Parties are bound to follow marriage contract

PLJ 2014 SC (AJ&K) 102
[Appellate Jurisdiction]

Present: Ch. Muhammad Ibrahim Zia & Sardar Muhammad Sadiq Khan, JJ.

ABDUL HAFEEZ--Appellant

versus

SHAMAILA BIBI & 2 others--Respondents

Civil Appeal No. 69 of 2012, decided on 24.1.2013.

(On appeal from the judgment of the Shariat Court dated 12.4.2012 in Family Appeal No. 22 of 2010).

Dissolution of Marriage--

----Decree for dissolution of marriage on basis of cruelty, leveling false allegations of bad character, non-payment of maintenance and non-payment of dower--Factor of cruelty was not proved--Validity--For proof of cruelty, infliction of injury is not requirement of law, in matrimonial matters, Courts had always even throated false allegation against wife as cruelty which result into mental torture and loss of mutual confidence.      [P. 106] A

Dower--

----Amount of dower was paid at time of Nikah while remaining amount worth was kept deffered--According to contract of marriage, appellant had to transfer a house comprising of two rooms in name of plaintiff in lieu of deferred dower amount--Appellant had failed to rebut claim of respondent, therefore, plaintiff was entitled to recover deferred amount of dower.        [P. 107] B & C

Dowery--

----Decree of dowry amount--When wife left house of her husband, gold ornaments were snatched but she had failed to prove--Held: Ornaments were in custody of plaintiff, hence she cannot claim recovery from appellant--Shariat Court while granted decree had not acted against law--At time of marriage a list was provided for dowry items--Plaintiff had proved that dowry items were still laying with husband and fact had been proved by herself as well as statements of witnesses produced by plaintiff in Court--Trial Court as well as Shariat Court while passing decree for recovery of dowry had appreciated and concluded matter in its true perspective.  [P. 107] D & E

Sh. Abdul Aziz, Advocate for Appellant.

Ch. Muhammad Manzoor, Advocate for Respondents.

Date of hearing: 9.1.2013.

Judgment

Sardar Muhammad Sadiq Khan, J--The captioned appeal, with the leave of the Court, has been addressed against the judgment and decree of the Shariat Court dated 12.4.2012, whereby the learned Shariat Court accepted the appeal filed by the appellant, herein partly, modified the judgment and decree of Judge Family Court,Muzaffarabad dated 15.5.2010 and granted a decree for dissolution of marriage on the ground of cruelty and non-payment of dower amounting to
Rs. 1,37,000/-. However, the decree of trial Court for recovery of dower amounting to Rs. 70,300/- is maintained. The appeal one; filed by Abdul Hafeez to the extent of restitution of conjugal rights and the appeal filed by respondent, herein, for recovery of maintenance is dismissed.

2.  The summary of facts necessary for disposal of this appeal is that Respondent No. 1, Shamaila Bibi, filed four separate suits; one for recovery of dower, the second for recovery of maintenance allowance, the third for recovery of dowry and fourth one for dissolution of marriage in the Family Court, Muzaffarabad. It is averred that she was married to the appellant in lieu of dower worth Rs. 2,50,000/-, out of which ornaments worth Rs. 1,30,000/- were given to her at the time of Nikah. A house consisting of two rooms was promised to be transferred in her name for remaining dower amount, but the appellant snatched away the ornaments after physical torture and ill-treatment and ousted her from his house. He leveled false allegations of bad character and started to abuse her. He did not provide any maintenance to her and her minor son and also did not pay the expenses of delivery. It is further alleged that she is living with her parents since Dec. 2008 but the appellant didn't return her dowry, therefore, a decree for dissolution of marriage on the basis of cruelty, leveling false allegations of bad character, non-payment of maintenance and non-payment of dower may be passed against him and he may also be ordered to pay expenses for delivery and maintenance allowance to her and her minor son.

3.  The appellant refuted the claims of the plaintiff-respondent by filing written statement. The main objection raised by the appellant is that on demand of loan by his father from the father of Mst. Shamaila, plaintiff-respondent, she was compelled by her parents to leave him and despite counseling by the elite of the family, she did not come back. He has also been paying the expenses of delivery and maintenance.

4.  The appellant, herein also filed a suit for restitution of conjugal rights against Respondent No. 1, wherein it is averred that when his father, Abdul Hameed demanded Rs.2,00,000/- the borrowed money from the father of Respondent No. 1, the plaintiff-respondent forthwith left the house of her husband. It is further averred that despite his best efforts her parents didn't send her back, therefore, a decree for restitution of conjugal rights be passed in his favour. Respondent No. 1, Mst. Shamila Bibi, by filing written statement refuted the allegations and stated that she was ousted from the house by the appellant after ill-treatment. The learned Judge, Family Court consolidated all the suits, framed issues and after necessary proceedings, passed a decree for dissolution of marriage along with decree for recovery of dower amounting to Rs.2,50,000/- and also a decree for recovery of dowry worth Rs.70,300/- in favour of Respondent No. 1, whereas the suit filed by Respondent No. 1 to the extent of maintenance allowance was dismissed and the suit filed by the appellant for restitution of conjugal rights was also dismissed vide judgment and decree dated 15.5.2010.

5.  Feeling aggrieved from the judgment of the Judge Family Court, Muzaffarabad, both the appellant and Respondent No. 1 filed separate appeals before the learned ShariatCourt. A learned Judge in the Shariat Court, after hearing the counsel for the parties vide impugned judgment dated 12.4.2012 disposed of the appeals in the manner indicated in aforementioned para 1, hence the instant appeal with leave of the Court against the impugned judgment and decree of the Shariat Court.

6.  Sh. Abdul Aziz, the learned counsel for the appellant, strongly opposed the judgment of the Shariat Court. He contended that neither a single word with reference to cruelty alleged by the respondent against the appellant has been uttered by any one of the witnesses nor anything to prove cruelty has been brought on record before the trial Court but despite this both the Courts below have granted the decrees in favour of respondents which amounts to non-reading and mis-reading of evidence. He further argued that Respondent No. 1, on the one hand alleged that she was beaten and forced to leave the house of her husband, whereas on the other hand, she stated in the evidence that she was in the school and from school she went to her parents' house without informing the other family members. Such a contradiction itself negates the version of plaintiff-respondent. He next argued that if Respondent No. 1 doesn't want to continue the marriage she may get the decree for dissolution of marriage on the basis of Khulla. In the pleadings, she has categorically alleged that she cannot live in the limits ordained by Allah and she hates her husband, therefore, on this ground she may get decree on the basis of Khulla but she is not entitled to get the decree on the basis of cruelty because she couldn't prove cruelty, even none of the appeared witnesses has supported her version. It is further argued that regarding the amount of recovery of the loan borrowed by the father of Respondent No. 1, a `Jirga' was held at the Shrine of Sahaili Sarkarin which the father of Respondent No. 1 offered that he will put the money on Holy Quran and if Abdul Hameed accepts the offer, he shall pay the same but on the certain date he didn't appear. On the same date i.e. on 20.4.2009 another `Jirga' was convened in which Respondent No. 1 categorically refused to live with her husband. She showed hatred towards the husband, which reflects her pre-planned decision to leave her husband and ultimately she left her husband's house and went to the parents on her own choice. He further argued that the Shariat Court as well as the trial Court have granted the decree of dowry to the tune of Rs. 70,300/- which has not been proved by any documentary as well as the oral evidence, therefore, the judgment of both the Courts below are liable to be set aside being contrary to record and law. He lastly prayed that while setting aside the decrees for dissolution of marriage, decree for recovery of dowry and decree for recovery of dower passed by the Shariat Court, a decree for restitution of conjugal rights may be granted in favour of the appellant.

7.  Conversely, Ch. Muhammad Manzoor, Advocate, the learned counsel for the respondents, forcefully defended the impugned judgment and vehemently argued that Respondent No. 1 has categorically mentioned in her plaint that the appellant neither paid dower nor provided maintenance, but the aforesaid averment was not specifically denied in the written statement filed by the appellant and as such this fact has been admitted by the appellant and now he cannot refute the same at this stage. He further argued that the appellant has contracted second marriage. The statements of the witnesses produced by Respondent No. 1 reveal that there is no hope for reconciliation between the spouses and Respondent No. 1 doesn't want to live with the appellant at any cost in the presence of second wife. He next argued that the ground for dissolution of marriage on the basis of cruelty has been proved by Respondent No. 1 through the evidence adduced by her. He further argued that it is not incumbent upon a wife to prove an infliction of injury for showing physical ill-treatment rather if a wife proved that her husband made her life miserable, cruel by his conduct, is a sufficient proof. In such type of case leveling of false allegation of bad character also comes in the purview of cruelty because it results into mental torture and agony, therefore, in such state of affairs, it will be in the interest of justice to dissolve the marriage on the ground of cruelty. In support of his argument, he referred to a case titled Syed Imtiaz Hussain Shah and another vs. Mst. Razia Begum and 3 others [2011, SCR 233]. Regarding the decree of dowry to the extent of Rs.70,300/-, the learned counsel argued that the said amount has been proved through documentary evidence, therefore, the Courts below have rightly granted the decree of dowry. It is further argued on behalf of the respondents that the appellant has not produce even a single witness in the Family Court to negate the version of Respondent No. 1. Neither, he himself recorded with regard to the payment of dower in his plaint nor specifically denied the fact of non-payment of dower in the written statement filed by him in the counter suit. Even the witnesses of Respondent No. 1 have also not been cross-examined on this point. If the statement of a witness is not challenged in cross-examination, the same is considered to have been admitted by the opposite side as is held in a case titled Abdul Latif vs. Safarish Ali Khan [2002 SCR 288]. He lastly argued that as the appellant has failed to point out any illegality in the impugned judgment, therefore, the same may be dismissed.

8.  We have given our utmost thought to the respective arguments advanced at bar by the learned counsel for the parties and also gone through the record made available. Although the re-appreciation of evidence is not the function of this Court, however, for our own satisfaction, we have perused the record minutely. The argument advanced by the counsel for the appellant that factor of cruelty is not proved by the plaintiff-respondent as she herself or any other witness appeared before the Court has not stated that any sign of injury caused by the appellant on the person of plaintiff-respondent has been witnessed. It may be observed that such an argument itself is indicative of the cruel mentality on the part of the appellant. For proof of cruelty, infliction of injury is not the requirement of law, in matrimonial matters the Courts have always even treated the false allegation against wife as cruelty which result into mental torture and the loss of mutual confidence. The plaintiff-respondent in support of the alleged cruelty has produced the witnesses which deposed that the appellant has been treating the plaintiff-respondent in an ill manner. Moreover, as it is alleged by the plaintiff-respondent that the appellant-husband has leveled false allegation of bad character to the wife. We, therefore, concurred with the judgments of the Courts below that the fact of cruelty has been proved and nothing against it has been brought by the appellant on the record.

9.  So far as the argument of the learned counsel for the appellant with regard to the decree for recovery of dower amount is concerned, we have perused the pleadings as well as the evidence brought on record by the parties. The marriage between the spouses was solemnized in lieu of dower amounting to Rs. 2,50,000/-. As is evident from theNikah Nama that an amount of dower in shape of ornaments worth Rs. 1,13,000/- was paid at the time of Nikah Nama while the remaining amount worth Rs. 1,37000/- was kept deferred. According to contract of marriage, the appellant had to transfer a house comprising of two rooms in the name of plaintiff-respondent in lieu of deferred dower amount. The plaintiff-respondent categorically alleged in her plaint that the appellant has not transferred the house after marriage in the name of plaintiff-respondent in lieu of the remaining dower amount worth Rs. 1,37,000/-. In support of her claim she has produced the witnesses who categorically support the claim of the plaintiff-respondent. The appellant failed to rebut the claim of plaintiff-respondent, therefore, the plaintiff-respondent was entitled to recover the deferred amount of dower amounting to Rs. 1,37,000/-. It was also alleged by the plaintiff-respondent that when she left the house of her husband, the gold ornaments were snatched by the father of the appellant but she failed to prove this allegation through cogent and reliable evidence, therefore, the Shariat Court was justified to hold that the ornaments amounting to Rs. 1,13,000/- were in the custody of the plaintiff-respondent, hence she cannot claim the recovery of the same from the appellant. The learned Shariat Court while granted the decree has not acted against law.

10.  So far the decree of dowry amounting to Rs. 70,300/- is concerned, we have perused the record minutely. The plaintiff-respondent along with the plaint has produced a list of articles given at the time of marriage to her. It is also evident from the Nikah Nama that at the time of marriage a list was provided bearing serial number 1 to 36 for the dowry items and an amount of Rs. 70,300/- is mentioned therein. The plaintiff-respondent has proved that the dowry items are still laying with the appellant and this fact has been proved by herself in her own statement as well as the statements of the witnesses produced by the plaintiff-respondent in the Court. Therefore, we are of the view that the trial Court as well as the Shariat Court while passing the decree for recovery of dowry have appreciated and concluded the matter in its true perspective.

The appellant has failed to substantiate his case to interfere with the findings recorded by the Shariat Court, hence the same is upheld in its tune and spirit. Thus, finding no force in this appeal, the same is hereby dismissed with no order as to the costs.

(R.A.)  Appeal dismissed