Raza Ali Khan, J. The captioned appeal by leave of the Court arises out of the judgment dated 19.2.2020; passed by the High Court of Azad Jammu and Kashmir, in family Appeal No. 265 of 2017.
2. The brief facts forming the background of the captioned appeal are that the plaintiff-appellant, herein, filed two suits i.e. one for recovery of maintenance allowance and second for dissolution of marriage. It was averred that the marriage between the spouses was solemnized on 2.10.2011, in lieu of dower of Rs.5000/- and out of their wedlock one male child, proforma respondent, herein, was born. It was further averred that relations between the spouses remained cordial, however, later on, the behavior of the defendant became harsh and he used to beat her and thereafter, he went abroad. It was stated that the parents of the defendant maltreated her and after beating, ousted her from the house of the defendant and since then she is living a miserable life. It was further stated that the defendant is earning a handsome money in abroad, therefore, by accepting the suit maintenance allowance @ Rs. 10000/- per month each may be passed in their favour. She also prayed that a decree for dissolution of marriage on the basis of cruelty, maltreatment and non- payment of maintenance allowance may also be granted. The respondent, herein, also filed a cross suit for restitution of conjugal rights. The suits were contested by the parties by filing of the written statements. The learned Family Judge, in light of the pleadings of the parties framed issues and directed them to lead evidence pro and contra and at the conclusion of the proceedings, decreed the suit for dissolution of marriage on the basis of cruelty and also decreed the suit for recovery of maintenance allowance from 24.8.2013 @ 5000/- per month each and the proforma respondent, herein, was also held entitled 10% of annual increase, whereas, the cross suit filed by the respondent, herein, was dismissed through the impugned judgment and decree dated 10.10.2017. Feeling aggrieved, the respondent, herein, filed an appeal before the learned Shariat Appellate Bench of the High Court, which has been partly accepted through the impugned judgment and decree dated 19.2.2020.
3. Malik Qadeer Hussain, the learned Advocate appearing for the appellant while reiterating the grounds taken in the memo. of appeal argued that two suits were filed by the appellant, herein, before the learned Family Judge Mirpur, i.e., one for dissolution of marriage on the basis of cruelty and the second for maintenance allowances and the third suit was also filed by the respondent for restitution of conjugal rights before the same Court on 16.12.2014, 30.1.2014 and 4.12.2013 respectively.
He further argued that the suits were contested by the respective defendants and after recording the evidence, the learned Family Judge granted the decree in favour of the appellant on the basis of cruelty and also granted the maintenance allowance to the tune of Rs. 5000/- per month each, whereas, the suit filed by the respondent was dismissed. The learned Advocate maintained that the respondent challenged the legality anal correctness of the judgment of the learned Family Judge through an appeal before the Shariat Appellate Bench of the High Court and the learned Shariat Appellate Bench of the High Court through the impugned judgment granted the decree in favour of the appellant on the basis of Khula while curtailing the right of the dower of the appellant, without having regard to the record and evidence, hence, the impugned judgment is liable to be set aside. The learned Advocate further argued that the learned Shariat Appellate Bench of the High Court was not justified to set aside the judgment of the trial Court without there being any appeal, therefore, the decree on the basis of Khula was illegal. The learned Advocate further argued that the respondent has not attached the copy of decree of dissolution of marriage with the appeal before the learned Shariat Appellate Bench of the High Court, as such the mandatory requirement of Rule 22, sub-Rule 3 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998 was not fulfilled, hence, his appeal was not competent and liable to be dismissed. The learned Advocate vehemently argued that according to the rule of law laid down by this Court, cruel attitude is not only confined to hateful attitude of husband but it also includes the behaviour of the inmates of the house and the circumstances due to which the wife is forced to abandon the house of her husband, but the learned High Court has not adhered to this aspect of the case while delivering the impugned judgment. The learned Advocate further argued that the impugned judgment is result of misreading and non-reading of evidence, hence, the same may be set aside while accepting the appeal. In support of his contention, the learned Advocate has placed reliance on the cases reported as 2010 SCR 369 and 2014 SCR 504.
4. Conversely, Raja Khalid Mehmood, the learned Advocate appearing for the respondent has forcefully defended the impugned judgment on all counts. He argued that the learned Family Judge while handing down the judgment failed to apply judicial mind, therefore, the learned Shariat Appellate Bench of the High Court has rightly set aside the same. The learned Advocate further argued that the impugned judgment has been passed quite in accordance with law and the record, hence, the same warrants no interference by this Court. The learned Advocate added that the appellant failed to point out any illegality in the impugned judgment, therefore, the appeal filed by her may be dismissed.
5. We have heard the learned Advocates representing the parties and have gone through the record of the case made available along with the impugned judgment. First of all, we would like to meet the Argument of the counsel for the appellant that the respondent, herein, has not attached the decree of dissolution of marriage with the appeal before the learned Shariat Appellate Bench of the High Court, hence, his appeal was not competent. In light of the argument of the counsel for the appellant, we have perused the file of the learned Sharait Appellate Bench of the High Court and failed to found the decree in the file. The question which needs resolution is that if memorandum of appeal is not accompanied with the copy of decree-sheet appealed from with the judgment on which it is founded, then what would be its affects on the appeal. It may be observed here that according to sub-rule (3) of Rule 22, of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, the filing of the copy of decree sheet and decision of the Court, where decree is passed, is mandatory and without attaching the same, appeal cannot be filed. This Court while dealing with the proposition has discussed the relevant provisions of law in a comprehensive manner in the case reported Rashida Bibi vs. Muhammad Nazir & another (2010 SCR 369). The relevant portion of the cited case is reproduced as below:- "...Order XLI Rule 1 of the Code of Civil Procedure, 1908 provides that memorandum of appeal shall be accompanied with the copy of decree sheet appealed from (unless the appellate Court dispensed with) with the judgment on which it is founded. This provision has been interpreted by this Court in a number of 2010 Supreme Court Recorder 373 cases that copy of the judgment can be dispensed with by the Court but the copy of decree sheet cannot be condoned by the Court. But in Section 17 of the AJ&K Family Courts Act, 1993, it is provided that provisions of Qanun-e- Shahadat Order, 1984, and Code of Civil Procedure are not applicable in the proceedings in Family Court. When the provisions of Code of Civil Procedure are not applicable in the proceedings, the Family Court should adopt the procedure regulating the filing of appeal which is provided in Rule 22 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998. It will be useful to reproduce Rule 22 for resolving the controversy:-- "22. (1) An appeal under Section 14 shall be preferred within thirty .days of the passing of the decree or decision, excluding the time requisite for obtaining copies thereof." Provided that the appellate Court may, for sufficient cause, extend the said period.
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3. A certified copy of the decree and decision of the Court where a decree is passed, and a copy of decision where only an order is passed shall be attached with the appeal.
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5. A perusal of sub-rule (3) of Rule 22, reveals that phraseology of the rule appears to be mandatory. The filing of copy of decree sheet and decision of the Court, where decree is passed, is mandatory and without attaching the same, appeal cannot be filed. The provision is similar to that of Order XLI Rule 1 of the Civil Procedure Code. The marked difference between the two provisions is that copy of judgment can be dispensed with by the Court but copy of decree sheet cannot be dispensed with under Order XLI Rule 1 of the Civil Procedure Code. Rule 22 of the AJ&K Family Courts Procedure Rules, 1998, provides no such provision and filing of the copy of decree sheet and decision both are mandatory. This Court in a case titled Abdul Aziz v. Abdul Hamid [2000 SCR 419] has resolved the controversy whereby the appeal filed before the District Judge was not accompanied by the copy of decree sheet. The Court has declared that filing of the copy of decree sheet is mandatory under Order XLI Rule 1 of the Code of Civil Procedure and appeal was dismissed on this ground. The relevant observation of the Court is as follows:-- "5. The moot point in the case is as to whether the memorandum of appeal filed in the Court of District Judge did not accompany the copy of the decree-sheet, and, thus, the same was not validly instituted. It may be observed that under Rule 1 of Order XLI, C.P.C, it is mandatory for the appellant to file a copy of the decree sheet along with the memorandum of appeal; non-filing of the copy cannot be condoned by the Court..........."
From the above, the Shariat Court was justified in dismissing the appeal under Rule 22 of the Azad Jammu and Kashmir Family Courts Procedure Rules, 1998 for non filing the copy of decree sheet with the memorandum of appeal...."
The same view was taken in the judgments reported Azad Govt. of the State of Jammu and Kashmir through Chief Secretary and 5 others vs. Syed Sajjad Ali Gillani and another (2001 CLC 1105) and Chairman M.D.A. Mirpur and another vs. Ch. Muhammad Salim (PLJ 2002 SC (AJ &K) 127).
Thus, in light of the rule of law laid down in the supra cases, it was enjoined upon the appellant to annex the copy of the decree-sheet appealed from but he failed to do so. The appeal, without annexing the copy of the decree-sheet was not maintainable. As from the case referred above, it is evident that the Court has power to dispense with the copy of the judgment but the Court has no power to dispense with the copy of the decree-sheet as such the appeal was not competently filed before the learned Shariat Appellate Bench of the High Court.
6. Even otherwise, we have ourselves perused the evidence of the parties and after analyzing the same with the judgment of the learned Family Judge, reached at the conclusion that the learned Judge Family Court appreciated the evidence led by the parties in its true perspective in accordance with law and the record and the learned High Court was not justified to differ with the findings recorded by the learned Judge Family Court as no misreading or non-reading of evidence in the judgment of the learned Judge Family Court was pointed out.
In the light of above, the appeal is accepted and the impugned judgment dated 19.2.2020, passed by the learned High Court is set aside and the judgment and decree 10.10.2017, passed by the learned Judge Family Court, Mirpur is restored. No order as to costs.