1. ' Supra titled appeal has been filed against the judgment passed on September 30, 1999 by Judge Family Court, Rawalakot whereby suit filed by the appellant for dissolution of her marriage was allowed subject to return or ornaments or payment of Rs, 40,000 the price of the ornaments to the respondent.
2. ' Briefly stated the facts of the case are that the appellant herein filed a suit against her husband on January 14, 1998 for dissolution of her marriage. The trial Court vide order, dated September 30, 1999 allowed her decree on Khula' for dissolution of her marriage subject to return of ornaments or Rs,40,000 the price of the ornaments. This judgment has been assailed through instant appeal.
3. ' Admitted facts are that marriage of the parties took place on February 21, 1993 in lieu of dower amount of Rs, 1,40,000. The plaintiff-appellant sought dissolution of marriage on the ground of non- payment of maintenance allowance and for failure to perform matrimonial obligations for a period exceeding 3 years and that she was treated with cruelty by the respondent and that on account of these reasons, she has developed hatred for him, as such, cannot live with him as his wife.
4. ' The suit was resisted by respondent who in his written statement dated May 9, 1998 denied the averments of the plaint that he had been meting out cruel treatment to the plaintiff-appellant.
5. According to the respondent, the plaintiff-appellant went to the house of her parents happily to see them at the time when he was out of country. She did not return to his house. It was denied by respondent that plaintiff-appellant was residing separately from him for a period exceeding 3 years. Later on he also filed a suit for the restitution of conjugal rights on January 14, 1999. In his suit respondent has contended that his marriage took place with the appellant on February 21, 1993.
6. She resided with him as his wife and performed her matrimonial obligations. He thereafter, left abroad and came back to his house after a period of one year and then spent 3 to 4 months with the plaintiff appellant in the house. Both had very good relations during this period. The defendant respondent once again left abroad. In his absence, the plaintiff-appellant went to see her parents happily and thereafter, on their provocation did not return home. On February 10, 1999 the plaintiff- appellant filed her written statement in which she once again attributed cruelty to defendant- respondent and that he after beating her, turned her out from his house. According to her, her husband the present respondent was compelling her for remission of her dower amount. On her refusal to do so she was beaten by her husband and turned out from the house with a threat that she would be burnt alive if she will return to his house. She once again pleaded that the present respondent treated her with cruelty and has failed to perform his matrimonial obligations for a period exceeding 3 years and has also failed to provide for her maintenance for the said period.
7. ' Initially in the suit of the appellant issues were framed on July 4, 1998 and after consolidation of the cross-suits issues were framed on March 6, 1999. Plaintiff-appellant was directed to lead her evidence. She in support of her claim produced Muhammad Javid, Amjad Iqbal, Muhammad Saghir and Asghar Zamir as her witnesses and also got her statement recorded. The respondent who is settled in Dubbai appointed his real brother Khursheed who appeared on his behalf as witness and also produced Fahim Ishaq, Muhammad Khalil and Shaukat Hussain as his witnesses.
8. All the issues were decided against the plaintiff-appellant, When repeated attempts for reconciliation made by the Court had failed, the learned Presiding Officer of the trial Court draw the conclusion that it was not possible for the parties to live together as husband and wife within the limits ordained by Almighty Allah-and allowed decree for divorce subject to return of ornaments or 40 thousand rupees the value of the ornaments to the defendant-respondent as Khula amount.
9. This judgment has been assailed through instant appeal before this Court.
10. ' Mr. Khalid Hussain Rathore the learned counsel for the appellant argued that plaintiff-appellant was entitled to the decree for divorce on the grounds of non-payment of maintenance allowance to her by the defendant-respondent for a period exceeding 3 years and for non-performance of matrimonial obligations for the same period and cruelty. According to the learned counsel, golden ornaments valuing Rs,40,000 were snatched by the defendant-respondent when he after beating, plaintiff-appellant turned her out from his house forcibly before leaving abroad on the ground that she had refused to remit the remaining dower amount. The trial Court on account of misreading and non-reading of evidence has wrongly allowed decree on Khula subject to return of golden ornaments or Rs, 40,000 the price of these ornaments to the respondent-husband.
11. ' On the other hand it was argued by Sardar Rafique Mehmood Khan the learned counsel for the respondent that plaintiff-appellant in fact left the house of the respondent in the month of December, 1995. On her desire, she was provided maintenance through her real sister Miss Khalida in whose name first cheque of Rs 4,000 was issued by respondent on August 3, 1994, second cheque of Rs,2,500 was issued on September 24, 1994, third cheque of Rs, 2,500 on October 27, 1994 and last cheque of Rs, 2,000 on February 4, 1995. The photo copies of these cheque were presented in evidence by the attorney of the respondent. The plaintiff-appellant has not produced Miss Khalida in defence to prove that in fact this amount was not received by her. Learned counsel for the respondents also relied on the statement of Fahim Ishaq who in his statement has clearly stated that on the demand of the appellant, the parents of the respondent paid money to the plaintiff-appellant through him. The exact words used by this witness are as under:--- {{URDU TEXT}} ' It was further argued by the learned counsel that the decree for dissolution of marriage on Khula' has been allowed in favor of appellant after enquiry on facts by the trial Court subject to the return of ornaments valuing Rs, 40.000 or in case she wants to retain these ornaments on payment of Rs, 40,000 to her husband.
12. ' I have considered the respective arguments of the learned counsel for the parties and gone through the record of the case.
13. ' In this case, the plaintiff-appellant has herself admitted that she left the house of her husband when he had left for Dubbai. In her suit, she has claimed that when she demanded maintenance allowance from her husband and also declined to accept the demand of her husband for remission of dower amount, she was beaten by her husband and was turned out forcibly from his house. Her husband also threatened her that she would be burnt alive if she will return to his house.
14. This version pleaded by her in the plaint has not been supported by her witnesses. She has admitted that when she last time returned to the house of her in-laws, her husband had left abroad. It is, therefore, rightly observed by the trial Court that her witnesses have admitted that she left the house of her husband in his absence. The respondent witnesses have stated that she left the house of her husband in December, 1995. Even otherwise she was provided maintenance on her demand through her sister and through Fahim Ishaq witness. Last payment was made to her on February 4, 1995 through a cheque whereas no date was disclosed by Fahim Ishaq either in his examination-in-chief or in cross-examination for payment of any amount of maintenance through him. The appellant has not produced her real sister Miss Khalida in rebuttal that cheques issued in her name were false and no payment was made to her. The evidence of Fahim Ishaq also appears to be true as a suggestion was put to this witness that money received by the parents of the appellant through him was in fact for the marriage of the sister of the plaintiff-appellant and not for her maintenance. He denied this suggestion and categorically stated that the money was paid through him for the maintenance of the appellant. The appellant in these circumstances is not justified to claim dissolution of her marriage on this ground.
15. ' She has failed to produce any witness to support that her husband habitually assaulted her and made her life miserable by his cruel conduct.
16. ' No evidence was available on record to hold that the hatred of the appellant wife for her husband is reached such a stage that there would be no question of their living as husband and wife within the limits ordained by Almighty Allah except the observations recorded by the trial Court in the impugned judgment. I, therefore, felt it proper to direct parties to appear before me personally.
17. Appellant appeared before the Court, respondent was represented by his brother as his attorney who disclosed that respondent husband is serving in Dubai, as such, it is not possible for him to attend the Court The plaintiff-appellant, despite best efforts made by me, openly stated that she will prefer death than to live with the respondent as his wife. In the light of her behavior I am satisfied with the observations of the trial Court that it would not be possible for the parties to live together as husband and wife within the limits ordained by Almighty Allah. In view of these facts, the trial Court rightly dissolved the marriage on Khula. The plaintiff has denied in her suit that she received any amount out of dower money fixed at the time of her marriage with the respondent.
18. Her witness Muhammad Saghir has admitted in his statement that out of dower amount, Rs, 40,000 were paid in the shape of ornaments to the plaintiff-respondent. .The same is the statement of his other witness Muhammad Ashraf Khan who like Muhammad Saghir has stated in his examination- in-chief that ornaments valuing Rs,40,000 were paid against dower amount. Even plaintiff in her statement before the trial Court has admitted that she was given ornaments valuing Rs, 40,000.
19. The trial Court, therefore, was justified in law in directing her to refund either the ornaments which she had received from her husband or pay him Rs, 40,000 the price of the ornaments because she has gone to the Court seeking dissolution of her marriage. I disagree with the learned counsel for the respondents that decree for divorce shall attain finality when the Khula amount fixed by the trial Court shall be paid to the defendant-respondent. The decree has become effective from the date when it was passed by the trial Court, due to non-filing of appeal by the defendant- respondent.
20. ' In view of above, the appeal having no merit is dismissed with no order as to costs.