SHAHID KHAN, J. The subject W.P No.425-B/2022 titled Rifat Ullah Vs. Mst. Hadia Mustafa and others and connected W.P No. 581-B/2022 titled Mst. Hadia Mustafa Vs. Rifat Ullah and others are outcome of a common judgment of learned appellate Court, therefore, the subject judgment shall dispose of the same accordingly.
2. Petitioner has invoked jurisdiction of the Court under Article 199, Constitution of Islamic Republic of Pakistan, 1973, for the following relief: "On acceptance of the instant writ petition, this Horrible Court may very graciously be pleased to set aside/ modify judgment & decree dated 21.5.2022, passed by the learned District Judge, North Waziristan in Family Appeal No.13/FC/2021 and Judgment & decree dated 21.9.2021 passed by the learned trial Court/ JFC, North Waziristan by declaring the same as against the law and facts and to dismiss family suit of plaintiff with cost throughout. This Hon'ble Court may also be pleased to issue necessary directions regarding restoration of dower Rs.04 lac in favour of petitioner already paid to plaintiff and admitted by her. This Hon'ble Court may also be pleased to grant any other relief considered just and appropriate under the given circumstances of the case."
3. Brief facts of the case are that respondent No.01/plaintiff instituted a suit for:- a) Recovery of dower as 07 tola gold ornaments. b) Recovery of past maintenance @ Rs.10.000/- per month net in the sum of Rs.2,20,000/- till her Iddat. c) Recovery of Rs.13,95,000/-as medical expenses d) Recovery of dowry articles or its market value and e) Dissolution of marriage (Nikah).
4. Marriage of the parties/spouses solemnized in May 2018 in lieu of dower as 07 tolas gold ornaments.
As per custom, culture & tradition of the locality the bridal (plaintiff) was accompanied by dowry articles worth Rs.3,41,200/-. The matrimonial relation between the spouses was initially cordial, however, due to the harsh & insulting attitude of the he partner (defendant/husband), it became strain gradually, whereas, it became so harsh and unbearable with the passage of time and used to mentally & physically torture her. The attitude of the defendant was so harsh and unbearable that she was shunt out from his house. On clinical investigation, breast cancer of the plaintiff diagnosed after almost four months of the marriage, even then she was used to be torture physically, mentally & psychologically. The plaintiff was hopeful of normalcy of the matrimonial relation of the spouses and better & bright future but in vain. She was ousted from his house and have no option to join his parents. Her father facilitated her for treatment of cancer and spent more than Rs.13,95,000/- on clinical investigation & treatment. The defendant/husband has neither contributed for the medical treatment expenses nor routine maintenance and have not paid/tendered a single penny. Every effort has been made to convince the defendant for return of the dower and dowry articles worth Rs.3,41,000/- but with no positive response and it compelled the petitioner to approach the Court of competent jurisdiction for appropriate remedy.
5. Defendant was summoned, he appeared and contested the suit of the plaintiff by furnishing written statement, wherein, the allegations of the plaintiff was denied coupled with raised legal as well as factual objections. The divergent pleadings of the parties were reduced to legal and factual issues by the learned trial Court and the parties were put on trial.
6. The parties furnished their respective evidence in support and denial of their respective claims & counter claims.
7. On conclusion of the trial, the learned trial Court, heard learned counsel for the parties and arrived at the conclusion that the claim of the plaintiff is partially well found, as such, it was partially allowed to the extent of recovery of 07 tola gold ornaments as dower, recovery of maintenance allowance @ Rs.5000/- per month with 10% annual increase till actual payment since June, 2018 till completion of Iddat period, Rs.500,000/- in lieu of medical treatment and Rs.1,00,000/- as market value of dowry articles.
8. Feeling aggrieved from the judgment and decree of the learned trial Court, the petitioner approached the Court of the learned District Judge, North Waziristan through appeal, it was partially allowed, whereof, the judgment and decree of the learned trial Court was modified in the following manner:- i. Marriage between the parties was dissolved on the basis of Khula. ii. Plaintiff was held entitled for maintenance @ of Rs.10,000/- per month for the period of Iddat. iii. Rs.341,200/- were decreed in respect of dowry articles and iv. Rs.5,00,000/- were decreed in respect of medical expenses/treatment.
9. Not contented with the judgment and decree of the learned appellate Court, the parties approached this Court through their respective constitutional petitions.
10. Learned counsel for the parties have been heard at a considerable length and the record has been gone through with their due assistance.
11. The respondent/plaintiff has claimed a decree for recovery of 07 tola gold ornaments as dower, whereas, the defendant as per his written statement claimed that the dower so fixed on the mutual understanding of the parties as well as their respective elders was fixed as Rs.4,00,000/- and the same has been duly tendered & paid at the time of Nikah.
12. The plaintiff in support of her stance regarding the dower placed reliance on the account of her father Muhammad Mustafa Shah as PW-3, whereof, in his examination-in-chief, he highlighted that at the time of engagement, dower of the plaintiff was fixed as 07 tola gold ornaments. Likewise, the same is the version of the plaintiff as she also narrated in the witness box as PW-4, however, in her cross-examination she admitted that the dower amount as Rs.400,000/- was paid to her by the defendant, however, the same has been recollected from her on arrival to the house of defendant.
Relevant portion of her cross-examination is reproduced as under:- Nikah Khwan has not been produced during the trial, so that he could comment upon the subject portion of the dower. Likewise, registered Nikah Nama of the spouses is also not part & parcel of the record being not furnished during the trial, so that due inference could be taken in respect of the subject portion of the dower of the plaintiff Moreso, defendant when appeared before the learned trial Court as DW-4, he corroborated his stance with regard to fixation of dower as Rs.4,00,000/- and its payment to the plaintiff at the time of marriage. He also produced a receipt Ex.DW1/4, relating to the terms & conditions of marriage, however, the document/receipt in respect amount in the sum of Rs.4,00,000/- has been conceded by the defendant/husband in his examination-in- cross as Rs.4,00,000/- was fixed as dower and when the defendant was asked about conditions mentioned in Ex.DW1/1, he admitted the same as correct. The above discussion is sufficient enough to observe that both the he and she partners have admitted that dower was fixed as Rs.4,00,000/- which was paid to the plaintiff by the defendant at the time of marriage.
13. The respondent/plaintiff has also claimed for recovery of maintenance allowance amounting to Rs. 220,000/- for past 22 month @ Rs.10,000/- per month and at the same rate for future maintenance till decision of the suit and Iddat period. It is admitted that the matrimonial relation between the spouses was initially cordial and attitude of the defendant/husband was also pleasant & affable towards the she partner, however, with the passage of a month or more of the marriage, the petitioner/defendant started beating her severely on petty matters. He also used to abuse her parents. The plaintiff bore the same with the hope of better future and normalcy of the relation between the spouses. After four months of the marriage, the plaintiff was diagnosed with breast cancer and she requested the defendant for treatment or payment of dower so as to be encash for her treatment but in vain and used to torture her physically & mentally and at the end she was ousted from the house. She accompanied her parents and medical expenses on her treatment in the sum of Rs.13,95,000/- was incurred by her parents. The defendant has never ever inquired for her health for the last 22 months and as a token of courtesy had not paid a single penny either for her maintenance or medical treatment. The account of PW-3 and PW-4 in this regard is worth perusal, whereof, the allegations in the pleadings duly support and substantiate the subject version.
14. As against it, the petitioner/defendant could not be able to falsify the version of the respondent/ plaintiff through cogent, reliable and confidence inspiring evidence to the effect that not only on diagnose of the subject disease/infirmity, his attitude towards his she partner was harmonious, cordial & friendly right from the wedding night till date. The record is silent that the petitioner/husband after the diagnose of breast cancer of the respondent/wife, he was more than friendly with her not as per his attitude but every effort was made to pay her due company, respect & regard as per conservative culture of this part of the country.
15. The peculiar facts & circumstances of the event in hand has been duly appreciated in view of the evidence so recorded by the learned trial Court while adjudicating upon the event through sound & well reasoned judgment, whereof, the allegations & counter allegations have been duly analyzed followed by a sound and well reasoned judgment. Likewise, the learned appellate Court has not only endorsed the findings of the learned trial Court to the extent of separation of the spouses, however, the appellate Court differed with the learned trial Court regarding the maintenance on the ground that the respondent/plaintiff could not substantiate cruelty on part of the husband and on this score alone being failed to perform her marital obligations, she could not claim the past maintenance.
16. Needless to highlight, positive and direct evidence regarding the physical cruelty could have not been furnished by the respondent/wife during the trial, so that she could substantiate on the strength of the signs & symptoms of cruelty. But it shall not escape the attention of the Court that the concept of the physical cruelty does find its mention only in the conservative rural culture and that too in the class of segment of society below the poorty segment. There is no denial at all that the record does not speak of the severe physical torture on part of the petitioner/husband to the respondent/wife. But it is floating fact on surface of the record that the respondent/wife was diagnose in view of clinical investigation to be a patient of cancer and it is hard fact that even an uneducated & rural person is conscious enough that patient of cancer is hard to be recovered rather he is at the verge of end of his life and suppose to be expired of his natural death because of his illness in the near future. On this score alone the subject patients do deserve due attention, company, love, care, respect, regard & harmony of their nearer and dearer. Not only in the conservative culture of this part of country but around the globe due care, love, affection & friendliness is extended to the subject patients not as a token of sympathy but as a token of courtesy. it is next to impossible rather unbelievable of a life partner to have an unbecoming, improper & indecent attitude with his she partner knowing to be suffering from an incurable disease and have a thin chance of survival.
17. The evidence so furnished during the trial is absolutely silent regarding the fact that the petitioner/husband has ever accompanied the respondent/ wife either for her visit in respect of clinical investigation or clinical diagnose on her consultant/doctor. Due love & affection is the inherent right of the she partner, what so say of not to tender the same, the record speaks loud & clear of the unbecoming attitude of the petitioner/husband. It has been duly appreciated in view of the evidence so recorded not only by the learned trial Court but has been duly substantiated & affirmed by the learned appellate Court, however, fallen in error to affirm and declare the same as cruelty on part of the petitioner/husband. By now it is well settled, only the physical torture on part of the he partner to the she partner is amount to cruelty even mental, moral and psychological torture does amount to cruelty either on part of the he partner or she partner.
18. The peculiar facts & circumstances of the event coupled with the evidence so scrutinized has driven the Court to the conclusion that the impugned judgment of the learned appellate Court to dissolve the marriage tie of the spouses on the ground of Khula is not tangible in view of the evidence so floating on surface of the record, whereas, the conclusion of the learned trial Court to dissolve the marriage tie on the ground of cruelty is well found, as such, on acceptance of the subject petition the impugned judgment & decree of the learned courts below is modified to the effect that the matrimonial tie between the spouses is dissolved on the ground of cruelty. Likewise, the respondent/plaintiff is also entitled for past maintenance @ Rs.10,000/- per month from the date of institution of suit till Iddat period.
19. With regard to stance of the respondent/ plaintiff for the recovery of dowry articles as per Mud Daal is concerned. She in her statement as PW-4 repeated the prayer for recovery of dowry articles besides other prayers. The petitioner/ defendant other than denying the same did not produce any evidence of any nature to substantiate the stance taken by him in his written statement with regard to the dowry articles. Perusal of dowry articles as per Mud Daal reveals that the same is consist upon daily used articles and as per custom and usages of this part of country, parents used to accompany the bridal/daughter on the occasion of her rukhsati with the dowry as per their financial status, hence judgments and decrees passed by the learned appellate Court in respect of issue No.10 is based on proper appreciation of law and evidence on record which warrant no interference.
20. So far as the recovery of medical expenses is concerned, the learned appellate Court has rightly appreciated the pleadings and evidence brought on record by the parties and correctly reached to the conclusion that respondent/plaintiff is entitled for recovery of Rs.5,00,000/- as medical expenses.
21. The cumulative effect of what has been stated above, leads this Court nowhere, but to hold that the impugned judgment/decree passed by the learned appellate Court is modified and the respondent/plaintiff is entitled for recovery of past maintenance @ Rs.10,000/- per month from the date of institution of the suit till her Iddat period. Similarly she is also entitled for the decree for dissolution of marriage on the basis of cruelty. Rest of the judgment/decree of the learned appellate Court is maintained. The instant W.P No.425-B/2022 being bereft of merit is dismissed, however, the connected W.P No.581- B/2022 is partially allowed in above terms.