MUHAMMAD BASHIR KHAN JEHANGIRI, J.--Khurshid Ahmad, petitioner, has filed this constitutional petition calling in question the legality of the order dated 17-7-1988 passed by the Additional District Judge, D.I. Khan, confirming the order of the Judge, Family Court, D.I. Khan, dated 16-9-1987 decreeing the suit for dissolution of marriage brought by Mst. Attiya Nigar, respondent No.1, her were, and for recovery of dower amount of Rs.10,000 and further directed the petitioner to pay maintenance allowance of Rs.7,500 from 15--6-1986 to 16-7-1987.
2. Brief facts of the case are that marriage of respondent No.1 was solemnised with the petitioner on 18-4-1980. He had executed a `Kabin-nama' on 18-4-1986 in favour of the respondent No.1 undertaking to pay Rs.10,000 as dower amount and Rs.5000 per mensum by way of maintenance.
The parties could live together only for 1-1/2 months whereafter the respondent No.1 complained of cruel treatment by the petitioner and went to live with her maternal uncle at D.I. Khan. The petitioner had earlier filed a suit for restitution of conjugal rights in the Court of Judge, Family Bakkar, which was ultimately decreed ex parte. On 18-11-1986, she instituted suit for dissolution of marriage, recovery of dower amount of Rs.10,000 and maintenance allowance of Rs.7,500 for the period specified in the earlier part of this judgment.
3. The petitioner resisted the suit and took up the defence that he had paid the dower amount. His defence further was that respondent No.1 was not entitled to any maintenance allowance, in that, she was living separately from him and, therefore, the petitioner had obtained a decree for restitution of conjugal rights. The learned Judge, Family Court, on the pleadings of the parties, framed as many as 10 issues including the relief. For the purposes of this petition, the following issues are material: (6)Whether the defendant has obtained a decree dated 13-1-1987 for restitution of conjugal rights from the Court, if so, its effect on the present case?
(7)Whether the defendant has paid the dower amount to the plaintiff?
(8)Whether the plaintiff is entitled to the decree for dissolution of her marriage on the grounds mentioned in her plaint?
(9)Whether the plaintiff is entitled to recovery of dower amount and maintenance on the grounds mentioned in her plaint?
(10) Relief.
4. The learned Judge, Family Court, decided issue No.6 against the petitioner, because according to her, he had neither produced any document in her Court nor the Court was informed about any such decree. The Judge, Family Court, also decided issues Nos.7,8 and 9 in favour of respondent No.1 and, as stated earlier, decreed the suit for dissolution of marriage and recovery of dower and maintenance allowance. Against the last mentioned two items petitioner filed an appeal in the Court of the learned District Judge, D.I. Khan which too was dismissed by Malik Jehangir Khan, Additional District Judge, D.I. Khan, on 17-7--1988. Being aggrieved, the petitioner has filed the present constitutional petition.
5.S. Mushtaq Ali Shah, the learned counsel for the petitioner, contended that there was not an iota of evidence in support of the allegation of cruelty brought against the petitioner. He further submitted that the amount of dower had been paid on the very first night of the marriage and, therefore, the findings of the two Courts below were based on no evidence whatsoever. His further contention is that the non-payment of maintenance allowance in no way is proved by the evidence led by respondent No.1. His last grievance is that respondent No.1 had in essence claimed dissolution of her marriage on the basis of `Khula' and referred to the concluding para. Of the plaint where respondent No.1 has alleged that she had developed serious aversion against the petitioner and the spouses cannot live together within the limits prescribed by Almighty Allah.
6.Both the Courts below are unanimous on the point that the petitioner has treated respondent No.1 with cruelty and she was, thus, entitled to a decree for dissolution of marriage under clauses (ii) and (viii) of section 2 of the A Dissolution of Muslim Marriages Act, 1939 (VIII of 1939). The learned Judge, Family Court, has not taken notice of a pamphlet which was addressed by the father of the petitioner to the relatives of respondent No.1, a photo copy of which has been placed on the file. In this pamphlet, there are serious charges of immorality against respondent No.1. The contents of this nefarious pamphlet were noticed by the learned Additional District Judge while disposing of the appeal filed by the petitioner against the portion of the judgment and decree concerning the recovery of dower and maintenance allowance. In the written statement of the petitioner also, there is a charge of misappropriation of Rs.40,000 apart from Rs.2,000 against respondent No.1 which he had reiterated in his evidence before the Family Court. Even if the pamphlet is ignored, this charge itself amply speaks for the "cruelty of conduct" attributed to the petitioner within the meaning of clause (viii) of section 2 of Dissolution of Muslim Marriages Act, B 1939 (a). We are, therefore of the view that the learned Judge, Family Court, was justified to have granted respondent No.1 a decree for dissolution of her marriage and no exception can possibly be taken to the said finding.
7. The onus probandi to prove the payment of dower amount to respondent No.1 heavily lay upon the petitioner and the two Courts below have rightly held I that he has failed to discharge this burden. The findings of the two Courts below qua the recovery of dower amount do not suffer from any non-reading or misreading of evidence.
8. Under the law the were is entitled to receive the maintenance allowance from her husband if she had not refused to live with her husband without any "sufficient reasons". The learned two Courts below have held that respondent No.1 was living separately from the petitioner for "sufficient reasons" and, therefore, she was not disentitled to get maintenance from him.
9. The last contention of the petitioner's counsel is that the decree for dissolution of marriage should be taken to have been passed on the basis of `Khula' to which she was not entitled particularly when she has not returned the benefits to the petitioner which she bad received from him, namely, dower amount and ornaments etc. The perusal of the impugned orders of the two Courts below would show that the decree for dissolution of marriage was not passed on the ground of `Khula'. On the other hand, it was granted to respondent No.1 under clauses (ii) and (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939. This contention of the learned counsel is thus not tenable.
10. No other objection has been raised. Even otherwise, the orders of the two Courts below do not suffer from any jurisdictional defect to call for interference in exercise of our extraordinary powers of judicial review under Article 199 of Constitution.
11. For the foregoing reasons, the writ petition being without merit is dismissed. However, there is no order as to costs.