' ROOH-UL-AMIN KHAN, J.---Through the instant constitutional petition, petitioner has challenged the validity and legality of impugned judgment dated 15-6-2013, passed by the learned Additional District Judge-III, Kohat, whereby appeal filed by the petitioner against the consolidated judgment/decree dated 19-4-2012, passed by the learned Family Court, Kohat was partially set aside and the marriage contract between the parties was dissolved on basis of khula instead of cruelty and in lieu of khula the petitioner/plaintiff has to forego the unpaid dower amount to 16 tolas gold ornaments and 1/2 share in the house, however she would not return the 4 tolas gold, received at the time of marriage. Her maintenance amount granted by the trial Court Rs,2000 per month was reduced to 1500 per month. She was however held entitled to recover dowry articles as per list and in case of non-availability its market value to the tune of Rs,45048.
2. Brief but relevant facts of the present case are that, petitioner Mst. Shahan Bibi, instituted two separate suits bearing No, 72/FC for recovery of dower, maintenance and dissolution of marriage on the ground of cruelty and maltreatment while a second suit bearing No, 90/FC for recovery of dowry articles as mentioned in the list attached with the suit.
3. Respondent/husband was summoned, who contested the suits by filing written statements. From the divergent pleadings of the parties, the learned Judge, Family Court framed issues.
4. On conclusion the learned Judge Family Court decreed the suit in favour of plaintiff vide consolidated judgment dated 19-4-2012 Feeling aggrieved with the same, respondent/husband filed appeal. The appellate Court vide the impugned judgment dated 15-6-2013, partially allowed the appeal, passed a decree for dissolution of marriage on the basis of 'Khula' whereby the petitioner /wife has to withdraw from her claim of unpaid dower 16 tolas of gold ornaments and 1/2 share of house while maintenance allowance was fixed as Rs, 1500 per month. Hence this petition.
5. Learned counsel for petitioner argued that, the impugned judgment/decree passed by the appellate Court is against law and facts and is the result of mis-reading and non-reading of evidence on record; that against the decree of the Family Court, appeal of the respondent was not competent; the appellate court has erred in law to convert the dissolution of marriage on the ground of Khula instead of cruelty, as there are sufficient evidence available on record to prove the cruelty on the part of the respondent. The second marriage, without the consent of the plaintiff is sufficient to prove cruelty on the part of the respondent but the learned appellate Court has ignored this aspect of the case, thus has caused great miscarriage of justice.
6. Learned counsel for respondent /husband strongly opposed the contention raised by learned counsel for petitioner and supported the impugned judgment passed by the learned appellate Court.
7. We have given our utmost thought to the respective arguments advanced at bar by the learned counsel for the parties and also gone through the record made available. Although the re- appreciation of evidence is not the function of this court under its constitutional jurisdiction, however, for our own satisfaction, we have perused the record minutely. The arguments agitated by the counsel for respondents that factor of cruelty is not proved by the plaintiff/petitioner as she herself abandoned her conjugal domicile and deserted the house of respondent is unpersuasive and run contrary to the record. The plaintiff has alleged that the attitude of the defendant and his family members have remained harsh towards her and she has always been kept in texture. The defendant used to beat and thrash her on stock of the rifle and used to abuse her but she was bearing all that for the sake of honor of her parents. She also urged that for the last two and a half years, she has been shunted out by the respondent from her house, in her three wears and since then, she is residing with her parents. During this period, the respondent has never bothered to inquire about her, rather, without her consent, has contracted a second marriage, thus in presence of second wife it is difficult for her to maintain the marital tie alive. In support of her claim, she produced Muhammad Asif, P.W.2 who fully supported the statement of petitioner/plaintiff. In addition, he stated that despite hectic efforts from different quarters, the respondent/defendant is not ready to accommodate the petitioner with himself, so much so, he is not ready to maintain her.
One Hazrat Muhammad appeared before the trial court and recorded his statement as P.W.4.
According to his statement, once he had resolved the matter between the parties, however, after some time, some dispute again arose between the parties, thus he was called by the respondent/defendant and informed him, in presence of the parents of the plaintiff that he is not ready to accommodate and keep her as wife. The same story was repeated by Shafi Ullah P.W.5, however, he added that during conciliation, the defendant has made fire upon him but he escaped unscathed. The assertion of P.W.5 also found support from the statement of mother of respondent/defendant wherein she has admitted that due to quarrel between the parties, the petitioner was expelled by the respondent from house and she was taken to her parents house by one Shafiq. She also admitted that at the time of skirmish between her son Nadeem Shah and his mother in law, the respondent drew his pistol and attempt to commit suicide but his other brothers gripped his hand, thus it was fired in the air. This witness, being mother of the respondent has also admitted it correct that the defendant has contracted a second marriage, about three years back and since then, he has not maintained the plaintiff. From the above, it is manifest that the respondent has failed to maintain the petitioner for more than two and a half years, who is residing with her parents. Dissolution of Muslim Marriages Act, 1939 provide recognized grounds for dissolution of marriage, according to which neglecting or non, maintaining the wife for a period of two years will entitle the wife for seeking dissolution of marriage on ground of cruelty. As discussed above, in the instant case, it is proved on record that the petitioner has taken abode and inhabited in her parents house for more than two and a half years and the respondent has neglected her, so much so, in her absence has contracted a second marriage. The learned appellate court while setting aside the well versed findings of the trial court regarding dissolution of marriage on basis of cruelty, has failed to appreciate the evidence of the parties and conduct of the respondent, thus has landed in the field of error. The cruelty is not limited to physical beating rather that can be either mental or even by conduct. In the case in hand, the petitioner has categorically stated in his statement that she has sustained acute mental anguish and suffering by the reckless and careless attitude and conduct of the respondent, which compelled her to approach the trial court for dissolution of her marriage.
8. Section 14 of the Family Courts Act, 1964 contemplates appeal from the decision of the Judge, Family Court to be competent before the District Judge and from the decision of District Judge to the High Court but with a bar that no appeal shall lie from decree passed by a family court dissolving marriage on any other grounds or grounds specified E therein except on the ground mentioned in section 2(viii)(d) of Dissolution of Muslim Marriages Act, 1939, which relates to the disposal of property of wife preventing her from exercising her legal right over it. From the above, it is manifest that except on the ground mentioned above, if marriage is dissolved by the family court on any other ground, the appeal would not be competent. In the case in hand, the learned appellate court was not vested with jurisdiction to entertain the appeal against dissolution of marriage and convert the mode of dissolution of marriage. On this score alone, the finding of appellate court to the extent of dissolution of marriage on the ground of khula is not sustainable. So far as reduction in maintenance allowance is concerned, the appellate court has reduced the maintenance allowance from Rs, 2000 to 1500 without any reason. It is borne out from the record that the respondents reside abroad and earning a handsome amount, while the petitioner had been left at the mercy of her parents and never provided a single penny to her. The defendant No,2, special attorney of the plaintiff has also admitted it correct that her son has not paid any maintenance to the plaintiff, despite the fact that he is living abroad from the last about 9 years.
The financial position of the respondent is strong and the trial court has rightly determined the maintenance amount @ Rs, 2000 per month, thus the finding of appellate court to the extent of maintenance amount is set aside while that of trial court is restored.
9. For what has been discussed above, we are firm in our view that the appellate court has arrived at an erroneous conclusion by dissolving marriage of the petitioner on basis of Khula. Resultantly this writ petition is allowed and the impugned judgment dated 15-6-2013 passed by Additional District Judge-III, Kohat is set aside while judgment and decree dated 19-4-2012 passed by Judge, Family Court, Kohat is restored.