Precisely , the respondent No.1 was married on 13.09.2015 with the petitioner , however , the parties remained issueless. The respondent No.1 instituted a suit for dissolution of marriage and for recovery of dowry articles against the petitioner . It is pertinent to mention here that the parties are Christian by religion. The petitioner filed written statement on 13.04.2016 and controverted the averments of plaint. Out of the divergent pleadings of the parties, the learned trial Court framed issues and recorded evidence of the parties, adduced by them in their respective versions.
The learned trial Court vide impugned judgment and decree dated 19.04.2017 decreed the suit of the respondent No.1 for recovery of dowry articles to the tune of Rs.100,000/- instead of Rs.533,000/-, whereas suit to the extent of dissolution of marriage was dismissed. Both the parties aggrieved of the said judgment and decree preferred separate appeals. The learned appellate Court vide impugned consolidated judgment and decree dated 20.11.2017 upheld the judgment and decree of learned trial Court to the extent of dowry articles amounting to Rs.100,000/- and additionally decreed the suit for dissolution of marriage on 20.11.2017 and dismissed appeal preferred by the petitioner; hence the instant constitutional petition.
2. Learned counsel for the petitioner has argued that the impugned judgments and decrees are against law and facts of the case; that the same are based on surmises and conjectures; that the learned Courts below did not advert to the real facts and circumstances of the case, which was sufficient to rebut the claim of the respondent No.1; that the Courts below have taken erroneous grounds to pass the impugned judgments and decrees without considering the facts brought on the record by the petitioner; that the impugned judgments and decrees are result of misreading and non-reading of evidence on record; that material illegalities and irregularities have been committed by the learned Courts below , which has resulted in miscarriage of justice. Thus, the impugned judgments and decrees being not sustainable in the eye of law may be set aside and suit of the respondent No.1 may be dismissed.
3. On the contrary, learned counsel for the respondent No.1 has supported the impugned judgments and decrees and has prayed for dismissal of the constitutional in hand. Reliance has been placed on M. Jaffar v. Additional District Judge and others (2005 MLD 1069 Lahore), Muhammad Habib v. Mst. Safia Bibi and others (2008 SCMR 1584), Hamid Ali v. Mst. Nabila Riaz and 2 others (2012 YLR 2693 Lahore), Robin David John v. Mst.
Huma Samuel and others (2015 MLD 1683-Lahore), Wahid Bakhsh and others v. Ameer Bakhsh and others (2015 CLC 1387 Lahore), Chairman, BISE, Peshawar and others v. Muhammad Jaar Ullah (2016 YLR 302 - Peshawar), Zahid Janan v. Mst. Kausar Begum and 2 others (2016 YLR Note 43), Basharat Ahmed v. Mst.
Shamim and 2 others (PLD 2016 Lahore 271), Ameen Masih v. Federation of Pakistan and others (PLD 2017 Lahore 610),
4. Heard.
5. Section 10 of the Divorce Act, 1869 (an Act relating to the divorce of persons professing the Christian religion) contemplates:- '10. When husband may petition for dissolution .
Any husband may present a petition to the Court of Civil Judge, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery .
When wife may petition for dissolution.
Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; Or has been guilty of incestuous adultery , Or of bigamy with adultery, Or of marriage with another woman with adultery , Or of rape, sodomy or bestiality .
Or of adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et toro.
Or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Contents of petition . Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.
The above section is clear on the subjec t that unless and until any one of the grounds mentioned above is not proved, divorce cannot be granted, because concept of Khula is alien to the Christian marriages.
Section 18 of the Act ibid provides that any husband or wife may apply to court for annulment of marriage or for declaration of its being void and section 19 of the Act, further provides that such decree may be passed on any of the following grounds:-
1. That the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
2. That the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;
3. That either party was a lunatic or idiot at the time of marriage;
4. That the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
No such ground neither pleaded nor available to the respondent. Even section 22 of the Act, 1869, which is Judicial Separation, provides:- '22. Bar to decree for divorce a mensa et toro, but judicial separation obtainable by husband or wife. No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery , or cruelty , or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of as divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.
Section 45 of the Divorce Act, 1869 provides that:- Code of Civil Procedure to apply . Subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure.
Meaning thereby all the proceedings under the Act, 1869 are governed and regulated by the Code of Civil Procedure, 1908 and instead of a suit instituted under Family Court Act, 1964, for which a timeframe is given under section 12 of the Act that the same be decided within six months and the Family Court can adopt any procedure as Code of Civil Procedure, 1908 and Qanun-e-Shahadat Order , 1984 is not applicabl e in stricto sensu; a suit like civil suit is filed before Civil Court and declaration is sought and if a person pleads any fact in plaint or written statement that is to be proved by leading confidence inspiring and trustworthy evidence.
6. In the present case, the respondent No.1 asserted that the petitioner developed illicit relations with one Nusrat daughter of Parvez, and committing adult ery, due to which his demeanor towards her turned cruel, but in order to substantiate that stance, she could not lead any solid, confidence inspiring and reliable evidence. The learned appellate Court has only considered that part of statement, which has been incorporated by the respondent No.1 in her affidavit submitted as P.W.1, wherein she asserted that when she intended to be with the petitioner in order to serve him, he reprimanded and openly confessed commission of adultery by saying that he has no shortage of women in Taxila. This part of statement loses its worth when a suggestion was put in this regard by the learned counsel for the respondent No.1 to the petitioner and the same was negated and after categorical denial and negation, the onus was upon the respondent No.1 to prove what was pleaded by her through independent evidence, but as stated above, nothing pivotal in support of her stance could have been brought on record by her; thus, she was not entitled to a decree for dissolution of marriage and the learned appellate Court has on wrong perception and using pick and choose method has passed decree for dissolution marriage because evidence as a whole has not been considered and appreciated by it. In a case reported as Mst. Parveen Amanual v. Additional District Judge-III, Rahim Yar Khan and 2 others (PLD 2009 Lahore 213 ), this Court held:- `There is no provision in the nature of `Khula' in the Divorce Act, 1869 and as such the mere statement of the petitioner that she was not willing to live as a wife with respondent No.3, is not sufficient for the purpose of dissolution of Christian marriage. In this regard reference is made to section 10 of the Divorce Act, 1869, which relates to the grounds when wife may ask for the dissolution of marriage and further reference is also made to section 22 of the same Act, which lays down the grounds where judicial separation is obtainable by wife.'
In the said judgment it was further held:- `6. The bond of marriage between Christian husband and wife is of a permanent nature and as such the wife has to prove her case on the concrete facts after leading reliable and cogent evidence to the facts on which the claim of dissolution of marriage is based. Only then the Court can grant a decree for a judicial separation within the meaning of section 22 of the Divorce Act, 1869 or to dissolve the marriage under section 10 of the same Act.'
This Court, in Ameen Masih v. Federation of Pakistan (PLD 2017 Lahore 610) has restored the omitted provision of Section 7 of the Divorce Act, 1869 declaring its omission as repugnant to fundamental rights and it was held:- `Restored section 7 is to be read harmoniously with Section 10 of the Act. This means that ground of divorce on the basis of adultery are available and anyone who wishes to invoke them is free to do so, but for those who wish to seek divorce on the ground of irretrievable breakdown of marriage, they can rely on Section 7 of the Act and avail of the additional grounds of divorce available under the Matrimonial Causes Act, 1973 (UK), which will be available to the Christians in Pakistan and will enforceable in Pakistan.
It was also held by this Court in the very case:- "The UK law referred to in (repealed) section 7 is the UK Matrimonial Causes Act, 1973. Section 1 of Part 1 of Chapter 18 of UK law provides as follows:
1. (1) Subject to section 3 below , a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably .
(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as "two years separation") and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred as "five years separation").
(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.
(4) If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it satisfied on all the evidence that the marriage has not broken down irretrievably , it shall, subject to sections 3(3) and 5 below , grant a decree of divorce.
(5) Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection."
If for the sake of above repealed section 7 of the Act is considered and the grounds as mentioned above are taken into account, even then, as stated above, the respondent No.1 has failed to discharge the burden shifted on her with regards to alleged ground of adultery. As such, the learned appellate Court, as elaborated above, has misread and non-read evidence of the parties and has wrongly passed the impugned judgment and decree dated 20.11.2017 with regards to dissolution of marriage, which cannot be allowed hold field further, to this extent.
7. So far as the decree for dowry articles is concerned, the findings recorded by the learned Courts below , concurrently , are based on proper appreciation of evidence on record; thus, the same are upheld.
8. For the foregoing reasons and discussions, the constitutional petition in hand is partially allowed, impugned judgment and decree dated 20.11.2017 passed by the learned Add. District Judg e, Sargodha is set aside to the extent of grant of decree for dissolution of marriage, whereas to the extent of grant of dowry articles or alternate price the impugned judgments and decrees are upheld. No order as to the costs.