2001 C L C 304
West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage‑‑‑Cruelty as ground for dissolution of marriage‑‑‑Portion of statement of wife regarding her allegations of cruelty against the husband remained unchallenged in cross‑examination‑‑‑Family Court dissolved the marriage on the basis of such allegation‑‑‑Contention by the husband was that if the Family Court was satisfied that the spouses could not live together within the limits prescribed by Allah, then the marriage could have been dissolved on the ground of Khula'‑‑‑Validity‑‑‑Where the wife was not cross‑examined on the point of cruelty, the husband had accepted her such statement‑‑‑Cruelty was one of the grounds recognised by law for dissolving the marriage‑‑‑Family Court had taken into account all the evidence of the parties‑‑‑Judgment and decree of the Family Court did not suffer from any jurisdictional defect or misreading or non‑reading of evidence or any error patent on the face of the record‑‑‑Petition was dismissed in limine.
PLD 1982 Pesh. 42 ref.
Khursheed Khan for Petitioner.
Khalid‑ur‑Rehman Qureshi for Respondents.
Date of hearing: 24th October, 2000.
MUHAMMAD BASHARAT VS MEHAR FAZOON2001 C L C 304[Peshawar]Before Shahzad Akbar Khan and Ijaz‑ul‑Hassan, JJMUHAMMAD BASHARAT‑‑‑PetitionerversusMst. MEHAR FAZOON and another‑‑‑RespondentsWrit Petition No. 168 with Civil Miscellaneous No. 195 of 2000, decided on 24/10/2000.x
JUDGMENT
SHAHZAD AKBAR KHAN, J.‑‑‑ Judgment and decree, dated 26‑4‑2000 for dissolution of marriage, dower and maintenance allowance passed by the learned Judge Family Court in favour of respondent No. l has been called in question by the petitioner through the instant Constitutional petition. The synoptical sketch, of the instant case is that the petitioner and respondent No. l entered into marital bond on 25‑10‑1996 and ' Rukhsati' took place on 6‑12‑1997. It appears that soon after the marriage the inter se relations of the spouses started getting strained and within a span of 2 months the relations became so strained that the respondent‑wife was compelled to leave the house of the petitioner and started living with her parents. The petitioner filed a suit for conjugal rights and the wife filed a couple of rival suits one for the recovery of dower to the tune of Rs.75,000 plus the maintenance allowance at the rate of Rs.1,000 per month from 18‑2‑1998 till the decision of the case and the other dissolution of marriage. All the three suits were consolidated and after a full dressed trial the learned Judge Family Court decreed both the suits of the wife and the suit of the husband was dismissed.
2. The learned counsel, appearing on behalf of the petitioner has submitted that the findings of the learned Trial Court are erroneous being the out come of mis-appreciation and non‑appreciation of evidence culminating into the impugned judgment and decree. He further contended that the respondent wife had not taken any legal ground which could be considered as a justification for dissolving the marriage. His last contention was that if at all the learned trial Judge had formulated an opinion regarding the impossibility of the living together of the spouses within the limits prescribed by Almighty Allah then, at the most, marriage should have been dissolved on the ground of 'Khula' and no decree for the dower amount and maintenance allowance could be passed against the petitioner. He ultimately submitted that the impugned judgment and decree to the extent of dower and maintenance be set aside and the decree qua the dissolution of marriage be maintained.
3. On the contrary the learned counsel appearing for the respondent wife on pre‑admission notice has defended the impugned judgment and decree on almost the similar grounds incorporated into the judgment itself.
4. We have heard the rival arguments of both the combatants and have examined the available record. From the trend of the arguments and the final submissions of the learned counsel for the petitioner it is evident that the petitioner is not, aggrieved by the dissolution of marriage but he was interested only in setting aside the decree regarding the dower and maintenance allowance. The contentions of the learned counsel that the respondent had not alleged any ground which could legally be considered as a ground for the dissolution of marriage is incorrect and it appears that the learned counsel has lost sight of the plaint of the respondent wife and her statement recorded during the trial. A plain view of the plaint of the wife shows that she levelled very serious allegations of cruelty, deception regarding the fakeness/impurity of the ornaments and compelling her towards the immorality of prostitution. Beside this criminal case under section 419/420 P.P.C., has also been registered against the petitioner vide F.I.R. No.85, dated 20‑2‑1998 on the report of the father of the respondent No.l. Regarding all these allegations the respondent appeared in person and recorded her statement in Court. It is noteworthy that the significant portion of the statement of respondent No.l regarding her allegations of cruelty against the petitioner has totally gone unchallenged in cross‑examination. Thus, in principle it can safely be inferred that the petitioner by not cross -examining her on this vital point has accepted her statement. In this regard reliance can be placed on PLD 1982 Pesh. 42.
5. The learned trial Judge had framed a specific issue i.e., Issue No.3 on the point of cruelty and the entire relevant evidence has been discussed in giving the findings on this issue which was decided against the petitioner. Thus, it would go out of the record to say that there was no legal ground for dissolution of marriage except on 'Khula'. Cruelty is one of the ground recognized by law for dissolving the marriage. The impugned judgment eloquently speaks that the learned Judge has taken into account all the evidence of the parties. The petitioner in his statement has himself submitted that the amount of dower was fixed as Rs.75,000.
6. In wake of the above resume we are of the considered view that the judgment and decree of the learned Trial Court does not suffer from any vitiating element of the nature of jurisdictional defect or mis‑reading or non- reading of evidence or any error patent on the face of the record.
Consequently we dismiss this writ petition in limine alongwith C. M. No. 195 of 2000.
Q.M.H./M.A.K./186/PWrit Petition dismissed.
‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage‑‑‑Cruelty as ground for dissolution of marriage‑‑‑Portion of statement of wife regarding her allegations of cruelty against the husband remained unchallenged in cross‑examination‑‑‑Family Court dissolved the marriage on the basis of such allegation‑‑‑Contention by the husband was that if the Family Court was satisfied that the spouses could not live together within the limits prescribed by Allah, then the marriage could have been dissolved on the ground of Khula'‑‑‑Validity‑‑‑Where the wife was not cross‑examined on the point of cruelty, the husband had accepted her such statement‑‑‑Cruelty was one of the grounds recognised by law for dissolving the marriage‑‑‑Family Court had taken into account all the evidence of the parties‑‑‑Judgment and decree of the Family Court did not suffer from any jurisdictional defect or misreading or non‑reading of evidence or any error patent on the face of the record‑‑‑Petition was dismissed in limine.
PLD 1982 Pesh. 42 ref.
Khursheed Khan for Petitioner.
Khalid‑ur‑Rehman Qureshi for Respondents.
Date of hearing: 24th October, 2000.
JUDGMENT
SHAHZAD AKBAR KHAN, J.‑‑‑ Judgment and decree, dated 26‑4‑2000 for dissolution of marriage, dower and maintenance allowance passed by the learned Judge Family Court in favour of respondent No. l has been called in question by the petitioner through the instant Constitutional petition. The synoptical sketch, of the instant case is that the petitioner and respondent No. l entered into marital bond on 25‑10‑1996 and ' Rukhsati' took place on 6‑12‑1997. It appears that soon after the marriage the inter se relations of the spouses started getting strained and within a span of 2 months the relations became so strained that the respondent‑wife was compelled to leave the house of the petitioner and started living with her parents. The petitioner filed a suit for conjugal rights and the wife filed a couple of rival suits one for the recovery of dower to the tune of Rs.75,000 plus the maintenance allowance at the rate of Rs.1,000 per month from 18‑2‑1998 till the decision of the case and the other dissolution of marriage. All the three suits were consolidated and after a full dressed trial the learned Judge Family Court decreed both the suits of the wife and the suit of the husband was dismissed.
2. The learned counsel, appearing on behalf of the petitioner has submitted that the findings of the learned Trial Court are erroneous being the out come of mis-appreciation and non‑appreciation of evidence culminating into the impugned judgment and decree. He further contended that the respondent wife had not taken any legal ground which could be considered as a justification for dissolving the marriage. His last contention was that if at all the learned trial Judge had formulated an opinion regarding the impossibility of the living together of the spouses within the limits prescribed by Almighty Allah then, at the most, marriage should have been dissolved on the ground of 'Khula' and no decree for the dower amount and maintenance allowance could be passed against the petitioner. He ultimately submitted that the impugned judgment and decree to the extent of dower and maintenance be set aside and the decree qua the dissolution of marriage be maintained.
3. On the contrary the learned counsel appearing for the respondent wife on pre‑admission notice has defended the impugned judgment and decree on almost the similar grounds incorporated into the judgment itself.
4. We have heard the rival arguments of both the combatants and have examined the available record. From the trend of the arguments and the final submissions of the learned counsel for the petitioner it is evident that the petitioner is not, aggrieved by the dissolution of marriage but he was interested only in setting aside the decree regarding the dower and maintenance allowance. The contentions of the learned counsel that the respondent had not alleged any ground which could legally be considered as a ground for the dissolution of marriage is incorrect and it appears that the learned counsel has lost sight of the plaint of the respondent wife and her statement recorded during the trial. A plain view of the plaint of the wife shows that she levelled very serious allegations of cruelty, deception regarding the fakeness/impurity of the ornaments and compelling her towards the immorality of prostitution. Beside this criminal case under section 419/420 P.P.C., has also been registered against the petitioner vide F.I.R. No.85, dated 20‑2‑1998 on the report of the father of the respondent No.l. Regarding all these allegations the respondent appeared in person and recorded her statement in Court. It is noteworthy that the significant portion of the statement of respondent No.l regarding her allegations of cruelty against the petitioner has totally gone unchallenged in cross‑examination. Thus, in principle it can safely be inferred that the petitioner by not cross -examining her on this vital point has accepted her statement. In this regard reliance can be placed on PLD 1982 Pesh. 42.
5. The learned trial Judge had framed a specific issue i.e., Issue No.3 on the point of cruelty and the entire relevant evidence has been discussed in giving the findings on this issue which was decided against the petitioner. Thus, it would go out of the record to say that there was no legal ground for dissolution of marriage except on 'Khula'. Cruelty is one of the ground recognized by law for dissolving the marriage. The impugned judgment eloquently speaks that the learned Judge has taken into account all the evidence of the parties. The petitioner in his statement has himself submitted that the amount of dower was fixed as Rs.75,000.
6. In wake of the above resume we are of the considered view that the judgment and decree of the learned Trial Court does not suffer from any vitiating element of the nature of jurisdictional defect or mis‑reading or non- reading of evidence or any error patent on the face of the record.
Consequently we dismiss this writ petition in limine alongwith C. M. No. 195 of 2000.
Q.M.H./M.A.K./186/PWrit Petition dismissed.
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