QAISER RASHID KHAN, J.---- Through the petition in hand, the petitioner has prayed as under; "On acceptance of this writ petition, the impugned order , judgment and decree dated 10.03.2016 of respondent No.4 may very kindly be declared as illegal, wrong, unlawful, without lawful authority , void ab initio, of no legal effect and as such ineffective upon the rights of the petitioner and the order, judgment and decree dated 04.05.2015 of respondent No.5 may kindly be restored with cost throughout."
2. Brief facts leading to the present petitio n are that the respondent-lady instituted a suit for dissolution of marriage, recovery of dower and dowry articles as well as maintenance for herself and her two minor children against the petitioner-husband averring therein that her marriage was solemnized with the petitioner on 5.10.201 1 in lieu of dower of 5 tolas gold ornaments; that initially she filed a suit for the recovery of maintenance etc. which was compromised on 26.10.201 1 on account of which she received 7 tolas and 3 masha gold ornaments from the petitioner-husband; that thereafter the respondent-lady again settled with the petitioner-husband and 7 tolas gold ornament was returned to him on the basis of Iqrarnama dated 29.1.2013; that for a short period of time they resided happily but the attitude of the petitioner-husband changed and on petty matters the respondent-lady was beaten and insulted and finally on 4.09.2013 though she was pregnant but beaten up by the petitioner , expelled from his house and then on 26.10.2013 she gave birth to her second child at the house of her parents and the entire expenses were borne by them.
3. On being summoned, the petitioner-husband appeared before the learned trial court and contested the suit by filing written statement. In view of the divergent pleadings of the parties, the learned trial court framed as many as nine issues including the relief. After recording the respective evidence of the parties and hearing their learned counsel, the learned trial court through judgment and decree dated 04.05.2015 dissolved the marriage tie between the couple on the basis of Khula and also a decree for maintenance for a sum of Rs.1800/- per month for each minor child with increase of Rs.1000/- per anum and the dowry articles or its market value was granted. However , the rest of the reliefs were turned down. Feeling aggrieved, the respondent-lady preferred appeal No. 8/FCA of 2015 and the learned ADJ-II, Takht Bhai vide impugned judgment and decree dated 10.03.2016 decided the appeal in the following manner;
1. Finding of the learned trial court on Issues Nos.1, 3 and 8 and decree for dissolution of marriage on the basis of Khula are substituted with decree for dissolution of marriage on the basis of crelty in favour of appellant No.1 against respondent.
2. Findings of the learned trial court on Issues Nos. 1, 5 and 8 and consequent judgment and decree are reversed and suit for appellant No.1 for recovery of five dower gold ornaments and two tola dowry gold ornaments (total seven tola gold ornaments) is decree in her favour against the respondent.
3. Finding and consequent judgment and decree of the learned trial court on Issues Nos. 1 to 4 and 8 are reversed and suit of the appellant No.1 for mainten ance is decreed to the extent of Rs.1,000 /- per month form 04.09.2013 till expiry of her iddat period.
4. Mst. Ayesha, minor appellant No.2 is held entitled to receipt of the maintenance form 4.09.2013 till her marriage while Muhammad Arifeen, minor appellant No.3 is held entitled for to receipt of the maintenance from 26.10.2013 ( date of his birth) till his majority . Findings and consequent judgment and decree of the learned trial court on Issues Nos. I to 4 and 8 are modified accordingly .
4. Feeling aggrieved from the judgment and decree of the learned appellate court dated 10.03.2016, the petitioner- husband has preferred the instant appeal.
5. The learned counsel for the petitioner contends that nowhere from the record it is evident that cruelty was meted out to the respondent-lady and that she left the house of the petitioner of her own sweet will and accord and then opted to file a suit for dissolution. Further contends that earlier she had filed a suit which was compromised and ultimately withdrawn and that after a brief stay with the petitioner at his house, the respondent-lady again filed a suit for dissolution of marriage, recovery of dower and dowry articles as well mainte nance for herself and her minor children. He thus states that the learned trial court has rightly appreciated the evidence of the parties in true perspective while granting a decree for the dissolution of marriage to the respondent-lady on the basis of Khula and that the learned appellate court has seriously erred while reversing the said findings of the learned trial court by dissolving her marriage on the basis of cruelty .
6. The learned counsel for the respondents supports the impugned judgments and decree of the learned appellate court on almost the same grounds as detailed therein.
7. Arguments heard and the available record perused.
8. As the record unfolds, the marriage between the parties was solenmized on 07.11.2009 and thereafter , initially , the respondent-lady filed a suit for the recovery of maintenance allowance way back on 05.10.201 1 but the same was withdrawn on 26.10.201 1. It is Iqrarnama, Ex:PW -1/1 dated 29.01.2013 which is the bone of contention between the parties, pressed into service by the respondent-lady to have been duly executed whereby gold ornaments of 7 tolas were returned to the petitioner while the same is disputed by the petitioner . Now it is the evidence of the parties which is to be scrutinized in this respect.
To prove the Iqrar Nama Ex:PA/1, the respondent-lady produced Salar Muhamm ad Stamp Vendor/Deed Writer (PW-1), Subhan Ullah (PW-2), Naveed Akhtar (PW-3) and Ikhtisham ul Haq (PW-5). Of them, the former is the scribe of the Iqrar Nama while the latter are its marginal witnesses and have supported the contents of said documents in its entirety . They were subjected to cross examination but they remained steadfast in their stance regarding scribing and attestation of the Iqramama, Ex:PW -1/1. Accordingly , the scribing of the Iqrarnama and of course its contents stand proved.
9. On the other hand, the petitioner-husband recorded his detailed statement as DW-1 but failed to rebut that he had not treated the respondent-lady with cruelty and that she had left his house of her own volition. He was also unable to rebut the statements of PWs and their assertions in respect of the conten ts of the Iqrar Nama Ex:PW -1/1.
He has not produced a single witness to support his stance or for that matter to say a word in rebuttal to the story put forward by the respondent-lady and her witnesses.
10. So far as the dissolution of marriage on the basis of cruelty is concerned, in the averment of the plaint, the respondent-lady has specifically mentione d that the petitioner-defendant is a cruel person and on 4.09.2013 though she was in the family way but was beaten up by the petitioner , expelled from his house and then on 26.10.2013 she gave birth to her second child at the house of her parents. In support of her such version she appeared as PW-4 and categorically stated that she was beaten up by the respondent-husband and though she was pregnant but even then she was ousted from his hous e and thereafter she went to her parents house. She was subjected to a lengthy and gruelling cross-examination but her testimony could not be shatter ed. The word cruelty does not necessarily per se connote the involvement of physical torture but of course there are other circumstances which point towards the element of cruelty . In the case in hand, where the respondent-l ady was in the family way, then under no circumstances the situation would have warranted her expulsion from his house by the petitioner . Rather in such like situation, every efforts is made by the husband to provide comfort to his wife which is not evident from the present file.
11. For the foregoing reasons, I hold that the learned appellate court has neither committed any illegality nor jurisdictional error in reversing the findings of the learned Family Court whereby the decree for dissolution of marriage was granted to the respondent-lady on the basis of cruelty so as to in turn call for the interference of this court.
12. Accordingly , this petition being devoid of merits stands dismissed.