IJAZ ANWAR, J.---Through this common judgment, I propose to decide two Writ Petitions bearing Nos. 643- B/2015 (Basmina Bibi v. Imran etc.) and No.715-B/2015 (Imran v. Mst. Basmina Bibi etc.), as both these petitions have arisen out of one and the same family issue between the same parties.
2. Concise facts of the case are that the marriage of the petitioner/ plaintiff with respondent/defendant was solemnized in lieu of seven tolas gold ornament as dower some 5-1/2 years prior to the institution of the suit, but till date the said dower has not been paid to the petitioner/ plaintiff by the respondent/defendant. That out of the wedlock the petitioner/plaintiff gave birth to a boy child Rehanullah. That the relations between the spouses remained strained which resulted in turning her out of the house, thus, a year before filing of the suit the petitioner/ plaintiff is living with her parents and since her ousting she has not been given maintenance, while parents of the respondent/defendant had also snatched the minor from petitioner/plaintiff. Those articles of dowry are. in possession of the respondent/defendant. That respondent/defendant was time and again asked for payment of dower, maintenance allowance, dowry articles and custody of minor but in-vain, thus, the suit was lodged.
3. The respondent/defendant contested the suit by way of written statement, raising therein certain factual and legal objections. On divergent pleading of the parties, the learned lower court framed ten issues including relief and the parties adduced their pro and contra evidence in support of their respective contentions. On conclusion of evidence and hearing arguments of the parties, the learned Civil Judge-NMI/Judge Family Court, Lakki Marwat vide judgment and decree dated 14.11.2014, granted partial decree for (1) dissolution of her marriage on the ground of cruelty and Khulla (2) recovery of maintenance allowance Rs.3000/- per month for a previous period of one year before filing of suit till date and onward till expiry of Iddat period (3) recovery of seven tolas gold ornaments as her dower and (4) recovery of admitted dowry articles, i.e., one bed and one quilt while rest of the prayers of both the parties were dismissed.
4. The judgment and decree of learned trial court was assailed by the petitioner/plaintiff through Family Court appeal bearing No-09/FC of 2014 while by the respondent/defendant through Family Court appeal bearing No-10/FC of 2014 and the learned Additional District Judge-IV Lakki Marwat vide consolidated judgment and decree dated 01.10.2015 made certain modifications, granted dissolution of marriage on the basis of Khulla but the petitioner/plaintiff Basmina Bibi was ordered to surrender 3-1/2 Tolas gold ornaments and rest of 3-1/2 Tolas gold ornaments is to be paid by the respondent/defendant as the same was not provided' by him at the time of Nikah/Rukhsati. As far as the other parts of the decree is concerned, the petitioner/plaintiff has not proved that she was kicked out by the defendant of his house and she was not ready to reside with him and as she left the house of defendant when he was away, therefore, she was held not entitled for the past maintenance allowance, however, she was held entitled only for the maintenance allowance @ Rs.4000/- per month for the period of her Iddat. Similarly, the judgment and decree for the dowry articles was maintained to the extent of one bed and one quilt, therefore, aggrieved thereby, the parties have preferred their respective writ petitions against the same before this court.
5. Arguments heard and record perused.
6. Perusal of the record reveals that the learned Additional District Judge-IV Lakki has on appeal modified the judgment and decree of the learned trial court only to the extent of maintenance and for surrender of 3-1/2 Tolas Golden ornaments considering the dissolution of marriage as on the basis of Khulla.
7. While going through the record of the case with the assistance of the learned counsel for the parties, the petitioner/wife has claimed dissolution of marriage on the basis of cruelty, however, when she appeared in the witness box as PW-2, she has stated that she is not ready to live with the respondent/husband in any circumstances rather would prefer death instead. It is also in the evidence that the petitioner remained in the house of the respondent for a considerable long time even when respondent has already left for abroad. It is also in the evidence of father of the petitioner that he took Rs.25000/-from the respondent during period when the petitioner was living with him. All these facts demonstrate that the petitioner has left the house of her husband with her free will.
8. It is though well-settled that cruelty cannot be proved through direct evidence, but in the instant case mere assertion of the petitioner that she heard through telephone disparaging remarks about her cannot be considered as proven fact about cruelty. The learned Additional District Judge-IV Lakki has thus rightly considered the dissolution of marriage on the basis of Khulla. Similarly, seven Tolas golden ornaments was proved as dower of the petitioner and not denied in evidence, therefore, where the wife herself is seeking Khulla than she is bound to surrender dower. In the instant case the learned Additional District Judge-IV Lakki has concluded that the petitioner has to surrender half dower and the rest 3-1/2 tolas golden ornaments is to be paid by the respondent no exception could be taken of such findings and are maintained. The knot of marriage remained intact though wife (petitioner) was residing with her parents albiet it is the legal, moral as well as social obligations of the husband under the Islamic Law to provide adequate maintenance to the wife for her respectable living. In the instant case it has been proved on record that the respondent/husband has not provided monthly maintenance to his wife. The findings of the learned Additional District Judge-IV Lakki that since the petitioner was not ready to reside with her husband and has left the house of respondent of her own, therefore, was not entitled for maintenance and was given only Rs.4000/- per month for the period of her Iddat, is not sustainable. It is observed and hold that till such time the marital tie is intact the husband cannot be allowed to neglect his wife in paying maintenance to her. As discussed above, it is his legal, moral and social duty under the Islamic Law to maintain his wife to live with respectable life at least till the subsistence of the marriage. The learned Judge Family Court has thus rightly held her entitled for maintenance allowance @ Rs.3000/- per month for a previous period of one year and till the expiry of her Iddat period after declaration of dissolution of marriage by the learned Judge Family Court, such findings of the court are restored.
9. Similarly, the petitioner when allegedly was shunt out of the house of husband has not asked for the custody of her minor son for a considerable long time. The learned Judge Family Court has while dealing with the custody of minor in issues Nos.7 and 8 dealt with judicially and recorded observations in the following manner:--
1. Minor was in very good health and quite happy and calm in the lap of paternal grandmother.
Showing to be quite acquainted with his grandmother.
2. Paternal grandmother was also in good health and energetic woman with too much affection in her eyes towards the minor baby.
3. Minor is showing no inclination towards his mother/plaintiff.
4. Minor appearing to have forgotten his mother as he was residing with his paternal grandmother and father since long.
10. While sitting in constitutional jurisdiction, I am not inclined to interfere with the observations of learned Judge Family Court as it involve the future of minor and disturbing such findings would disturb un-warranted emotional agony to the minor boy and would certainly affect him.
11. Similarly, except provision of list of dowry articles, it has not been proved through any evidence.
Since there has been specifically denial by the respondent (husband), therefore, the initial burden of its proof was on the wife, which she miserably failed. Both the lower forums have concurrently given finding against the petitioner, hence, this issue needs no interference.
12. For the afore-said reasons, Writ Petition No-643-B of 2015 is accepted to the extent of modifying the judgment and decree of the learned Additional District Judge-IV Lakki Marwat as explained above. The Writ Petition No-715-B of 2015 filed by the respondent/husband stands dismissed.