MUHAMMAD NASIR MAHFOOZ, J.--- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mohammad Raziq, the petitioner has impugned judgment and decree dated 23.02.2016 passed by the learned Additional District Judge/Izafi Zilla Qazi VI, Swat, whereby appeal preferred by the defendant/petitioner against judgment and decree dated 25.11.2015 rendered by the learned Civil Judge/Judge Family Court Khwaza Khela was dismissed.
2. Background of the dispute as reflected from the record are that Mst. Farhana Bibi herein respondent No.1 filed a family suit against Mohammad Raziq, the Petitioner/defendant for dissolution of her marriage on account of cruelty and mental depression, recovery of dower three and quarter (3-1/4) tolas golden ornaments or its market price, recovery of dowry articles amounting to Rs.80,000/- and maintenance allowance @ Rs.6,000/- per month from 30th September 2014 till decision of the case and completion of the Iddat period.
3. It is averred in the plaint that the Nikah between the parties took place in the year 2003 in lieu of five (5) tolas golden ornaments while the Rukhasti ritual has been performed in the year 2004. She has been given golden ornaments in shape of Tikah 1-3/4 tola gold, while rest of the dower weighing 3-1/4 tolas are still outstanding against the defendant/petitioner. Initially the relationship between the spouses remained cordial and out of their wedlock they were blessed with three children. The plaintiff/respondent No. 1 after one year of her marriage was shifted to Karachi by the defendant/husband and she was subjected to severe torture and mental depression by the defendant/petitioner and as per her version she has been given oral Talaq/divorce several times, yet despite that she has been put to forceful cohabitation by her husband/petitioner, which is against norms of Sharia and law of the land. She had developed such hatred against her husband that instead of living with her husband/petitioner as wife, she would prefer death, therefore, in such unbearable circumstances; she had knocked the doors of the learned family Court for redressal of her grievances by way of present family suit.
4. When put on notice by the learned Judge Family Court Khwaza Khela, Mohammad Raziq, the petitioner/defendant contested the suit by submitting his written statement, wherein he raised several objections both legal and factual. According to him, since the respondent No.1 Mst. Farhana Bibi has left his house at her own free will, therefore, she is not entitled to any maintenance allowance. With respect to the dower, it was asserted by him that it was fixed four (4) tolas gold ornaments, out of which 2-1/4 tolas of golden ornaments in shape of Rings and Tikaha has been paid to her at the time of Rukhsati through his mother Mst. Bachey Takht Bibi, who at present could not speak being patient of paralysis, besides the defendant/petitioner has also made a prayer for restitution of the conjugal rights. From divergent pleadings of the parties, the learned trial Court framed the following issues:- ISSUES:-
1. Whether plaintiff has got cause of action?
2. Whether dower of plaintiff was five tola gold in which 3-1/4 gold is due against the defendant?
3. Whether dower of plaintiff was four tola gold and entire dower was paid to the plaintiff at the time of marriage?
4. Whether defendant repeatedly pronounced divorce while parties were residing in Karachi?
5. Whether plaintiff is entitled to decree for dissolution of marriage, if yes, on what ground?
6. Whether plaintiff is entitled to the remaining dower 3-1/4 tola gold?
7. Whether plaintiff is entitled to decree for maintenance allowance? If yes, at what rate and for which period?
8. Whether plaintiff is entitled to decree for recovery of Rs. 80,000/- price of dowry?
9. Whether defendant is entitled to .decree for restitution of conjugal rights?
10. Relief.
Thereafter parties produced their respective evidence. On close of the evidence of the parties, the learned trial Court vide its judgment/decree dated 25.11.2015 partially allowed the family suit of Mst.
Farhana Bibi, she Was held entitled to the extent of dissolution of marriage, dower three (3) tolas gold or its market price and maintenance allowance of Rs.3,000/- per month for iddat period (3- months), while rest of her suit was dismissed.
5. Aggrieved from the above judgment/decree of the learned trial Court, the defendant/petitioner preferred family appeal bearing No.15/FCA of the year 2014. The learned appellate forum vide its judgment/decree dated 23.02.2016 dismissed the appeal by maintaining the judgment and decree of the learned lower Court. Still not satisfied, Mohammd Raziq, the petitioner herein, has come to this Court by filing petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 inter alia on the grounds enumerated therein.
6. Arguments of learned counsel for the parties heard and available record perused with their valuable able assistance.
7. Perusal of the record reveals that defendant/petitioner is aggrieved from the impugned judgments and decrees of the learned Courts below to the extent that plaintiff/respondent No. 1 failed to prove the factum of cruelty through cogent and reliable evidence at the hands of defendant/petitioner yet the dissolution of marriage of account of Khula is against the record.
Moreover, it was further asserted by him that the grant of decree of dower i.e. 3-1/4 tolas gold is not sustainable in the eye of law because she could not produce sufficient evidence in this respect and lastly as per his version the plaintiff/respondent No.1 left his house with her sweet will, therefore she being Nasheeza is not entitled to the decree of maintenance allowance as granted by the learned Trial Court and duly affirmed by the learned appellate Court.
8. A bare look of the findings of the learned fora below would reveal that in respect of dower amount, the plaintiff/respondent No.1 appeared himself as PW-1 and reiterated the stance taken in the plaint. Though she was cross-examined on behalf of the opposite side i.e. defendant/petitioner at length but the probative worth of her statement in respect of the maltreatment at the hands of her husband and factum of unpaid dower could not be shattered. The plaintiff/respondent No. 1 was duly supported by PW-2 Muhammad Taj and PW-4 Zahid, who have duly supported the version of plaintiff in their statements. While on the other hand, the defendant/petitioner recorded his sole statement as DW.1, however, when cross-examined on behalf of the plaintiff/ respondent No.1 he has showed total ignorance to the factum of period between his Nikah and marriage with the respondent No.1, as he even could not remember the name of Nikah-Khwan and other family members of the Majlis and further made an admission to the effect that he has no receipt of the dower amount four (4) tolas gold ornaments, but admitted that four (4) tolas gold was fixed as dower. There is no denial of the fact that the plaintiff/respondent No.1 though alleged cruelty and maltreatment at the hands of her husband, but she badly failed to prove the factum of cruelty on behalf of her husband. However, the plaintiff/respondent No.1 had developed such enormous hatred against her husband that it is in the evidence that she would prefer death instead of living as wife with the defendant/petitioner, therefore, the findings of learned trial Court duly affirmed by the learned appellate Court in respect of dissolution of marriage on account of Khula and grant of decree of dower are in accordance with law in the light of facts and circumstances of the present case. In this respect reliance can be placed on the case law titled Gul Hassan v. Mst. Nasreen Akhtar and 2 others (2014 YLR 1743 Peshawar), wherein it has been held as under:- "Once it is found that aversion was result of maltreatment of husband; non-payment of dower; or any other genuine ground provided in 'law, wife cannot be deprived of her dower and maintenance".
Similar view has further been reiterated by his Lordship of the Hon'ble Lahore High Court in case titled Munwar Iqbal Satti v. Mst. Uzma Satti and 2 others" (2003 YLR 599 Lahore) wherein it was enunciated that.
"Dower (Haq Mehr) is sine qua non of a valid marriage. Union between spouses could not be legal without Haq Mehr, but would rather lead to self-destroying and hazardous legal consequences."
9. As far as grant of decree of maintenance allowance for 3 months till Iddat period in favour of plaintiff/respondent No.1 is concerned, the same is also reasonable in nature keeping in view the financial resources of the defendant/petitioner, as he was a known laborer and even settled in Karachi in order to earn livelihood for his children and other family members which includes his mother being patient of paralysis.
10.Similarly, the plaintiff/respondent No.1 could not produce enough evidence in support of her claim with regard to dowry articles amounting to Rs.80,000/-, as neither she appended any list with her plaint nor during Court statement she produce any list of the alleged dowry articles, which could substantiate her claim with regard to dowry articles, thus, the findings of the learned fora below to this extent are in accordance with law, which call for no interference by this Court.
Likewise, the defendant/petitioner though sought decree for restitution of conjugal rights, but it is an admitted fact on record that plaintiff/ respondent No.1 was subjected to mental depression, maltreatment and even she has been given oral Talaq several times by the defendant/ petitioner, therefore, by all accounts, he is not entitled to the grant of decree for restitution of conjugal rights, which position stands rightly appreciated by the learned fora below.
11. In view of what has been discussed above, the instant writ petition being bereft of merits stands dismissed.