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.
2. Brief but relevant facts of the present case are that, petitioner-wife Mst. Shahana 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, vide the consolidated judgment dated 19.4.2012 passed a decree as prayed for in favour of the petitioner. 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; that decree for dissolution could not have been passed on the ground of Khula, rather on cruelty, as there is sufficient evidence on record to prove this assertion alone; that during subsisting of first marriage, the ground of second marriage by the respondent/husband is alone sufficient ground for dissolution of marriage on the basis of cruelty but the learned appellante Court has ingored this aspect of the case thereby cause great miscarriage of justice.
6. Learned counsel for respondent /husband strongly opposed the contents raised by learned counsel for petitioner and supported the impugned judgment passed by the learned appellate Court termed to be the result of proper appreciation of evidence on record.
7. The main issue for resolution before this Court is that, whether the petitioner /wife was entitled for dissolution of her marriage on the ground of maltreatment and cruelty etc. alongwith other grounds as prayed for, on the evidence produced before the trial Court and whether the learned Appellate Court was justified in dissolving the marriage between the spouses on the basis of Khula.
In the case in hand the wife-respondent claimed dissolution on the grounds other than that of Khula. The ground of cruelty and beating had been specifically taken in the plaint by wife/petitioner beside other prayers.
8. The appellate Court after evaluating the evidence had to conclude that the wife-respondent was entitled for dissolution of marriage on the ground of cruelty. Normally this Court does not appraise the evidence to come to its own conclusion but after going through the evidence, we are satisfied that the ground of habitual cruelty has been established alongwith other claims with regard to maintenance allowance, dower and dowry articles, by the petitioner before the learned Judge Family Court. Perusal of impugned judgment reveals that evidence of all the witnesses produced by the petitioner in her favour hasn't been assessed properly by the learned appellate Court. No doubt, appreciation of evidence is exclusive function of the trial Court on the factual side but if there is illegality committed then in writ jurisdiction interference is called for.
9. The petitioner contends that she had filed suit for dissolution of her marriage on the grounds of cruelty, physical and mental torture. She also took the ground of second marriage.
10. To prove her claim as taken in the plaint the petitioner, she has produced and examined Muhammad Asif (PW-2) who was the marginal witness to the Nikah Ex.PWPW-1/1 took place between the parties on 30.6.2002 who has categorically stated that for no reasons the respondent/husband has failed to maintain her wife/petitioner as his wife, has not provided any maintenance, her parent's house. Relevant lines from is statement is reproduced below: PW-3, Aurangzeb being another marginal witness to the Nikah of petitioner with respondent, has also reiterated the same story as narrated by PW-2 his relevant statement is also reproduced below: PW-4 Hazrat Noor, who in his statement in clear words has stated that to resolve the matter between the parties, he being elder from the respondent's side in a jirga convened for the purpose, the respondent /husband had refused to accept the petitioner as his wife as he was not ready to take her back to his house his statement to this extent is reproduced as under: Another very important statement is of PW-5 ( Shafi Ullah) another elder of jirga, had deposed that during amicable settlement proceedings, not only the respondent refused to maintain the petitioner but also spell out them from the house and fired too, at them but they escaped unhurt, he says in his statement as under: Thus, it is obvious that the petitioner was maltreated cruelly and respondent didn't have provided any maintenance allowance for the period as claimed in the plaint by the petitioner which gain credibility from the evidence as discussed above. Therefore, the contention of petitioner that she has suffered mental and physical torture at the hands of respondent stands proved.
11. In the instant case the petitioner/wife has not asked for dissolution of her marriage on the ground of Khula but on various grounds i.e. cruelty, nonpayment of maintenance allowance, expulsion from the house forcibly by the husband etc. and in such situations she would be entitled for recovery of dower, dowry and maintenance etc. as were decreed by the trial Court vide the impugned judgment but, in case of dissolution of marriage solely on the ground of 'Khula' then situations would be different. Hence, she is thus found entitled to the decree as prayed for and granted by the learned Judge Family Court vide impugned judgment dated 19.4.2012, rather her decree for dissolution of marriage on the ground of Khula as was decreed by the learned appellate Court vide judgment dated 15.6.2013.
12. For the reasons given hereinabove, the learned appellate Court had erred in arriving at a wrong conclusion vide the impugned judgment, which is resultantly set aside and consolidated judgment / decree dated 19.4.2012 passed by the learned Judge Family Court, Kohat is restored.