KH. MUHAMMAD NASIM, J. The titled appeal by leave of the Court has been directed against the judgment dated 27.02.2020, passed by the Shariat Appellate Bench of the High Court in Family Appeals Nos. 342, 343 and 344 of 2018.
2. The facts forming the background of the captioned appeal are that the plaintiff/appellant, herein, filed four suits; 1st for dissolution of marriage; 2nd for recovery of dowry articles, 3rd for recovery of maintenance allowance; and the 4th for recovery of dower to the extent of house consisting upon two rooms, a kitchen and a bathroom along with gold ornaments amounting to Rs.80,000/-, against the defendant/ respondent, herein, in the Court of Additional District and Sessions Judge/Judge Family Court Muzaffarabad on 18.10.2017. It was stated that the marriage between the plaintiff and the defendant, Muhammad Ashfaq, was solemnized on 24.12.2016 according to Sharia at Muzaffarabad in lieu of dower amounting to Rs.10,00,000/- in shape of 10 tola gold ornaments and a house comprising two rooms, kitchen and a bath room. It was further stated that after just a month of marriage, the behavior of the defendant/respondent became cruel towards the plaintiff and he started torturing the plaintiff/appellant physically and mentally. It was further stated that after marriage the plaintiff came to know that the defendant/respondent is psychological patient and is a regular visitor of Dr. Hamid Rasheed. It was further stated by the plaintiff/appellant that it also came into her knowledge after marriage that the defendant/respondent had contracted a Nikah in 2014 but rukhsati could not take place due to his ailment and many times he broke engagements. It was claimed that the defendant/respondent often did not remain in his senses and used to abuse the plaintiff/appellant as well as torture her physically and mentally. It was further stated that once as a result of physical assault of the defendant, the plaintiff lost her ear. It was further stated that many times Jirga was convened, wherein, the defendant undertook that he will change his behavior but every time he broke his promise and finally deserted the plaintiff after beating her. It was prayed that the plaintiff cannot live with the defendant within the limits ordained by Allah Almighty, therefore, the marriage may be dissolved. It was further stated that the defendant never paid any maintenance allowance to the plaintiff since marriage and sheds entitled to the same from January, 2017, at the rate of Rs.10,000/- per month. It was prayed that the, plaintiff is also entitled to the recovery of remaining dower comprising a house consisting upon two rooms, kitchen and a bathroom as well as gold ornaments amounting 80,000/-. It was claimed that the dowry articles amounting 7,00,000/- given to the plaintiff by her parents at the time of rukhsati are in possession of the defendant which are liable to be recovered and returned. Beside contesting the suits through written statement, the defendant, Muhammad Ashfaq, filed a counter suit for restitution of conjugal rights, wherein, it was stated by him that the allegations of torture and misbehavior are ill-founded. It was further stated that the defendant/respondent, herein, wants to populate the plaintiff/appellant and for that purpose many times he convened Jirga of respectable of the family but the plaintiff did not want to populate. It was further stated in his suit that the plaintiff/appellant is quarrelsome by nature and left the home of the defendant out of her own free will. The learned trial Court consolidated all the suits and after necessary proceedings vide judgment and decree dated 30.11.2018, decreed the suit for dissolution of marriage on the ground of khula. The suit for recovery of dowry articles was also decreed, whereas, the suits for recovery of maintenance allowance and dower were dismissed for want of proof. Feeling aggrieved, the plaintiff/appellant filed three appeals before Shariat Appellate Bench of the High Court on 29.12.2018, whereas, the defendant/respondent did not file any appeal. The learned Shariat Appellate Bench of the High Court after hearing the parties through the impugned consolidated judgment and decree dated 27.02.2020, has dismissed the appeals.
3. Banister Hamayun Nawaz Khan, Advocate, the learned counsel for the appellant argued the case at some length and stated that the suits for recovery of dower and maintenance allowance filed by the plaintiff/appellant, herein, were proved through cogent and reliable evidence but the Courts below have dismissed the same arbitrarily without appreciating the evidence in its true perspective which resulted into miscarriage of justice. The learned Advocate has referred to the statement of plaintiff/appellant, herein, as well as the maid who was present at the time of physical assault of the defendant on the plaintiff and submitted that the same were sufficient for granting the decree of dissolution of marriage on the ground of cruelty but has been misread by the learned Family Judge as well as the learned Shariat Appellate Bench of the High Court. The learned Advocate further argued that the psychological ailment of the defendant has been proved which was also sufficient for granting the decree of dissolution of marriage on the ground of cruelty as the defendant was duty bound to disclose the same before the marriage. He added that the defendant has suppressed his previous conduct and destroyed the life of the plaintiff/appellant, herein, but this aspect of the matter has not been considered by the Courts below. The learned Advocate submitted that the suit for recovery of dower and other suits were also illegally dismissed by the learned Family Court. In support of his submissions, the learned counsel referred to and relied upon the cases reported as Syed Imtiaz Hussain Shah and another v. Mst. Razia Begum and 3 others [2011 SCR 233]. Maqsood Ahmed v. Faiza Riaz [2013 SCR 1119] and Mst. Amreen v.
Muhammad Kabir [2015 YLR 170] and prayed for acceptance of the appeal.
In the first case referred to hereinabove, it has been observed by this Court that infliction of injury is not required for proof of cruelty. Even false allegation against a wife is treated to be a cruelty.
In Maqsood Ahmed's case referred to by the learned counsel for the appellant, it has been observed by this Court that an evasive denial cannot be termed as denial.
In the third case referred to hereinabove, it has been observed by this Court that a husband is bound to maintain his wife.
4. On the other hand, Mr. Sajjad Ahmed Khan, Advocate, the learned counsel for the respondents has defended the impugned judgment and stated that the same is perfect and legal. The learned counsel further alleged that it is correct that a wife is entitled for maintenance allowance but if a wife leaves the house of the husband without any reason then she is not entitled for maintenance charges. The learned counsel further argued that in para 4 of the written statement it was specifically alleged by the defendant/respondent that the appellant was not ousted from the house of her husband rather she went out voluntarily, therefore, she is not entitled to maintenance charges. The learned counsel further added that the allegation levelled against the defendant respondent No.1 that he is psychologically ill is baseless and the medical transcription referred to and relied upon by the learned counsel for the appellant has not been even exhibited before the trial Court. The learned counsel further stated that the findings of facts recorded by the Courts below have attained the status of concurrent findings. In support of his submissions, the learned counsel referred to and relied upon the cases reported as Nusrat Bibi v. Pervaiz Iqbal and another [2016 SCR 68] and Azhar Bashir v. Sadia Shafique [2016 YLR 371] and prayed for dismissal of the appeal.
In the first case referred to by the learned counsel for the respondents, it was observed by this Court that a wife who leaves the house of a husband voluntarily is not entitled to the maintenance charges.
In Azhar Bashir's case referred to hereinabove it was held that husband is duty bound to pay maintenance charges to the wife till she is faithful to the husband and lives with him. If she voluntarily leaves the house of her husband, she is not entitled to maintenance charges.
5. We have heard the learned counsel for the parties and have perused the record with utmost care. A perusal of the record reveals that plaintiff/appellant, herein, filed four suits; 1st for dissolution of marriage; 2nd for recovery of dowry articles, 3rd for recovery of maintenance allowance; and the 4th for recovery of dower to the extent of house consisting upon two rooms, a kitchen and a bathroom along with gold ornaments amounting 80,000/-, against the defendant/respondent, herein, in the Court of Additional District and Sessions Judge/Judge Family Court Muzaffarabad on 18.10.2017. The defendant/respondent, herein, also filed a counter suit for restitution of conjugal rights. The learned trial Court consolidated all the suits and after necessary proceedings vide judgment and decree dated 30.11.2018, decreed the suit for dissolution of marriage on the ground of khula. The suit for recovery of dowry articles was also decreed, whereas, the suits for recovery of maintenance allowance and dower were dismissed for want of proof.
Feeling aggrieved, the plaintiff filed three appeals before the Shariat Appellate Bench of the High Court on 29.12.2018, whereas, the defendant did not file any appeal. The learned Shariat Appellate Bench of the High Court after hearing the parties dismissed the appeals vide the impugned consolidated judgment and decrees dated 27.02.2020, which is the subject matter of the captioned appeal.
6. The main thrust of the arguments of the learned counsel for the appellant is that the appellant claimed dissolution of marriage on the ground of cruelty and cruelty had been proved by the appellant. The appellant had not claimed the dissolution of marriage on the basis of khula but despite this the learned Family judge decreed the suit for dissolution of marriage on the ground of khula. The learned Shariat Appellate Bench of the High Court has illegally maintained the judgment and decrees of the learned Family Judge. The courts below have committed misreading and non- reading of the evidence. We have carefully considered the arguments of the learned counsel for the appellant. Although, it is not the duty of this Court to scrutinize the evidence but for our own satisfaction that as to whether any misreading or non-reading of the evidence has been committed by the Courts below or not, we have gone through the evidence produced by the parties and have come to the conclusion that there is no misreading or non-reading of the evidence. From the evidence produced by the parties, the learned Family Court as well as the learned Shariat Appellate Bench of the High Court has reached the conclusion that the plaintiff/appellant, herein, failed to prove the factum of cruelty. The plaintiff/appellant, herein, has categorically stated in para 4 of her plaint that she has developed hatred towards her husband and she will not live with him at any cost rather she will prefer death instead of living with the defendant/respondent, herein. After this statement, it cannot be said that dissolution of marriage was not claimed on the basis of khula. This Court has held in a number of judgments that khula is a pure question of law that can be raised at any stage of the proceedings and decision can be taken by the Court on the basis of evidence available on the record, therefore, the learned Family Court has correctly passed the decree of dissolution of marriage on the basis of khula and the learned Shariat Appellate Bench of the High Court has rightly concurred with the judgment of the learned Family Judge. Reliance may be placed on the case reported as Mehnaz Akhtar and another v.
Raja Abdul Waheed [2020 SCR 313], wherein, this Court in para 5 has observed as under:- "5. We have heard the learned Advocates representing the parties and have gone through the record of the case. The first submission of Ms. Ghazala Haider Lodhi, the learned Advocate for the appellants that dissolution of marriage cannot be ordered on the basis of Khula because it was not claimed by the appellant, herein, is concerned, that has no substance in it. The determination of fact as to whether spouses can live within the limits ordained by Allah Almightily, depends upon the satisfaction of Qazi/Judge and if a Judge comes to the conclusion that living together of the spouses is not possible within the limits of Sharia then marriage can be dissolved on the basis of Khula notwithstanding the fact that the wife has claimed Khula or not. In the present case, though the suit was filed on the ground of cruelty but at the same time the plaintiff in para No.6 of her plaint categorically stated that she has developed hatred towards her husband and will not live with him at any cost rather will prefer the death instead of living with the defendant-husband. After this statement, it cannot be said that dissolution of marriage was not claimed on the basis of Khula. As has already been stated that it is the satisfaction of the Qazi Judge as to whether parties can live as husband and wife within the limit ordained by Allah Almighty or not. Once the conscious of a judge is satisfied about the strain relations of the spouses then marriage can be dissolved although the same is not claimed. It has been held in various pronouncements that Khula is a pure question of law and that can be raised at any stage of the proceedings and decision can be taken by the Court on the basis of available evidence on the record."
So far as, the argument of the learned counsel for the appellant that the appellant, herein, was entitled for maintenance charges since 2017, is concerned, it may be stated that in the suit for maintenance allowance, the plaintiff/appellant, herein, alleged that the defendant/respondent, herein, never paid maintenance charges to her even during the period when she was living with him. The plaintiff/appellant, herein, claimed maintenance charges from January, 2017. The defendant/respondent, herein, specifically refuted the claim of the plaintiff and stated that the appellant was not ousted from the house by the husband rather she went out voluntarily. The law is settled on the point that husband is duty bound to pay maintenance charges to wife when she is faithful to the husband and lives with her. If a wife voluntarily leave the house of her husband, she is not entitled to the maintenance charges. It is revealed from the record that the plaintiff/appellant left the house of her husband with her brother Asif and brother-in-laws Ajmal and Haroon, thus, the learned Family Court has rightly dismissed the suit for recovery of maintenance allowance. Such like proposition came under consideration of this Court in the case reported as Shahpal Anjum v.
Mst. Samina Kousar [2019 SCR 226], whereby, it was observed in para 14 as under:- "14 No doubt, a husband is under the obligations to maintain his wedded wife but at the same time the Holy "Qur'an" and "Sunnah" has cast some duties and obligations upon the wife which are originated from Verse No. 34 of surah Al-Nisa, which is as follows: The command of the Allah in this verse is very much clear that: `Men are protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore, the righteous women are devoutly obedient and guard in (the husband's) absence what Allah would have guard them.'
Thus, it is clear that duty of the husband to maintain his wife is conditional with performance of marital obligations. According to clear command of Allah, it is the fundamental duty of the wife to guard the reputation, property of her husband in his absence and also her own virtue.
Same like, in verse No.7 of Surah Al-Talaq, the Almighty Allah has commanded a principle that the maintenance allowance should be according' to the financial position of the husband. Verse No.7 reads as follows: - `Let the man of means spend according to his means and the man whose sources are restrained; let him spend according to what Allah has given him. Allah puts no burden on any person beyond what he has given him. After a difficulty, will soon grant relief'
There are number of the sayings of the Holy Prophet (Peace Be Upon Him) which are of binding nature. There is consensus of opinion between the eminent Islamic Scholars that the right of maintenance of a wife is not unconditional rather it is conditional with discharging the obligations of the contract of marriage."
While dealing with the same like proposition, in the case reported as Arshad Ali v. Additional District Judge Vehari and others, [2002 CLC 1450], it has been observed that:- "11. There is no cavil to the proposition that a husband is bound to maintain his wife but right of maintenance of the wife is subject to the following conditions:-
(i) She must be faithful to the husband and obey his reasonable order, if she refuses herself to him, he is not bound to maintain her; Wife is not entitled to maintenance when she lives apart from the husband except for non- payment of her dower in which case her right of maintenance continues even though she is living apart from him."
Similarly, in another case reported as Mst. Amreen v. Muhammad Kabir (2015 YLR 170) it has been observed by this Court in para 17 as under:- "17. Thus it can safely be concluded that it is the duty of the husband to maintain a wife till she is faithful to him and ready to live with him in his house and perform her part in this respect but if a wife abandons the residence of his husband voluntarily without any reason and is not ready to live with him as his wife then she is not entitled to past or future maintenance. It is further observed that if a wife is ousted from the house by husband or she is forced to leave the house of her husband due to cruelty physical or mental by the husband or other inmates of his family, she is entitled for maintenance charges."
Thus, we came to the conclusion that the findings recorded by the Courts below are in accordance with law, therefore, are hereby approved.
In view of the above, finding no force in this appeal, the same is p hereby dismissed, No order as to costs.