Sunday 20 May 2012

Wife can claim maintenance even living seperately

PLJ 2008 Sh. C (AJ&K) 73

Present: Iftikhar Hussain Butt, J.

Raja TAHIR BASHIR--Appellant

versus

Mst. GULSHEEDA BIBI & others--Respondents

Civil Appeal No. 40 of 2007, decided on 9.4.2008.

Principle--

----Khulla--Before invoking the power to annual marriage on ground of Khulla, the Court must satisfy its conscious whether the spouses can live a life of love, affection, trust and harmony if not, then it is better to break the hateful union.     [P. 77] A

Khulla--

----Dissolution of marriage on basis of Khulla--Decree on ground of Khula, can be granted on the satisfaction of the Court that the spouses cannot live together within the limits exercised by the Holy Quran--Held: It is crystal clear that if the spouses have developed hatred and disrespect between each other and there is no ray of hope about their reconciliation then the marriage has to be dissolved on the basis of Khula, which is right of wife. [P. 78] B & C

PLJ 1986 Quetta 159(DB) & PLJ 1989 AJK 1.

Dowry--

----Recovery of dowry articles--Entitlement of wife--Dissolution of marriage--Dowry were perished during earthquake--Substitute--Price of dowry awarded--Held:--Appellant had admitted in his written statement that the dowry articles including the golden ornaments were given to respondent at the time of marriage ceremony--Some of the articles of dowry were perished during the earthquake and some of them were in his possession--Witnesses for the appellant had tried to prove the fact that during the earthquake the dowry articles were received whereas the witnesses of the respondent did not visit the house of the appellant--Appellant admitted that some of dowry articles were still in his possession--Held: On admission of the appellant, excluding the price of the golden ornaments and considering the damage during the earthquake, it would be in interest of justice to fix the price of dowry Rs. 100,000/- instead Rs. 1,50,000/--Appeal disposed of.      [P. 79] D & E

Maintenance--

----Entitlement of wife--Sufficient grounds--If the wife willfully refused to live with her husband then she is not entitled to receive maintenance from him but when there are sufficient grounds for refusal to live with husband i.e. ill-treatment for non-payment of dower, the wife can claim maintenance without going back to her husband.      [P. 80] F

Syed Mushtaq Hussain Gillani, Advocate for Appellant.

Mr. Muzaffar Hussain Mughal, Advocate for Respondents.

Date of hearing: 9.4.2008.

Order

This appeal is directed against the decision and decrees dated 21.08.2007, passed by Additional District Judge Hattian Bala cum Judge Family Court, whereby he has decreed four suits filed by the respondent Mst. Gulsheeda Bibi for dissolution of marriage, by granting right of Khula subject to payment of Rs. 25000/- the dower amount already received by her in consideration of marriage, the decree for recovery of dowry worth Rs. 1,50,000/-, a decree for maintenance allowance in her favour in tune of Rs. 400/- per month whereas in favour of her minor girl in tune of Rs. 700/- per month and has simultaneously dismissed the suit regarding to restitution of conjugal rights filed by the appellant.

The precise facts forming the background of the instant appeal are that Respondent No. 1 averred in suit for dissolution of marriage that the appellant married Respondent No. 1 on 22.10.2003. According to the Respondent No. 1, she lived with the appellant about 1 year and 3 months happily. Thereafter, appellant did not behave with her properly and he snatched away the jewelry given to her at the time of marriage. He often uses to beat and abuse her. She further averred that appellant is a cruel person and on account of her cruel and improper behavior she has developed hatred against him; therefore, the spouses cannot live together within the limits ordained by the Almighty God. The Respondent No. 1 also filed a separate suit for recovery of her dower amounting Rs. 150,000/-, a suit for recovery of maintenance allowance at the rate of Rs. 3000/- per month total Rs. 54000/- in the light of agreement dated 14.05.2003 alongwith Rs. 1500/- per month total Rs. 18,000/- for her minor girl. She further filed another suit for recovery of her dowry worth Rs. 150,000/-, which according to her, is in possession of appellant.

On the other hand, appellant presented a suit for restitution of conjugal rights and submitted that the spouses were living happily but on intervention of her brother and other persons she did not come back to populate with him. In written statements, the parties refuted the allegations of each other leveled in the plaints. The learned Judge Family Court consolidated all the five suits and framed the following issues in light of the pleadings of the parties, vide order dated 27.11.2006:--

Issue No.1. Whether the plaintiff is entitled to a decree for dissolution of marriage, if yes then how? (OPP)

Issue No.2. In case Issue No.1 is not proved whether the defendant is entitled to a decree for restitution of conjugal rights in counter suit, if yes then how? (OPP)

Issue No.3. Whether the plaintiff is entitled to a decree of dower amounting Rs. one lac from defendant, if yes then how? (OPP)

Issue No. 4.      Whether the plaintiff and her minor girl are entitled to maintenance allowance, if yes then how and to which extent? (OPP)

Issue No.5. Whether the plaintiff is entitled to a decree for dowry worth Rs. 150,000/- against defendant, if yes then how? (OPP)

Issue No.6. Relief.

In support of her case the respondent entered into witness box and produced Abdul Rasheed, Fazal-ur-Rehman, Muhammad Aziz and Muhammad Khurshid as her witnesses. On the other hand, appellant also appeared in the witness box and produced Muhammad Ashraf, Raja Muhammad Arshad, Muhammad Yaseen, Muhammad Farid, Muhammad Akram, Gulzar and Muhammad Sabeel as his witnesses. After completion of the proceedings, the learned Judge Family Court decreed all the four suits and dismissed the suit filed by the appellant vide his decision and decrees dated 21.8.2007, mentioned above. The aforementioned decision and decrees have been assailed through the instant appeal.

Syed Mushtaq Hussain Gillani, the learned counsel appearing on behalf of the appellant, vigorously argued that according to the respondent, she left the house of the appellant on 18.01.2005, i.e. after one year and three months of marriage, therefore, she is not entitled to a decree for dissolution of marriage on the grounds of non-payment of maintenance or non-performance of marital obligations. According to the learned counsel, the appellant has failed to prove the grounds of cruelty, therefore, the decree on the basis of Khula has been passed contrary to the principles laid down by the superior Courts. The learned counsel pointed out that right of Khula by wife is not an absolute right, thus, cannot be exercised in favour of a woman on mere statement of wife. The learned counsel further maintained that the evidence on record is not sufficient to prove the fact that the parties cannot live together as husband and wife within the limits ordained by the Almighty God. The learned counsel pressed into service the submission that the dowry articles of the respondent has been perished during the earthquake, therefore, cannot be handed-over to the Respondent No. 1. The learned counsel laid great stress upon the point that the Respondent No. 1 cannot claim maintenance as a right, because she has refused to perform conjugal obligations and is living separately without any cogent reason, however, the appellant is prepared to provide maintenance for her minor girl. The learned counsel also contended that the respondents have deposited the Khula amount and have not challenged the impugned decision and decrees. The learned counsel argued that the Court below miserably failed to appreciate the evidence of the parties in its true perspective and passed the impugned decision in contravention with the law, therefore, cannot be sustained. The learned counsel finally submitted that the suits filed by the Respondent No.1 may be dismissed and decree for restitution of conjugal rights be passed in favour of appellant. In support of the arguments, the learned counsel cited the following authorities:--

1.    PLJ 1986 Quetta 159 (DB) ;

2.    PLJ 1989 AJK 1;

3.    1992 CLC 937;

4.    PLD 1995 Lahore 19;

5.    2005 SCR 82;

Muzaffar Hussain Mughal, the learned counsel for the respondents controverted the arguments raised by the learned counsel for the appellant and submitted that the respondents have specifically pleaded the ground of khula in her plaint which is an ample proof that the spouses cannot live a harmonious life. According to the learned counsel, it is quite sufficient to pass decree on the basis of Khula if the wife declares that she hates her husband and cannot live with him within the limits ordained by Almighty Allah because the principle of Khula is based upon Surah-Al-baqrah of the Holy Quran. The learned counsel also argued that the appellant has admitted during his statement that the land given in view of dower is in his possession and he also offered to pay maintenance allowance to his minor girl. The learned counsel pointed out that the appellant has further admitted in para 6 of his written statement in suit for recovery of dowry that all articles of the dowry of the Respondent No.1 are in his possession. Muhammad Arshad, a witness for the appellant has also deposed in his statement that the dowry of the respondent is in possession of the appellant. The learned counsel further submitted that the impugned decision, therefore, needs no interference by this Court.

The arguments were heard pro and contra in detail and the record of the case was carefully perused alongwith the case law cited.

Let me first deal with the point of Khula. A careful perusal of the file reveals that the Respondent No.1 has specifically pleaded the ground of Khula in para 4 of her plaint. She has clearly averred that the appellant is a cruel person who has made her life miserable by cruelty and ill-treatment, therefore, she has developed hatred against him and she cannot live with him within the limits ordained by the Almighty Allah. She further contended that she does not even wants to see his face and she prefers to die instead living with him. All the witnesses for the respondents have supported the allegation of improper behavior of the appellant and separation of the spouses repeatedly. The Respondent No. 1 has categorically stated before the Court below that she has developed severe hatred against the appellant, therefore, cannot live with him within the limits ordained by Almighty God. The contention of learned counsel, that the decree on the basis of Khula cannot be passed in favour of Respondent No. 1, therefore, is repelled as being misconceived and without any substance. The superior Courts have dealt with the point of Khulla in numerous cases and this Court has already discussed in detail about the application of the principle of Khulla in a recent Court case reported as "Syed Abul Qayyum Shah Versus Mst. Tanveer Andleeb and 3 others" (2008 CLC 564), wherein it has been held that Holy Quran is base and origin of legality of Khulla. It is by now the settled principle of law that before invoking the power to annual marriage on ground of khulla, the Court must satisfy its conscious whether the spouses can like a life of love, affection, trust and harmony if not, then it is better to break the hateful union, as in this instant case the wife is so adamant that she expressed her hatred by deposing that she prefers death instead to live with appellant. Islam does not force a woman to live sinful life; therefore, right of Khula has been bestowed upon her by the dictates of Holy Quran (1997 SCR 381). As for as the evidence of the parties is concerned, the witnesses for both the parties are closely related to them however, it is fully established by the close scrutiny of the evidence that despite of best efforts of elderly people, the spouses could not lead a happy  life  and  intense  disliking,  serious  hatred and grave situation of disharmony exists between them which provides firm basis to annul the relationship by granting a decree for dissolution of marriage on the ground of "Khula".

It will not be out of place to point out that a decree, on ground of Khula, can be granted on the satisfaction of the Court that the spouses cannot live together within the limits exercised by the Holy Quran. In this regard the wife is not obliged to prove the fault of the husband rather if it appears from the perusal of the record that the relations of the spouses are strained beyond repair on account of fault of either party whereupon wife has developed severe hatred against her husband, it is always adviseable to dissolve the marriage. My this view finds support from the case reported as "Muhammad Akram versus Mst. Majeed Begum" and "Mst. Majeed Begum versus Muhammad Akram" (PLD 1984 AJK 36).

The contention of the learned counsel for the appellant is devoid of any force that the Respondent No. 1 has failed to prove cruelty and other grounds taken in the plaint, therefore, she is not entitle to a decree on the basis of Khula. It has been observed in a case reported as Mukhdoom Hussain versus Mst. Habib Begum and others (1993 SCR 330), as under:--

"It may be stated, that even if the main issues were decided against the respondent, the Court was competent to order the dissolution of marriage on payment of `Khula', if the circumstances of the case so warranted. No hard and fast rule can be laid down as to when the Court should order the dissolution of marriage on the basis of `Khula'; It depends upon the circumstances of each case".

The perusal of the aforementioned authorities make it crystal clear that if the spouses have developed hatred and disrespect between each other and there is. no ray of hope about their reconciliation then the marriage has to be dissolved on the basis of Khula, which is right of the wife.

The appellant has clearly admitted during his statement that the land given in lieu of dower to the Respondent No.1 is in his possession, therefore, the golden ornaments given to her at the time of marriage are sufficient consideration for grant of Khula, as ordered by the learned Judge Family Court.

So for as the authorities referred to by the learned counsel for the appellant are concerned, are beyond the controversial point, and have noting common with the facts of the present case.

For instance in Lal Muhammad's Case (PLJ 1986 Quetta 159 (DB)), it has been observed that if the wife does not specifically claim the right of Khula, marriage cannot be dissolved on Court's motion.

In Rehmatullah's case (PLJ 1989 AJK 1), the wife did not claim divorce in her plaint on the ground of Khula nor asked it in her statement. No issue was framed by the trial Court but she only refused to live with her husband during the cross-examination, therefore, a decree for dissolution of marriage passed by Court below was set-aside.

In Muhammad Abbasi's case (1992 CLC 937), the learned Judge Family Court did not consider the evidence produced by husband, as well as the evidence of cassette and Photograph, therefore, the decree for dissolution of marriage was set-aside and case was remanded for a fresh decision.

Mst. Shah Begum's case (PLD 1995 Lahore 19) and Zohra Bi's case (2005 SCR 82), do not support the contention of the learned counsel for the appellant rather the case of Respondent No. 1.

The next question, which requires resolution, is recovery of dowry. The appellant has admitted in his written statement that the dowry articles including the golden ornaments worth Rs. 1,50,000/- were given to Respondent No. 1 at the time of marriage ceremony, however, it is averred that some of the articles of dowry were perished during the earthquake and some of them are in his possession. The appellant has also supported his written statement during his examination as witness before the Court below. The witnesses for the appellant has tried to prove the fact that during the earthquake the dowry articles were ruined whereas the witnesses for the respondents have deposed that the dowry articles did not deprave during the earthquake. It is also on the record that after the earthquake the witnesses for the respondents did not visit the house of the appellant whereas it is admitted on the part of the appellant that some of the dowry articles including a big box, four chairs and one sofa set are still in his possession which were not damaged. The appellant has also admitted that at the time of the marriage the dowry articles including golden ornaments worth Rs. 1,50,000/- were given to the Respondent No.1. Therefore, in the light of the evidence of the parties, an admission of the appellant, excluding the price of the golden ornaments and considering the damage during the earthquake, it will be in the interest of justice to fix the price of the dowry Rs. 1001/-, 000/- instead Rs. 150,000/-. In this manner the Court below has failed to evaluate the evidence of the parties in its true perspective. Resultantly, the impugned decision to this extent needs modification.

It is very important to observe that it has been admitted by the appellant that he is capable of providing maintenance allowance to the appellant is prepared to provide alimony to his minor girl only but refuses to pay maintenance allowance to his wife on account of non-existence of conjugal relations. No doubt, if the wife willfully refuses to live with her husband then she is not entitled to receive maintenance from him but when there are sufficient grounds for refusal to live with husband i.e. ill-treatment or non-payment of dower, the wife can claim maintenance without going back to her husband. Coming to the instant case, it has been amply proved on the record that the appellant has not paid the dower, as mentioned above, therefore, the wife is justified to live separately and entitled to claim maintenance.

In this regard I am fortified by a case titled Mst. Rahilan versus Sanaullah (PLD 1959 (W.P.) Lahore 470). The relevant portion of the report is as under:--

"As I have held in the judgment above-mentioned when the wife makes a demand for dower she becomes entitled to live apart from her husband till her dower is paid and the husband becomes bound to pay her maintenance even though she is living apart from him without any other reasonable cause".

The same view was reaffirmed in a case reported as Mst. Muhammadi versus Jameel-ud-Din (PLD 1960 (W-P) Karachi 663), wherein the following principle has been enunciated at page 666:--

"Another ground on which she can refuse to go to her husband' s house is the non-payment of the prompt dower. All the Muslims Jurists are unanimous on the point that the right of maintenance of a wife cannot be defeated if she has demanded her prompt dower and her husband has not paid her".

In the light of above stated position, the learned Judge Family Court was justified to record order of maintenance allowance in favour of Respondent No. 1 and her minor girl.

For what has been stated above, I partly accept the appeal and set-aside the impugned decision and decree to the extent of recovery of dowry Rs. 100,000/- instead of Rs. 150,000/-. Therefore, Respondent No. 1 shall be entitled to receive Rs. 100,000/- as price of dowry. Consequently, the appeal fails to the extent of decision and four other decrees.

The appeal is disposed of in the manner indicated above.

(A.S.)      Appeal disposed of.


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