1. This second appeal has arisen out of the following circumstances :- Mst. Maqsooda Begum, the appellant sued for dissolution of marriage in the court of Sub-Judge, Dudyal while the respondent brought a suit for restitution of conjugal rights. The suit of the.Appellant was followed by the suit of the respondent.
2. Both the suits were consolidated by the trial court for disposal and the following issues were accordingly framed after recording the statements of the parties
(1) Whether the plaintiff-woman was being met by an unequal treatment from her husband as compared to the other were preferentially treated during her living with the husband, if so, what would be its effect on the suit ? O. P. D.
(2) Whether the ornaments advanced to the plaintiff were snatched away by the defendant and on demand of return she was beaten and in this manner his treatment with the were amounted to cruelty and violence ? O. P. P.
(3) Whether the plaintiff is entitled to a decree by 'Khula' and on what terms ? O. P. P.
(4) Whether the parents of the plaintiff are a bar in her living with her, husband ? O. P. On husband.
(5) Relief.
3. Both the courts below dismissed the suit of the plaintiff-appellant and decreed the suit of the respondent. According to the courts below, the plaintiff/--appellant failed to prove the issues, the onus of which to be discharged was placed on her.
4. After hearing the learned counsel for the parties and the parties them--selves, the perusal of the record was accordingly made so as to proceed for determination of the subject matter in issues between the parties.
5. The learned counsel for the respondent has urged vehemently that there being concurrent findings of facts, the same are nit open to attack in second appeal. This could have been so, no doubt, if I could be able to hold that evidence of the plaintiff was correctly appreciated by the courts below but I think they have miserably failed in appreciation of the evidence on record. The severe beating to the woman was forcefully attributed to the appellant by the plaintiff respondent while appearing as a witness of her own to which no rebuttal'-was made by the respondent himself as warranted by law by making an appearance in the witness-box as a witness of his own. He never cared to refute the statement of the plaintiff which she gave as a witness of her own, by making a statement before the Court.
6. The statement made by the plaintiff inspires confidence. The truth of her statement is found confirmed and corroborated by the statement of her father to whom the incidents of beatings were narrated by her as well as the statement of a Medical Officer, namely Kh. Atta Ullah, who examined the plaintiff after she was once beaten by her husband and found as many as four injuries on her person, and to that effect a certificate Exh. P. A. Was duly issued by him. The statement of the Medical Officer was brushed aside by both the courts below without any reason whatsoever. This could be no reason in discarding the statement of the Doctor that as the certificate given by the Medical Officer did not bear - the identification mark of the plaintiff; it could not be acted upon. She was very well recognized by the Medical Officer before the trial court that she was the woman who was examined by him, as a result of which examination, the said certificate concerning the injuries inflicted on her person was issued to her. The witnesses namely Muhammad, Abdul Aziz and Haji Muhammad Taj produced by the respondent . Do not repudiate the statements of the plaintiff and her father in respect of the beating given to her in any manner. A certified copy Exh. P. A. Of an alleged statement of the plaintiff on an application under section 107, Cr. P. C. Before a Magistrate was made a hot subject of discussion by the courts below thereby stating that the plaintiff made a statement before the Magistrate that she was willing to live with her husband but her parents and some other persons did not allow her to live with her husband.
7. This statement including the very application was never admitted by the plaintiff having at all been made by her. When she denied to have made statement before a Magistrate on presentation of an alleged application it was required by law that the original application and the statement allegedly made thereon by the woman before the Magistrate ought to have been brought on record for confrontation in her view before the trial court. But this was not done.
8. Merely, a certified copy Exh. D. A. Of the alleged statement brought on record cannot be used as a piece of evidence in proving the facts unless the original could be brought on record so as to be confronted to her and proved thereof in accordance with law. And any deposition of a witness . In respect of application under section 107, Cr. P. C. And a proceeding thereof cannot be admitted in evidence for being hearsay and that being hearsay is admitted by the witnesses of the defendant themselves when they say that it was heard from Bostan Khan defendant who even never entered the witness box to depose to as such.
9. The contents of copy Exh. D. A. Were not admitted by the plaintiff and according to her herein some other woman was made to personify her so as to obtain a statement against her and so it was incumbent upon the respondent to prove the original application under section 107, Cr. P. C. And a statement made thereon that they were actually made by the plaintiff herself which then could not be falsified by her. It could not be proved by the defendant that it was Mst. Maqsooda Begum, the plaintiff who made a statement before the Magistrate against her parents intruding her living with the husband.
10. On the efforts made by the respondent, it was stated by his witnesses that Mst. Maqsooda Begum was brought to the house of the respondent once by all. Two of the witnesses, namely Haji Muhammad Taj and Abdul Aziz stated that it was in the very evening of the day of her coming to the house of the respondent that she returned to the house of her parents as promised and it all happened in presence of all the three witnesses but Muhammad states that she after having come to the house of her husband went back the next day alongwith her mother. If all the three as claimed by them were in fact the persons bringing about the reconciliation of the parties in the manner above, there could not have been any contradiction in their statements in respect of coming and going of the woman back.
11. Haji Muhammad.Taj has also stated that Mst. Maqsooda Begum and her father were crying that she was being beaten by her husband while negotiation was going on and who further expressed her apprehension of being beaten, if she was sent back to the house of her husband but she was satisfied that in case the husband would resort to beating as apprehended, an action under `Shariat' law would be taken against him. It all shows that Mir. Maqsooda Begum is not wrong to blame her husband in respect of the beating given to her while living together.
12. During the pendency of this appeal it was tried utmost that a reconcili--ation could be brought about between the spouses and while doing so it was offered by the respondent -that in case Mst.
13. Maqsooda Begum makes oath on the Holy Qur'an that a sum of Rs.10,000 was not advanced to the father of the plaintiff for her and that the golden ornaments weighing 37 tolas were not with the plaintiff and further that any of the ornaments were snatched away by the respondent, he would like to leave the plaintiff without any charge or encumbrance on her. But when she appeared before the court and accepted his offer, he resiled from the offer made and so the matter could not be resolved on the oath expected.
14. The plaintiff-appellant claimed that a sum of Rs.32.00 was fixed as dower, to which claim there was no specific denial on the part of the respondent and no other amount of 'Mahr' was disclosed in the written statement by him nor in the statements prior to the framing of issues.
15. It was not expressly denied that a sum of Rs.32.00 was not fixed as dower. No other amount over and above Rs.32.00 was asserted to have been made as such. Nothing of the sum of Rs.10,000 was given as a clue in the written statement, nor in the said oral statement by the respondent. It was afterwards on 11-10-1977 that a suit for restitution of conjugal rights was brought before the court wherein ornaments of gold of the value of Rs.23,100 and Rs.10,000 in cash were claimed to have been given to the parents of the plaintiff-appellant for her which according to him still lie with her parents but nothing of `Mahr' was mentioned therein. Such a huge claim, if true, could not be left out of the written statement filed by him.
16. Obviously it was all afterthought. No benefits were passed to the plaintiff appellant in any manner.
17. If there had been such a case that an amount of Rs.10,000 and 37 tolas of gold were with the parents of the plaintiff-appellant for her ; if was but natural so as to be stated in the written statement and essentially at the time of making a statement in advance of issues to be framed by the trial Court.
18. Both the courts below have totally ignored this aspect of the case and thus failed to appreciate the case as it was framed by the plaintiff appellant.
19. The circumstances speak aloud to indicate that the appellant is not prepared to live with the respondent as his were at any cost and I find that she is not in a mood to accept the respondent as her partner even for the sake of her son. She wants separation and in the above circumstances she was able to substantiate all the issues the onus of which was placed on her and respondent was not successful in proving issue No. 4 as was rightly held by the trial court that no interference on the part of the parents of the plaintiff appellant is respect of her living with the respondent could be proved by him and it was also dittoed by the lower appellate Court.
20. The cause of severe beating might be the result of the protest lodged by the plaintiff to the respondent against the preferential treatment given to the other were and possibility of snatching away the ornaments also cannot be ruled out because it was not said in the case of dissolution of marriage that ornaments lay with the parents of the plaintiff-appellant.
21. The relations of the parties appeared to have been strained soon after the marriage as is evident from the subject matter of the suit for restitution of conjugal rights. She, left the house of the respondent unhappily as was disclosed to his witnesses by the respondent himself who interrupted in the matter of discordance and tryingly, interposed whereof.
22. A small time of living together was passed by the spouses. The appellant bad to have a recourse to a criminal Court against the respondent where a complaint under sections 324, 325, 342 and 352, P.
23. C. Read with sections 14 and 15 of the Islami Tezeerati Act was filed by her.
24. The severe beating to the appellant as I have said just above is indicative of the fact the life of the appellant was made miserable by the respondent, the logical result of which is that she is away from the respondent and despite the fact that a son was also born to her from the respondent after her departure from his house at the house of her parents and she is determined not to go back as were of the respondent even for the sake of her son. The respondent had been cruel to the appellant and circumstance show that it was habitual one per force of which she had to leave his house while pregnant.
25. That being so, I am convinced that Mst. Maqsooda Begum appellant and respondent cannot live together so as to pass their lives peaceful living within the limits ordained by `ALLAH' and keeping all the circum--stances in view, I am constrained to hold that Mst. Maqsooda Begum is entitled to a decree of dissolution of marriage as claimed by her and the suit of the respondent is liable to be dismissed as he was unable to substantiate by production of evidence worthwhile inasmuch as that he even failed himself to state his case by standing in the witness box before the trial Court.