MOHAMMAD AZAM KHAN, C.J.---Respondent, Sadia Shafique, filed three suits for dissolution of marriage, dowry articles and maintenance charges, in Court No.1, Family Judge, Muzaffarabad. The appellant Azhar Bashir also filed a suit for restitution of conjugal rights. After necessary proceedings, the Family Court decreed the suit for dissolution of marriage on the ground of khula against the dower amount of Rs.1,25,000/-. The suit for recovery of dowry articles was also decreed and the suit for maintenance charges was decreed from 27.6.2010 to the end of iddat period at the rate of Rs.20,000/- per months, while the suit filed by the plaintiff-appellant, Azhar Bashir, for restitution of conjugal rights was dismissed. Dissatisfied from the judgment, Azhar Bashir filed three appeals while respondent Sadia Shafique filed appeal to the extent of dissolution of marriage on the ground of khula and payment of deferred dower amount of Rs.1,25,000/. After necessary proceedings a learned single Judge in the Shariat Court dismissed the appeal filed by Sadia Shafique and partly accepted the appeal filed by Azhar Bashir, however, his appeal to the extent of maintenance charges was dismissed and it was declared that Sadia Shafique is entitled for maintenance charges of Rs.20,000/- per month from the date of desertion i.e. 27.6.2010 to the date of filing of the suit for dissolution of marriage i.e. 13.10.2010. This judgment of the Shariat Court is the subject of present appeals.
2. Mr. K. D. Khan, advocate, counsel for the appellant, Azhar Bashir, argued that the judgment of the Shariat Court is partly illegal. The learned counsel submitted that it is admitted and proved that 20 tola golden ornaments were given to the wife by the husband at the time of marriage, as dower, which are in her custody and while passing the decree on the basis of khula it was enjoined upon the Family Court to order forreturn of 20 tola golden ornaments in lieu of khaki along with the amount of deferred dower i.e. Rs.1,25,000/-. The Family Court as well as the Shariat Court incorrectly applied the law. The learned counsel argued that the Court has no power to reduce the khula amount which was paid to the wife as dower. The learned counsel referred to and relied upon the cases reported as Syed Shujahat Hussain Kazmi v. Mst. Nazish Kazmi 2007 CLC 1771, Zohra Bi v.
Muhammad Saleem and others 2005 YLR 896, Boota and another v. Muhammad Sadiq and 4 others 2001 M LD 265 and Mst. Sabia Naz and another v. Mir Rustam and 2 others [1999 M LD 1763]. He requested for acceptance of appeal and grant of 20 tola golden ornaments to the appellant in lieu of khula. The learned counsel further submitted that the appellant has abandoned the house of her husband with her own free will. The factum of cruelty was not proved. When a wife voluntarily abandons the house of her husband, she is not entitled for maintenance charges. The appellant challenged the judgment of the Family Court for payment of maintenance charges in a separate appeal. The judgments of the Family Court and the Shariat Court are contradictory. At one side the Courts have passed the decree on the ground of khula and on the other side have ordered for payment of maintenance charges. The plaintiff is not entitled for decree of maintenance charges.
The learned counsel also argued that in the recent judgments this court has categorically declared that when a wife abandons the house of her husband voluntarily, she is not entitled to maintenance charges. He requested for acceptance of his appeal and setting aside the decree of the Shariat Court.
' In the case reported as Ms t. SabiaNaz and another v. Mir Rustam and 2 others [1999 M LD 1763] it was observed by the Shariat Court that the question of Khula was to be considered on its own merits. Even if the wife was unable to prove other grounds for dissolution of marriage, then too, the marriage can be dissolved on the ground of Khula.
' The case reported as 2001 M LD 265 is not a case of dissolution of marriage. It was held in the case that the findings of facts recorded by the trial Court and affirmed by the first appellate Court are not open to challenge in second appeal.
' In the case reported as Zohra Bi v. Muhammad Saleem and others 2005 YLR 896 observed that the principle of Khula is based on the fact that if a woman has decided not to live with her husband for any reason and there is no chance of reconciliation of her retrieving from that position, then it is left to the conscience of the Court to dissolve the marriage through Khula.
' In the case reported as Syed Shujahat Hussain Kazmi v. Mst. Nazish Kazmi 2007 CLC 1771 was observed by this Court that the wife is entitled to dissolution of marriage on the ground of Khula when in view of circumstances of relations between the spouses, the wife has reached a point of no return and has developed disliking and even hatred from her husband and the Court is of the opinion that the parties cannot observe the limits ordained by Allah.
3. Mr. Abdul Rasheed Abbasi, advocate, while arguing on behalf of Sadia Shafique in the appeal relating to the dissolution of marriage, submitted that the judgment and decree of the trial Court in respect of dissolution of marriage, maintained by the Shariat Court on the ground of khula, is not maintainable. The plaintiff-appellant specifically alleged the factum of cruelty and proved her case of cruelty from cogent and reliable evidence. When cruelty is proved from the evidence, the Court is obliged to pass the decree on the ground of cruelty and decree on the basis of khula is not maintainable. The appellant herself appeared as witness and also produced two servants of the house. Her father and uncle appeared as witnesses and proved the fact of cruelty, therefore, the decree on the basis of khula is not maintainable and the appellant is entitled to the decree on the ground of cruelty. The learned counsel referred to and relied upon the cases reported as Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another [2006 SCM R 100], Abdul Hafeez v. Shamaila Bibi and 2 others [2013 M LD 1148], Mst. Amreen v. Muhammad Kabir [2014 SCR 504] and Muhammad Sabil Khan and another v.Saima Inshad [2014 SCR 718].
' In the case reported as Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another [2006 SCM R 100], the wife filed a suit for dissolution of marriage on the ground of khula and other grounds of habitual cruelty and non-payment of maintenance. The Family Court decreed the suit on the basis of khula and directed the wife to return the house which was given to her as dower at the time of marriage. The appellate Court allowed the appeal of wife and converted the dissolution of marriage on the basis of cruelty. The Supreme Court of Pakistan maintained the judgment of the High Court.
' In the case reported as Abdul Hafeez v. Shamaila Bibi and 2 others [2013 M LD 1148], this Court observed thatinfliction of injury was not requirement of law for proving the fact of cruelty.
' In the case reported as Mst. Amreen v. Muhammad Kabir [2014 SCR 504] this Court observed that cruel attitude is not confined only to the extent of physical violence, it includes mental torture, hateful attitude of husband or other inmates of the house and also includes the circumstances in presence of which the wife is forced to abandon the house of her husband.
' In the case reported as Muhammad Sabil Khan another v. Saima Inshad [2014 SCR 718] it was observed by this Court that for proving cruelty it is not necessary that physical assault or injury is required to be proved rather sometimes, the conduct and behavior can also be treated by the Court as cruelty.
4. While arguing the case of maintenance charges, counsel for the appellant, Sadia Shafique, argued that the appellant was ousted from .The house of her husband on 27.6.2010. She is entitled for maintenance charges till January 2014 because the Family Court passed the decree of dissolution of marriage on 5.10.2013 and till the period of iddat she is entitled to maintenance charges. The Shariat Court assigned no reason for partly accepting the appeal of the respondent for payment of allowance till the date of filing of suit.
5. While arguing the appeal on the recovery of dower amount, the learned counsel argued that the findings recorded by the Family Court and affirmed by the Shariat Court are not maintainable. It is proved that the ornaments were snatched by the husband but the Family Court and the Shariat Court incorrectly observed that she is not entitled to the recovery of dower.
6. The learned counsel pressed the appeal relating to the dowry articles to the extent of golden ornaments weighing 24 tola, which were given to the appellant by her parents.
7. While replying the argument of the counsel for the appellant, Mr. K. D. Khan, advocate, submitted that in the written statement it was categorically stated by the defendant Azhar Bashir that the appellant herself abandoned the house and took away all her golden ornaments. She also took away the dowry items in the company of her family members. The learned counsel further submitted that cruelty is not proved from the evidence of the plaintiff. Her witnesses Kh. Mushtaq and Tariq Aziz has not support the version of the plaintiff. Lastly the learned counsel submitted that the plaintiff sought the decree on the ground of khula. She has not claimed the decree of dissolution of marriage on the ground of cruelty, therefore, in appeal she cannot claim as such.
8. After hearing the arguments while recording the judgment, we noted that the Family Court ordered for payment of maintenance charges at the rate of Rs.20,000/- per month on the ground that in the Nikah Nama it is entered that the husband will pay the pocket money to the wife @ Rs.20,000/- per month, therefore, we felt advised to hear the counsel for the parties on the point that whether the Family Court has got jurisdiction to order for payment of any money which is entered as special condition and under the schedule of the Family Court Act, 1993, the Family Court has got jurisdiction in the matter or not? A notice was accordingly issued to the counsel for the parties and the arguments were heard on .This point.
9. Mr. K. D. Khan, advocate, counsel for the appellant, Azhar Bashir, submitted that under Section 5 of the AJ&K Family Court Act, 1993 the Family Court has got jurisdiction to hear the matters enumerated in the schedule of the Act, 1993, which includes, (1) dissolution of marriage; (2) dower;
(3) maintenance; (4) restitution of conjugal rights; (5) custody of the children; (6) guardianship;
(7) jactitation of marriage; and (8) dowry. The learned counsel submitted that anything in excess of this doesn't come within the jurisdiction of the Family Court. A special condition like payment of pocket money doesn't fall within the meaning of maintenance charges. The Family Court has got no jurisdiction to entertain and adjudicate upon the matter. The learned counsel also argued that any such condition, which is not recognized in Quran and Hidayais illegal. It has no value. The learned counsel referred to Mauta Imam Malik, Hadith No.24. The learned counsel further submitted that the plaintiff voluntarily left the house of her husband in his absence and took away the entire dowry items with her, therefore, she is not entitled to the maintenance charges.
10. While controverting the arguments, Mr. Abdul Rasheed Abbasi, advocate, counsel for the plaintiff-appellant Sadia Shafique, argued that cruelty is proved and it is also' proved that she was ousted from the house. The learned counsel submitted that the suit is net for recovery of pocket money as special condition. The plaintiff filed suit for maintenance charges and the defendant had admitted that it is a suit for maintenance charges, therefore, it is covered under Section 5 read with schedule of the Family Court Act, 1993. The learned counsel relied upon the cases reported as Abdul Khailq v. Sidra Khaliq and 3 others [2014 SCR 280] and Mst. Antreen v.
Muhammad Kabir [2014 SCR 504] and argued that special condition can be considered as maintenance. He also relied upon the cases reported as Muhammad Ashfaq v. Mst. Aqsa and 3 others [2009 SCR 167] Muhammad Ramzan v. Umran Khan [1995 CLC 1947], Muhammad Ajaib v.
Tasleem Wakeel [2013 M LD 305] and Firdos Bakhat v. Javed Khan through Attorney and another 2005 PCr.LJ 988. The learned counsel argued that the suit is for maintenance. Husband, rival appellant, is a rich person. His monthly income is Rs.95,000/- per month, therefore, the decree is correctly passed.
11. We have heard the learned counsel for the parties and perused the record.
12. In her suit for dissolution of marriage, the plaintiff-appellant, Sadia Shafique, alleged that her marriage was solemnized on 1.5.2009 with Azhar Bashir against a dower of 20 tola golden ornaments, which was paid and payment of Rs.1,25,000/- was deferred. A condition was imposed by her parents that the plaintiff is the resident of city. She will not live in village area and the husband will arrange for her residence in Muzaffarabad city. Their relations became strained only after 1-1/2 month. Later on the husband shifted to his village. He established a clinic at Chinari. He was posted as. Doctor in a hospital at Hattian Bala. The husband beat her. Her elder brother Tariq came there and brought her to Muzaffarabad. She also alleged that at the time of Nikah her husband had promised to pay Rs.20,000/- as pocket money. He has cot paid the pocket money so far. It is a violation of written contract. 'The defendant refuted the allegations and claimed that he is a doctor by profession and resides at Gujjar Bandi. He is appointed in a hospital at Hattian Balaand has established a private clinic at Chinari. The plaintiff remained with him in his village for some time but later on demanded that she will not live in the village and compelled the defendant to purchase a house in the city. He purchased the same with heavy amount and shifted his wife for some time. Later on he requested her wife that it is not possible for him to live in the city because he is appointed in a hospital at Hattian Bala and runs a clinic at Chinari. On the instigation of her parents and brother she refused to live in. Village and came back with his brother from his village to Muzaffarabad voluntarily and also took away all the dowry items as well as his luggage lying in the city house to her parents' house. He refuted the allegations of mental torture or physical violence. The trial Court after going through the Whole evidence drew the conclusion that cruel attitude is not proved and that from the whole evidence it appears that the parties cannot live as spouses within the limits ordained by Almighty Allah, therefore, passed a decree for dissolution of marriage on the ground of Khula and fixed the remaining dower amount of Rs.1,25,000/- as amount of Khula. The Shariat Court concurred with the judgment of the Family Court.
13. Although it is not the duty of this Court to peruse the evidence but for our own satisfaction we have gone through the evidence led by the parties which consists of lengthy record and reached the conclusion that the fact of cruelty is not proved by the plaintiff-wife. The bone of contention between the husband and wife is that the husband is the resident of a village, who is posted as Doctor in DHQ Hospital Hattian Bala and runs a clinic at Chinari while wife is the resident of Muzaffarabad city. There appears difference between social and living standard of the parties. It appears from perusal of the plaint and evidence adduced by the plaintiff Sadia Shafique that she couldn't reconcile with the husband. She averred in the plaint that her parents imposed a condition that their daughter is the resident of city, she cannot live in the village and the husband has to arrange for her accommodation in city. The husband purchased a house and due to his service and clinic, he couldn't live in the city. The gulf between the spouses widened due to the differences, but the cruelty is not proved. It is correct that cruelty is not confined only to physical torture. We have observed in the case reported as Mst. Amreen v. Muhammad Kabir [2014 SCR 504] that the cruel attitude is not confined only to the extent of physical violence, it includes mental torture, hateful attitude of husband or other inmates of the house and also includes the circumstances in presence of which the wife is forced to abandon the house of her husband.
14. From the evidence, the Family Court as well as the Shariat Court reached the conclusion that plaintiff failed to prove cruelty and since she has stated that she has developed hatred and she cannot live with the husband within the limits ordained by Almighty Allah, iherefore, the Family Court correctly passed the decree on the ground of Khula. There is no illegality in the decree. The appeal of Sadia Shafique merits dismissal.
15. The arguments on maintenance appeal were also heard. The Family Court has granted maintenance charges on the ground that there is a condition in the Nikah Nama that the husband shall pay Rs.20,000/- per month to the wife as pocket money and pocket money is not included in the maintenance charges. Whether theFamily Court has got jurisdiction to order as such or not?
After hearing the arguments, we have carefully perused the suit filed by the plaintiff Sadia Shafique.
The suit is for payment of maintenance charges @ Rs.20,000/- per month. The plaintiff alleged that the husband never paid her maintenance charges, even during the period when she was living with him. She claimed maintenance charges from the date of Nikah till decision of the case. The husband specifically refuted the charge. The law is settled on the point that husband is duty bound to pay maintenance charges to the wife till she is faithful to the husband and lives with him and if she voluntarily leaves the house of her husband, she is not entitled to maintenance charges. This Court in the cases reported as Mst. Amreen v. Muhammad Kabir [2014 SCR 504], observed as under:-- "17. Thus it can safely be concluded that it is the duty of the husband to maintain a wife till she is faithful to him and ready to live with him in his house and perform her part in this respect but if a wife abandons the residence of his husband voluntarily without any reason and is not ready to live with him as his wife then she is not entitled to past or future maintenance. It is further observed that if a wife is ousted from the house by husband or she is forced to leave the house of her husband due to cruelty physical or mental by the husband or other inmates of his family, she is entitled for maintenance charges."
16. While deciding the connected appeal relating to the dissolution of marriage in the earlier part of the judgment, we have agreed with the conclusion drawn by the Family Court that Sadia Shafique voluntarily left the house of her husband, therefore, we are constrained to accept the appeal of Azhar Bashir, appellant, that she is not entitled to maintenance charges.
17. The third appeal filed by Sadia Shafique relates to the dower. It is admitted position that golden ornaments were given to the bride/wife at the time of marriage and an amount of Rs.1,25,000/- was fixed as deferred dower. It is settled law that dower once paid, cannot be demanded for second time through the Family Court. The Family Court has observed that there is no evidence that ornaments were snatched by the husband. For the sake of arguments if it is assumed that the ornaments were snatched, then too, the plaintiff cannot demand the same as dower, some other remedy may be available to the party. As we have already agreed with the Family Court that decree on the basis of Khula was rightly passed by the Family Court and maintained by the Shariat Court, the decree has correctly been passed in lieu of deferred dower of Rs.1,25,000/-, therefore, the appellant Sadia Shafique cannot demand the same.
18. We have also heard the arguments on the appeal relating to dowry. Counsel for the appellant has pressed the appeal only to the extent of ornaments, which, according to the appellant, were given to her by her parents and are in the custody of respondent. Both the Courts below have concurrently recorded that it is not proved that golden ornaments weighing 20 tola were snatched by the husband. There is no illegality in the judgment of the Shariat Court on this score.
The result of the above discussion is that the appeal filed by appellant Azhar Bashir is partly accepted to the extent of maintenance charges. The decree of maintenance charges passed by the Shariat Court is set aside. The plaintiff-respondent is not entitled to the maintenance charges, while all the appeals filed by Sadia Shafique are dismissed with no order as to the costs.