDU TEXT}} ' He also admitted;
11. All these facts revealed that respondent has no love and affection towards his wife rather he is ready to contract fourth marriage and he filed suit for restitution of conjugal right only as a counter blast to the case of the petitioner. It is also on record that respondent himself never tried to settle the petitioner in his house while in rebuttal in spite of all the above noted cruel behaviour of her husband she was ready to go to her husband's house. In cross-examination she admitted "I am ready to go with the defendant if he is willing to take me". She also admitted "I am also ready to go with the defendant to his native house when he is in the country and keep me in my parent's house when he is out of country. I am ready to go with him from the Court room if he fulfilled the above mentioned conditions". It is proved from the record that she is not self deserted rather she was compelled to leave the house of her husband due to the cruel behaviour of the respondent and his family members. Both the Courts below have unanimously held that she is entitled for recovery of maintenance allowances at the rate of Rs,2000 per month from 18-7-2007 till now and for future maintenance at the same rate subject to rehabilitation of petitioner with the defendant.
12. It is on record that though decree for restitution of conjugal rights had been granted in his favour but he never bothered to execute the decree as he had not filed any execution petition in this respect. This shows his indifferent attitude toward his wife. Moreover, in spite of granting of decree of maintenance allowance since July, 2007 he failed to pay the maintenance. She has not been maintained by her husband for a period of about 7 years. Under section 2(ii) of Dissolution of Muslim Marriages Act, 1932 it is clearly mentioned that wife is entitled to the dissolution of her marriage on the ground of non-payment of maintenance for a period of more than two years. Here she has not been maintained for about 7 years. Thus apart from cruelty she is also entitled to the dissolution of marriage on the ground of non-payment of maintenance allowance for about 7 years. Reference in this respect is made to 2002 CLC 127 Lahore. Thus the judgment and decree of both the Courts below are modified to the extent of prayer 'Alif' of the plaint and the decree for dissolution of marriage is granted. She has also proved her claim in respect of dower and golden ornaments. The respondent has not been able to substantiate his claim by producing convincing, cogent, reliable and confidence inspiring evidence. Thus in respect of relief/decree mentioned at Serial Nos.1 to 4 of the judgment of trial Court both the Courts below have rightly and correctly appreciated the evidence produced by the parties and rightly accepted the claim of the petitioner.
The concurrent findings rendered by both the Courts below on the facts in respect of relief 1 to 4 are based on correct appreciation of evidence and the law applicable thereto. No misreading and non-reading of evidence or jurisdictional error was pointed out by the counsel for petitioner. Thus this Court does not want to interfere in the judgment and decree rendered by both the Courts below in exercise of its writ jurisdiction in respect of relief 1 sto 4 i,e, possession of house, gold ornaments, dowry articles and maintenance allowance.
13. Accordingly, for the reasons recorded herein above the Writ Petition No,465-A of 2012 is allowed, the judgment and decree of both the Courts below are modified and the decree for dissolution of marriage on the basis of cruelty and non-payment of maintenance allowance is granted in favour of petitioner against the respondent. The period of "Iddat" is started from today while the decree of restitution of conjugal right passed in favour of respondent is hereby set aside and W.P No,512-A of 2012 is dismissed with no order as to cost.