MOHAMMAD AZAM KHAN, C J.-- The captioned appeal by leave of the Court arises out of the judgment of the Shiariat Court dated 14.12.2009 whereby appeal filed by the appellant herein, was dismissed.
2.Necessary facts for disposal of the present appeal are that the appellant filed a suit for dissolution of marriage on 5th January 2005 in the Court of Judge Family Court, Mirpur, on the ground of non-payment of maintenance charges, non-performance of marital obligations, cruelty and alternately on the ground of 'Khula'. It was alleged that after contracting marriage, the plaintiff remained with the defendant for a period of six months. During this period the attitude of defendant remained cruel towards the plaintiff and he continuously kept on beating her and ultimately thrown her out of house. She is living with her parents for the last about four years. The defendant failed to pay her maintenance charges and also failed to perform marital obligations.
The defendant-respondent also filed a suit for restitution of conjugal rights in the same Court on 19th May 2005. After necessary proceedings the Judge Family Court decreed the suit on the ground of 'Khula' provided she return the golden ornaments, weighing 3 tolas. The appellant filed an appeal in the Shariat Court of the Azad Jammu and Kashmir on the ground that she has proved her case in respect of cruelty, non-payment of maintenance charges and non-performance of marital obligations, therefore, it was enjoined upon the Family Court to grant a decree on the basis of these grounds and not on the ground of khula. A learned Judge in the Shariat Court dismissed the appeal, hence this appeal, by leave.
3.Miss Ghazala Haider Lodhi, Advocate, while arguing on behalf of the appellant, contended that the appellant has proved from cogent evidence that the attitude of defendant-respondent was harsh and cruel towards the appellant during the period she remained as wife with him and after six months he threw her out from the house after beating her. She contended that she has also proved that she is living with her parents for the last about 4 years. During this period the husband neither maintained her nor did perform the marital obligations, as such it was enjoined upon the trial Court to pass a decree on the basis of these grounds. Instead, the trial Court passed a decree on the ground of 'Khula' against the return of golden ornaments weighing 3 totals. She further argued that the trial Court as well as the Shariat Court failed to consider the evidence produced by the appellant. It is a clear case of misreading and non-reading of evidence. Had the learned Judge in the Shariat Court perused the record, the statements of witnesses produced in the Court and that of the appellant produced in the Court, the only result possible was that a decree on the basis of cruelty, non-payment of maintenance charges and non-performance of marital obligations has to be granted.
4. While controverting the arguments, Mr. Muhammad Riaz Tabbasum, Advocate, counsel for the other side, argued that there are concurrent findings of facts recorded by the two Courts below.
The appellant failed to prove the fact of cruelty and the concurrent findings of facts recorded by the Courts below cannot be disturbed in second appeal. The learned counsel argued that wife cannot claim a decree of dissolution of marriage on the basis of non-payment of maintenance charges and non-performance of marital obligations she is not willing to live with the husband. A women can claim the maintenance charges only if she is willing to live with the husband and if she is not willing then she can not claim the maintenance charges nor she is entitled for a decree of dissolution of marriage on the aforesaid grounds. The learned counsel referred to the cases reported as Abdul Rehman v. Khalida Bi and 2 others [1980 CLC 1098], Dr. Akhlaq Ahmed v. Mst.
Kishwar Sultana and ethers [PLD 1983 SC 169] and Mst. Barkat Jan v. Habib Khan and 6 others [PLD 1985 SC(AJ&K) 60].
In the case titled Abdul Rehman v. Khalida Bi and 2 others [1980 CLC 1098], one Khalida Bi filed a suit for dissolution of marriage on the ground that her husband is negligent and failed to provide for her maintenance charges for a period of 2 years. He has failed to perform marital obligations for a period of 3 years and she was mal-treated by the appellant. Her husband also filed a suit for restitution of conjugal rights. The trial Court dismissed the suit filed by the wife while decreed the suit for restitution of conjugal rights. On appeal the District Judge issued a decree for dissolution of marriage on the ground of non-payment of maintenance and non-performance of marital obligations and suit filed by the husband was dismissed. On appeal by leave, this Court observed that a Muslim wife is not entitled to a decree for dissolution of marriage on mere proof of the husband's failure to maintain her where by her conduct she had disentitled herself for claiming maintenance. But when the Court reaches to the conclusion that if the wife did not disentitle herself by conduct from demanding maintenance, a decree on the ground cannot be refused. It was observed in para 12 as under:- "12. It therefore, follows that a Muslim wife is not entitled to a decree for dissolution of marriage on mere proof of the husband's failure to maintain her where by her conduct she had disentitled herself for claiming maintenance."
In the case titled Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others [PLD 1983 SC 169] the marriage was dissolved by the Family Court on the ground of 'khula'. The proposition before the Court was raised that events which took place after the institution of suit for dissolution of marriage cannot at all be made the basis for granting or refusing the relief. The Supreme Court of Pakistan observed that conduct is relevant during the reconciliation efforts by the Judge or at subsequent stage.
5. We have heard the learned counsel for the parties and perused the record. The appellant filed a suit for dissolution of marriage on the ground of non-payment of maintenance charges, non- performance of marital obligations, on the ground of cruelty and in alternate on the ground of 'khula'. It was alleged in the plaint that she remained with the husband only for a period of 6 months. During this period the conduct of the defendant and his house-inmates was cruel towards her. The defendant frequently used to throw her out of the house after beating and for the last four years she is living with her brothers and sisters. During this period the defendant never paid maintenance charges or tried for effecting any compromise. Her parents and other inmates tried to effect a compromise but the defendant has not accepted the offer and has contracted second marriage. The defendant refuted the allegations levelled against him. The trial Court consolidated both the suits, one for dissolution of marriage and the other for restitution of conjugal rights and framed issues. To prove her case, the plaintiff-appellant herein, produced Muhammad Iqbal, Muhammad Zameer and Khaliq as her witnesses and also got recorded her statement as her own witness. The Shariat Court recorded finding that the cruelty has not been proved but the claim of the counsel for the appellant is that there is misreading of record. Therefore, we have decided to peruse the whole evidence; Muhammad Iqbal, witness of the plaintiff stated that during the period, the plaintiff remained in the house of the defendant, the defendant used to beat and throw the, plaintiff out of his house. She remained with the defendant only for a period of five or six months. During this period the defendant has not paid her the maintenance charges. The parents of the plaintiff have tried to effect compromise but the defendant has not agreed and has contracted second marriage. The veracity of this witness on the point that the defendant used to beat the plaintiff and threw her out of his house is not specifically challenged. The plaintiff also appeared as her own witness and stated that she remained in the house of her husband for a period of 9 months. During this period the conduct of the husband and his parents was not good. He used to beat her. She is living in the house of her parents for the last 5 years. During this period the defendant has not paid her the maintenance charges. She and her parents tried to effect compromise but the defendant has not agreed and has contracted second marriage. Only a stray suggestion was put to her in respect of beating that defendant has not beaten her. Muhammad Zameer and Khaliq, witnesses of the plaintiff also supported the version of the plaintiff that conduct of the defendant was cruel. He used to beat the plaintiff and she is living with her parents. During this period he has not paid the maintenance charges to the plaintiff and has contracted second marriage. The statements of these witnesses were not challenged on material points. The trial Court committed misreading of the statements of witnesses to the effect of cruel treatment. The trial Court rejected the statements of the witnesses only on the ground that Muhammad Iqbal has stated the period of stay of the plaintiff with the husband as five or six months, Khaliq has stated as eight or nine months while the plaintiff herself stated that she remained in the house of her husband for a period of nine months.
The trial Court concluded that the witnesses of the defendant and defendant himself has stated that plaintiff remained with the defendant for a period of 1-1/2 years. If the evidence of the defendant is admitted then the period of stay of the plaintiff in the house of her parents comes to 4 years and it is admitted that during this period the defendant has not maintained his wife.
However, it is also held by the trial Court that non-payment of maintenance charges is admitted but the wife can claim the maintenance charges if she lives in the house of her husband. By her conduct she was not entitled for maintenance charges, therefore, the decree on the ground of non-payment of maintenance charges cannot be granted. The Shariat Court concurred with the opinion of the Family Court without going through the statements of witnesses and committed misreading of evidence.
6. Section 2 of the. Dissolution of Muslim Marriages Act, 1939, deals with the grounds of dissolution of marriage. We deem it proper to reproduce the said section, which reads as under:-- <b>"2. Grounds for decree for dissolution of marriage.--A</b> woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-- (i)that the whereabouts of the husband have not been known for a period of four years; (ii)that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii) that the husband has been sentenced to imprisonment for a period of seven years or upward;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and continues to be so;
(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years; repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;
(viii) that the husband treats her with cruelty, that is to say, (a)Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b)associates with women of evil repute or leads an infamous life, or (c)attempts to force her to lead an immoral life, or (d)disposes of her property or prevents her exercising her legal rights over it, or (e)obstructs her in the observance of her religious profession or practice, or (f)if he has more wives then one, does not treat her equitably in accordance with the injunctions of the Quran;
(ix) on any other ground which is recognized as valid for the dissolution of marriages under the Muslim law, Provided that-- (a)no decree shall be passed on ground (iii) until the sentence has become final; (b)a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within the period and satisfies the Court that he is prepared to perform his conjugal duties the Court shall set aside the said decree; and.
(c) before passing a decree on ground (v) the Court shall on application by the husband, make an order requiring the husband, to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground."
A bare reading of Section 2 reproduced hereinabove shows that a women married under the Muslim Law is entitled to obtain a decree for dissolution of marriage on all the grounds or any one of the grounds laid down in the Section. Under ground. (ii), if the husband has neglected or has failed to provide for her maintenance for a period of two years then wife is entitled to obtain a decree for dissolution of marriage and under ground (iv), if the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years then the wife is entitled to obtain a decree for dissolution of marriage. 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; specif., 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 [2001 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."
In another case reported as Muhammad Shariful Islam Khan v. Mst. Suraya Begum and others [PLD 1963 Dhaka 947] it was observed in para 13 as under:-- "13. The view of mine also finds support in the Dissolution of Muslim Marriages Act (Act VIII of 1939).
Many grounds for divorce by a suit by the wife have been provided for in this Act. One of them is cruelty. Cruelty can be physical and mental. Mental cruelty is the worst. The false allegation by the husband of a chased woman as to chastity of a chased woman cuts to the heart. It is an evidence of the woman that the plaintiff and her father were arrested by the Police in the criminal proceedings against her and the plaintiff was jeered at by the husband (defendant No,1)."
The trial Court has observed that cruelty is not proved. The plaintiff and her witnesses categorically stated in their Court statements that the husband habitually assaults and beats the plaintiff and made her life miserable by cruel conduct. The trial Court has misread the evidence. The cruelty of the husband/defendant is proved from the record.
7. We have also considered the argument of the counsel for defendant that by her conduct the plaintiff-appellant herein, is not entitled for a decree of dissolution of marriage on the ground of nonpayment of maintenance charges and non-performance of marital obligations. The proposition has been considered by this Court in a case titled Abdul Rehman v. Khalida Bi and 2 others [1980 CLC 1098] relied upon by the counsel for the respondent, whereby it was observed by this Court that a Muslim wife is not entitled to a decree for dissolution of marriage on mere proof of the husband's failure to maintain her where by her conduct she had disentitled herself for claiming maintenance but if the conduct of wife is such that she has not disentitled herself from claiming the maintenance allowances and marital obligations then she is entitled for decree of dissolution on this ground. It was observed as under;-- "13. In the present case as the evidence fails to prove that ever since the appellant left her alone somewhere in the year 1967, he ever, before the institution of his suit in the year 1973, made any effort to bring his wife to live and reside with him at his house. Therefore, it must be held on the facts that respondent, Mst. Khalida Bi, has not disentitled herself to demand maintenance at the house of her mother because the appellant had no legal excuse not to perform the marital obligations and pay maintenance allowances thereat. He of his own accord chose to live with his wife at his in-laws and when he left her he cared not ask her to live and reside with him at his house. No question of any agreement to be a 'khanadamad' arises in this case. The appellant himself chose to live with his in-laws and therefore the point agitated that the agreement to be a 'khanadamad' is a void contract does arise and naturally needs no determination."
8. The conduct of the parties subsequent to filing the proceedings in the Court also merits consideration. The Supreme Court of Pakistan in a case reported as Dr. Akhlaq Ahmed v. Mst.
Kishwar Sultana and others [PLD 1983 SC 169], relied upon by the counsel for the respondent observed that subsequent conduct of the parties is relevant for determining the question of dissolution of marriage. It was observed as under:-- "So far as the first objection of the learned counsel for the petitioner is concerned, it cannot be advanced as a proposition of law that whatever happens subsequent to the institution of proceeding in Family Court cannot at all be made the basis for granting or refusing the relief. As a matter of fact, how the parties conduct themselves during the proceeding, particularly during the reconciliation efforts by the Judge have to be taken note of and suitably given effect to. The question whether the parties if made to live as husband and wife would be living within the limit's of God is a question which has to receive the full and continuous attention of the Judge Family Court once that issue has been raised. He has to attend to every factor which may contribute or detract from it. No such condition as is suggested by the learned counsel for the petitioner can be imposed."
It was further observed by the Court in the referred case as under: "It is true, and as a principle one can have no cavil with it, that an errant wife cannot make her own conduct the basis for dissolution of her marriage even by Khula in a manner to aggravate and licence the very evil which the effort of all civilized human society is to eradicate or control. On facts of the case it cannot be said that the wife was adjudged through and through to be in error, to give the impression that she benefited from her own misdeeds. On the contrary it appears from the proceedings that the Judge Family Court, on an objective appraisal of the evidence on the issues, framed, recorded a finding in favour of the petitioner but with regard to the question of Khula' the same Judge held in favour of the wife. Such a conclusion being in the domain of discretion exercised by an authority having the advantage of observing closely and over a long period of proceedings before it the behavior and the conduct of the parties towards each other and towards their problems is not open to interference unless the discretion was manifestly exercised arbitrarily and capriciously."
9. In the present case it is proved that the plaintiff-appellant was thrown out of his house after cruel treatment by her husband. She also stated that she tried to effect compromise through her parents but the D defendant has not agreed to that and instead contracted second marriage. The conduct of the plaintiff/wife is such that she has not disentitled herself from claiming the maintenance charges.
10. From the perusal of record it appears that the wife was not adjudged to be in error and has not disentitled herself from seeking dissolution of marriage on the ground of maintenance, therefore, she is entitled for the decree of dissolution of marriage on grounds Nos,(ii), (iv) and clause (a) of ground (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939 on the round of non-payment of maintenance charges for a period of 2 years, non-performance of marital obligations for a period of 3 years and on the ground of cruelty.
The result of the above discussion is that this appeal is accepted. The judgment and decree of the Shariat Court as well as the Family Court are modified. The marriage is dissolved on the ground of cruelty non-payment of maintenance and non-performance of marital obligations. The decree for dissolution of marriage is passed with no order as to the costs.