' Ch. Muhammad Ibrahim Zia, J.--All the above titled appeals by leave of the Court have been directed against the consolidated judgment of the Shariat Court dated 1.7.2014, whereby the appeal filed by appellant-wife has been party accepted whereas the appeals filed by the appellant-husband have been dismissed. As identical legal and factual propositions are involved in all the three appeals, therefore, disposal, of same through this consolidated judgment is felt advised.
2. The brief facts necessary for disposal of these appeals as stated are that the contesting parties were husband and wife. After separation, the appellant-wife filed two separate suits in the Court of Senior Civil Judge/Judge Family Court, Muzaffarabad; one for recovery of dower amounting to Rs, 2,50,000/- out of which Rs, 2,30,000/- was to be paid in cash on demand; and the other for recovery of maintenance charges. After necessary proceedings, the trial Court dismissed the suits filed by the appellant-wife to the extent of the claim of ornaments while the suit to the extent of recovery of maintenance allowance was decreed vide judgment and decree dated 28.04.2012. The appellant-wife filed an appeal before the Shariat Court for enhancement of maintenance allowance whereas the appellant-husband filed two counter appeals claiming that the suits were liable to be dismissed in toto. The appeal filed by the appellant-wife was partly accepted to the extent of cash amount of Rs, 20,000/- while was dismissed to the extent of ornaments. The counter appeals filed by appellant-husband were dismissed. Feeling aggrieved, both the parties have approached this Court through separate appeals.
3. Mrs. Bilqees Rasheed Minhas, Advocate, the learned counsel for the appellant-husband, after narration of necessary facts mainly attacked the impugned judgment on the grounds; firstly that according to the pleadings of the parties and evidence brought on record it has been fully established that the plaintiff-respondent voluntarily opted for desertion, therefore, she doesn't deserve for maintenance allowance. According to the celebrated principle of law envisaged in the statutory provisions as well as enunciated by the Courts, the wife who without any justification refuses population with her husband doesn't deserve for maintenance allowance. The Courts below have ignored this important aspect, hence, the impugned judgments and decrees are not maintainable. Secondly; that so far as the decree of Rs, 20,000/- regarding dower is concerned, it is also against the facts as the appellant-husband has proved through the evidence that the same has been paid to the appellant-wife. Thus, the impugned judgments and decrees are not maintainable. She referred to the case reported as Mst. Amreen vs. Muhammad Kabir [2014 SCR 5041 in support of her version. She also forcefully argued that the appellant-husband is a source- less person, thus on this ground, awarding the decree of maintenance is also not maintainable. It is further argued that the agreement `Exh.DA' is an ample proof of the fact that no legitimate claim of dower or maintenance is available to the appellant-wife. If she would have any such claim it would have been settled at the time of the execution of the said agreement. Thus, while accepting the appeal the impugned judgments and decrees be set-aside, consequently the suit filed by the plaintiff-respondent be dismissed.
4. M/s. Raja Shujahat Ali Khan and Raja Tariq Bashir Khan, Advocates, the learned counsel for the appellant-wife, in counter appeal while refuting to the arguments of the counsel for the appellant- husband submitted that all the arguments are baseless having no nexus with the facts of the case.
In the light of the pleadings of the parties especially the averments of the written statement, no further proof is required regarding the cruel attitude of the appellant-husband. The appellant-wife has succeeded in establishing the fact that she met cruel treatment on the hands of husband and was forced for desertion. Thus, the decree of maintenance allowance is righty passed which doesn't call for any interference. He further submitted that the ground that the appellant-husband is a source less person is afterthought. Neither this plea has been taken in written statement nor in this regard any issue has been framed rather from the appreciation of evidence, it is established that the appellant is a wealthy person who himself deposed that he is a contractor. While dealing with the controversy of dower he submitted that neither the payable amount of Rs, 20,000/- dower has been paid to the respondent nor the ornaments which were kept in locker by the husband have been subsequently returned to her. He submitted that the fact of keeping the ornaments in the locker is admitted fact in the light of the pleadings, thus, the husband has to discharge the burden of proof that the ornaments have been delivered to the wife after taking out the same from the locker but no legal evidence in this context has been produced by the appellant-husband.
Thus, the appellant-wife deserve for a decree of recovery of full amount of dower. To this extent the impugned judgment partially requires modification, hence, by accepting the counter appeal filed by the appellant-wife the decree of whole amount of dower be granted.
5. Mrs. Bilqees Rasheed Minnas, Advocate, in rebuttal submitted that the fact of delivery of ornaments after taking out of locker has been fully established and the argument on behalf of plaintiff in this regard is baseless.
6. We have considered the arguments advanced at bar and also gone through the record. In the light of the arguments, in this case, the material propositions to be attended are:--
(i) whether the plaintiff-wife deserves for maintenance allowance; and
(ii) whether the whole amount of dower is payable to her.
7. So far as the first proposition is concerned, both the Courts below have recorded concurrent findings of facts based on proper appreciation of evidence. The contention of counsel for the appellant-husband that the appellant-wife herself opted for desertion without any justification appears to be baseless. Although in this regard proper appreciation of evidence has been made by the Courts below but in our opinion the averments made in the written statement by the appellant-husband leave no room for any other evidence. It will be suffice to refer here Para 5 of the written statement which reads as under:-- {{URDU TEXT}} ' It is further averred in the written statement that: ' The above reproduced averments of the written statement clearly speaks that there is complete lack of confidence, mutual respect, harmony, sacrifice and sympathy between the spouses. The Allah Almighty the creator of the Universe has declared the relationship of spouses very special and in Verse No, 187 of Surah Albaqrah, the spouses have been declared to be the garments of each other. The above reproduced averments of written statement appears to be destructive of this relationship.
8. These referred averments further leave no room for any other opinion except the one that such serious allegations are suffice for causing mental torture to a prudent person. It has been held in so many cases that such conduct amounts to cruelty. The relationship of the spouses is based on mutual confidence, respect, harmony, sacrifice and sympathy, whereas, the absence of such ingredients create the atmosphere unsuitable for wife and in these circumstances the desertion is a natural consequence and the wife cannot be blamed that she has voluntarily opted for desertion and failed to discharge her matrimonial obligations amounting to disentitle her for maintenance allowance.
9. The learned counsel for the appellant has relied upon Mst. Amreen's case, [2014 SCR 504], but the observation in Para 17 of this judgment is not helpful to the appellant wherein it has been observed as under: "..... 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."
' In view of the peculiar facts of this case, in our opinion the conduct of the appellant-husband forced the appellant-wife to opt for desertion, thus, she is entitled for maintenance allowance and on this point the findings recorded by the Courts below are quite consistent with the record of the case and requires no interference.
10' Now, we attend the other legal proposition regarding the controversy of dower. There is no dispute regarding the amount of dower. The only dispute is of its satisfaction. In the light of the ornaments given marriage the dower was fixed as Rs, 2,50,000/- out of which Rs, 8 given to the plaintiff-wife. It is also an admitted fact in the light of the pleadings of the parties that subsequently these ornaments were taken back from the appellant-wife and kept by the appellant-husband in the locker of the UBL Bank, Muzaffarabad. Whether the payment of Rs, 20,000/- payable amount of dower and return of ornaments after taking out from the locker to the appellant-wife has been proved from evidence, has to be judged in the light of the material brought on record. In this regard except the appellant-husband's own statement no other evidence is available. Regarding payment of Rs, 20,000/-, he stated that the same was paid in the bed room in May, 2007 and there was no other person. Except this deposition he has not brought on record any satisfactory evidence or detail. This statement has been recorded after 5 year's period of the alleged payment of the dower but no other witness supports the version of the appellant-husband. Same like, neither the appellant has produced any documentary evidence of / taking out the ornaments from the locker nor any other evidence of handing over the same to the respondent-wife. Thus, these facts remained unproved, whereas the appellant-wife during the trial of the case attempted to bring on record the documentary evidence of operating the locker. She submitted an application which was objected by the appellant-husband and the trial Court vide order dated 26.12.2011 rejected the application on the ground that the plaintiff has not mentioned these material propositions in her plaint and neither the names of witnesses or office of Bank has been included in the witnesses list.
Be that as it may, however, in our opinion the fact of operating the locker and keeping ornaments in the locker has been clearly admitted by the appellant-husband in his written statement. In this regard appreciation of Para 4 of the pleadings is sufficient, which reads as follows:- {{URDU TEXT}} ' The appellant-husband has replied to the bereavements in Para 4 of the written statement as follows: ' Thus, it is admitted by the appellant-husband that the ornaments given in lieu of the dower have been taken from the wife and kept in locker by him. This material aspect has been ignored by the trial Court while making appreciation of the evidence. The observation of the trial Court that the burden of proof of possession of the ornaments was on appellant-wife appears to be improper as this fact in view of admission of the appellant-husband in the written statement needs no further proof. This material aspect has not been properly attended by the trial Court which resulted into drawing improper conclusion and the appellate Court has also failed to make proper appreciation in this regard. Whereas the overall appreciation of the evidence clearly leads to the conclusion that the appellant-husband has failed to prove that the dower has been paid or satisfied. In this state of affairs the decree of dower requires modification. In view of the pleadings of the parties and evidence brought on record it is fully established that the whole amount of dower is unsatisfied.
Thus, the decree of dower is modified and the suit of the plaintiff-respondent for recovery of dower is decreed to the tune of Rs, 2,50,000/-.
11. The argument of the learned counsel for the appellant-husband is that as the plaintiff-wife has not advanced any claim of maintenance allowance or dower at the time of execution of agreement Exh. "DA" hence, she has waived her right. In the light of peculiar facts and contents of agreement, it appears to be weightless. The agreement is only regarding the handing over of custody of minor children and no other matter appears to have been considered or made part of it. Rather according to the spirit of this agreement, desertion and differences of the spouses is established.
12. For the above stated reason Appeals Nos. 259 and 260 filed by appellant-husband having no substance are hereby dismissed, whereas the counter Appeal No, 261 filed by appellant-wife is partially accepted and the decree of dower stands modified in the above stated terms. With these observations all the three appeals stand disposed of.
(R.A.) .