' MOHAMMAD AZAM KHAN, C.J.- The above titled appeals by leave of the Court arise out of single judgment of the Shariat Court dated 1 1 th February, 2014, whereby appeals filed by Muhammad Zaheer-ud-Din Babar have been dismissed, whereas the appeal filed by Mst. Shazia Kousar has partly been accepted and while modifying the decree, maintenance charges have been enhanced. Since all the appeals arise out of the same matter and from the consolidated judgment, therefore, these are being disposed off through a common judgment.
2. Necessary facts for disposal of the appeals are that Muhammad Zaheer-ud-Din Babar and Mst.
Shazia Kousar were wedded husband and wife. Out of their wedlock a minor daughter, Aqeela was born. The relations between the parties became strained, whereupon, Mst. Shazia Kousar filed suits; one for dissolution of marriage and the other for recovery of maintenance charges for herself and minor daughter and for payment of dower, while Muhammad Zaheer-ud-Din Babar filed suit for restitution of conjugal rights. After necessary proceedings, the Judge Family Court, Kotli decreed the suit for dissolution of marriage on the ground of cruelty and awarded maintenance charges to Mst. Shazia Kousar and minor daughter at the rate of Rs.2000/- per head, per month, while the suit for recovery of dower and restitution of conjugal rights were dismissed. Dissatisfied, the appellant, Muhammad Zaheer-ud-Din Babar filed three appeals while Mst. Shazia Kousar filed an appeal for enhancement of the maintenance charges. After necessary proceedings learned single Judge in the Shariat Court partly accepted the appeal filed by Mst. Shazia Kousar, enhanced the maintenance charges awarded to Mst. Shazia Kousar and Ageela, her minor daughter, while appeals filed by Muhammad Zaheer-ud-Din Babar were dismissed.
3. Mr. Khalid Yousaf Chaudhary, Advocate, counsel for the appellant, Muhammad Zaheer-ud-Din Babar submitted, that the judgments and decrees of the Family Court as well as the Shariat Court are against law and the record. Mst. Shazia Kousar is not entitled for maintenance charges because she herself voluntarily left the house of her husband. It is settled law that when a wife voluntarily leaves the house of her husband, she is not entitled for maintenance charges. The learned counsel further submitted that initially awarding of maintenance charges in excess of the income of the appellant was not warranted and further enhancement in the maintenance charges by the Shariat Court is also against the record. Both the Courts below have failed to consider the record and awarded the maintenance charges only on the ground that the appellant is running a Poultry Farm, without determining the real income of the appellant.
4. While controverting the arguments advanced in the appeal titled Muhammad Zaheer-ud-Din Babar v. Mst. Shazia Kousar and another, Ch. Muhammad Ilyas, Advocate, counsel for the appellants, Mst. Shazia Kousar and another submitted that the judgment of the Family Court and the Shariat Court to the extent of awarding the maintenance charges and enhancement of the same is perfectly legal. He further argued that the appellants are entitled for maintenance charges keeping in view the rising costs in the utilities in future but both the Courts have not considered the situation as the costs, of living are rising day by day. The learned counsel argued that the appellant, Mst. Shazia Kousar has proved her case for recovery of dower which was illegally dismissed.
5. We have heard the learned counsel for the parties and perused the record. Mst. Shazia Kousar filed three suits; one for dissolution of marriage; second for grant of maintenance charges and the third for payment of dower in shape of golden ornaments, while Muhammad Zaheer-ud-Din Babar filed a suit for restitution of conjugal rights in the Court of Senior Civil Judge, vested with the powers of Judge Family Court, Kotli. All the suits were consolidated. The Judge, Family Court through judgment and decree dated 16th May, 2013 passed the decree for dissolution of marriage on the ground of cruelty, the suit for maintenance charges for Shazia Kousar and minor was decreed and Shazia Kousar was declared entitled for maintenance charges from 3rd May, 2012 to 16th May, 2013 at the rate of Rs.2000/- per month and further maintenance charges up to the expiry of the period of Iddat at the rate of Rs.2000/- per month, whereas the minor Ageela was awarded maintenance charges from 3rd May, 2012 at the rate of Rs.2000/- per month along with 10 % increase per-annum.
The other two suits; one for recovery of dower in shape of golden ornaments filed by Mst. Shazia Kousar and the other filed by Muhammad Zaheer-ud-Din Babar for restitution of conjugal rights were dismissed. Both the parties filed appeals in the Shariat Court of Azad Jammu and Kashmir. A learned single Judge in the Shariat Court dismissed the appeals filed by Zaheerud-Din Babar, whereas the appeal filed by Shazia Kousar was partly accepted and maintenance charges were enhanced from Rs.2000/- per month to Rs.30000-. Per month, Rs.5000/- as expenditure incurred on the birth of minor, Ageela and maintenance charges of minor Ageela were enhanced from Rs.2000/- per month to Rs.3000/- per month along with 10% increase per-annum till her marriage.
6. The main thrust of the arguments of the counsel for the appellant, Muhammad Zaheer-ud-Din Babar is that Mst. Shazia Kousar failed to prove the fact of cruelty. She voluntarily left the house of the husband, therefore, she is not entitled to the maintenance charges. The learned counsel submitted that the Family Court as well as the Shariat Court failed to consider this aspect of the case. The learned counsel referred to the statement of Mst. Shazia Kousar, who stated in her Court statement that she is not ready to live with her husband at any cost. The two Courts have committed misreading and non-reading of the record.
7. We have carefully considered the argument of the counsel for the appellant, Muhammad Zaheer-ud-Din Babar. Although, it is not the duty of this Court to scrutinize the evidence but for our own satisfaction that whether any misreading or non-reading of evidence has been committed by the Courts below, we have gone through the whole evidence produced by the parties and have come to the conclusion that there is no misreading or non-reading of the evidence to the extent of factum of cruelty. The argument is misconceived. The cruelty is not confined only to physical torture. Even the cruel attitude is not confined only to the extent of physical violence, it includes the mental torture, hateful attitude of husband or other inmates of the house and also includes other circumstances, in presence of which the wife is forced to abandon the house of her husband. We are fortified in our view by the judgment of this Court delivered in case reported as Mst. Amreen v.
Muhammad Kabir [2014 SCR 504], whereby while dealing with the question of cruelty it has been observed in para 15 of the judgment as under:-- "15. The common question of law involved in the appeals is that if a wife voluntarily abandons the house of the husband without any reason, whether she is entitled for maintenance charges or not.
It may be observed that it is the basic duty of the husband and he is bound to maintain his wife.
Section 272 of Mohammdan Law by Mullah provides that husband is bound to maintain his wife so long she is faithful to him and obeys reasonable orders but he is not bound to maintain a wife who refuses herself to him or otherwise disobeys. The refusal or disobedience is justified if dower is not paid or she is forced to live with her husband despite cruelty. Section 278 postulates that if a husband refuses to maintain his wife, she may sue for maintenance. It is the duty of a Muslim wife to perform her part of obligation and then to claim maintenance. The husband may refuse to maintain his wife when she refuses to live with him and if a wife refuses to live in the house of her husband and not ready to perform her part of duty and denies to live with him as his wife, she is not entitled for maintenance. But in case, where cruelty to her is established and the circumstances created by the husband or in the house of husband are such that the wife cannot live there peacefully and she has to abandon his house. When wife successfully proves that she is forced to abandon the house of her husband then she is entitled for maintenance charges. The question, whether the wife has voluntarily left the house of her husband or she was ousted from the house or she was forced to leave the house due to cruel attitude has to be decided on the basis of evidence. The cruel attitude is not confined only to the extent of physical violence, it includes the mental torture, hateful attitude of husband or other inmates of the house and also includes other circumstances, in presence of which the wife is forced to abandon the house of her husband. The cruelty is defined in an unreported case titled Shamim Akhter v. Arshad Mehmood (Civil Appeal No.57 of 2010, decided on 21.02.2013), it was observed as under:--- "Under Clause (a) of ground (viii), if the husband treats the wife with cruelty, assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill- treatment, Then too the wife is entitled to have a decree of dissolution of marriage. The reading of aforesaid section reveals that marriage can be dissolved on all the grounds or any one of them if proved by the wife. Ground (viii) of Section 2 of the Act makes it abundantly clear that it is not necessary that there shall be physical ill-treatment rather the cruel conduct and cruel treatment is a valid ground for dissolution of marriage. The word 'cruelty' in Black's Law Dictionary (Eighth Edition) is defined as under:- 'Cruelty. The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage.' 'legal cruelty. Cruelty that will justify granting a divorce to the injured party; specific, conduct by one spouse that endangers the life, person, or health of the other spouse, or creates a reasonable apprehension of bodily or mental harm. ' mental cruelty. As a ground for divorce, one spouse' course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.
' Physical cruelty. As a ground for divorce, actual personal violence committed by one spouse against the other.'
' The dictionary meaning of word 'cruelty' clearly shows that cruelty may be mental or physical.
Cruelty by conduct of a spouse also justifies the grant of divorce. This Court in a case reported as Syed Imtiaz Hussain Shah and another v. Mst. Razia Begum and 3 others [2011 SCR 233] observed as under:- The argument advanced on behalf of the appellant that the factor of cruelty is not proved because none of the witnesses stated that he has witnessed any sign of injury caused by the appellant on the person of the respondent. Such an argument is itself indicative of the cruel mentality. For proof of cruelty, infliction of injury is not required by law. In matrimonial matters, the Courts have been treated false allegation against a wife to be a cruelty which results into mental torture and loss of mutual confidence."
Thus, the factum of cruelty is proved from the record. There appears no illegality in the judgments of the Courts below on this point.
8. Mr. Khalid Yousaf Chaudhary, Advocate, counsel for the appellant, Muhammad Zaheer-ud-Din Babar, forcefully argued that the appellant is a poor person and has no source to pay such an heavy amount of maintenance charges awarded by the Courts below. He submitted that the Family Court awarded the maintenance charges on the ground that the appellant is running a Poultry Farm and has enough resources to pay the maintenance charges. He submitted that in the written statement, the appellant categorically stated that he is a poor labourer, his monthly income is Rs.3000/4000/- per month, therefore, he has no source to pay such an heavy amount of maintenance charges, but the Family Court as well as the Shariat Court failed to consider this aspect of the case. The learned counsel referred to the case reported as M. Saleem Ahmed Siddique v. Mst. Sabira Begum and others [2001 YLR (Karachi) 2329], whereby it was observed as under:--- ".. No doubt father is bound to maintain his children and past maintenance of wife is also permitted in Islamic Law but the dominant factors governing the adjudication of such a question stated above cannot be overlooked. Both the Courts below had fallen into error in assessing the circumstances in the above perspective, their findings on quantum/rate of maintenance, therefore, cannot be sustained."
9. We have considered the argument with utmost care and perused the record. We agree with the rule laid down in the case reported as M Saleem Ahmed Siddique v. Mst. Sabira Begum and others [2001 YLR (Karachi) 2329] that under the injunctions of Islam a person cannot be ordered to pay the maintenance charges, beyond his capacity. This Court in the case reported as Muhammad Nazim v. Muneer Akhtar and 2 others [2015 YLR 1433] as also observed as under:- ".. It is settled law that the husband or father cannot be burdened for payment of maintenance charges more than that of his capacity ......
Similarly in the case reported as Mst. Amreen v. Muhammad Kabir [2014 SCR 504], it was observed as under:- "24. It is on record that the respondent is working abroad and has contracted a second marriage.
He is maintaining his second wife. He is a resourceful person. The Court has power to grant maintenance charges keeping in view the financial position of the father and his economic resources."
' In the light of the dictum laid down by this Court, we have perused the record. It is true that in the written statement the defendant,. Muhammad Zaheer-ud-Din Babar, has taken a specific stand that he is a poor labourer and has no resource to pay such an heavy amount of maintenance charges. His monthly income is Rs.3000/4000/- but, while appearing as a witness in the Family Court, he has not uttered even a single word in support of his assertion that he is a poor labourer and his monthly income is Rs.3000/4000-. On the other side, the plaintiff, Mst. Shazia Kousar, specifically alleged that the defendant is running a Poultry Farm and his monthly income is Rs.35,000/- The witnesses of the plaintiff also corroborated the version of the plaintiff, Mst. Shazia Kousar. The appellant failed to point out any misreading or non-reading of the record. The appeal merits dismissal.
10. The appeal titled Mst. Shazia Kousar v. Muhammad Zaheer-udDin Babar, arisen out of the suit filed for recovery of dower in the shape of golden ornaments. The Family Court as well as the Shariat Court after perusal of record and evidence of the parties drew the conclusion that the golden ornaments were handed over by Muhammad Zaheer-ud-Din Baber to the father of Mst.
Shazia Kousar. Both the Courts below recorded concurrent findings on the fact that the ornaments were handed over to the father of Mst. Shazii Kousar. The argument of Ch. Muhammad Ilyas Advocate, is that the witnesses have admitted that ornaments were lying with the husband and these were not handed over to the wife. The Family Court in its judgment has reproduced the statements of the witnesses who specifically stated that panchayat was convened and. It was decided that three members of the panchayat will go to the house of the father of Mst. Shazia Kousar and handover the ornaments to her father and then Mst. Shazia Kousar will accompany her husband. According to Muhammad Hussain, witness, two witnesses member of the panchayat along with Zaffarullah went to the house of the father of Mst. Shazia Kousar and handed over the ornaments to him and then Mst. Shazia Kousar came back to the house of her husband. There is no misreading or non-reading of the evidence. The Concurrent findings of fact recorded by the two Courts that ornaments were handed over to the D father of Mst. Shazia Kousar, are conclusive.
There is no illegality in the judgment of the Shariat Court. The appeal merits dismissal.
The result of the above discussion is that finding no force in all the three appeals, are hereby dismissed with no order as to the costs.