- Trial Court has rightly decreed suit for recovery of dower-

 PLJ 2021 AJ&K 25

Azad Jammu and Kashmir Interim Constitution, 1974 (VIII of 1974)--

----Art. 42(10)--Suits for dissolution of marriage, recovery of maintenance allowance and recovery of dower--Decreed and dismissed to extent of gold ornaments--Allegation regarding physically and sexually fitness of plaintiff--Application for medical examination of plaintiff by defendant/appellant--Report of medical board--Adoptation of deviated procedure--Entitlement of wife--Deferment of payment of dower--Competency of wife to demand of dower--Binding on husband--Financial position of defendant--Modification in judgment--It is observed here that defendant has given authority to his counsel by way of signing Vakalatnama to prosecute case on his behalf including filing Iqbal dawa(cognovit), compromise and even for taking oath on behalf of defendant/ appellant therefore, proceeding conducted by trial Court are quite in accordance with law, as act of counsel is always considered an act of party--If a party opts to adopt a deviated procedure and an order is passed on basis of such offer, deviated procedure or undertaking, subsequently that party is not allowed to resile from such statement, undertaking etc.--Appellant lambasted and castigated her and made her life miserable and depressed--Trial Court has rightly passed impugned judgment and decree in accordance with law for dissolution of marriage on basis of cruelty and non-maintenance--In present case, to make allegation against a physically and sexually fit woman of being non-productive and that of incomplete woman itself causes a great torture to that woman--Although in her suit, plaintiff claimed that gold ornaments were also snatched during matrimonial life, however, she failed to prove her claim with regard to snatching of same, thus, trial Court has rightly dismissed her suit to this extent--Deferment of payment of dower to a wife with her consent is not prohibited, but if in column of deferred dower a stipulated period is not mentioned for payment of dower, wife is competent to demand dower from her husband, who is bound under law to pay dower to wife whenever it is demanded or in case of divorce dower becomes payable instantly-- Trial Court has rightly decreed suit for recovery of dower--Record shows that, it is proved that appellant is working abroad and it has not been brought on record by defence side that he is not a man of good financial means--Although financial position of defendant is also to be considered but in case in hand it is not established that prayed amount is beyond financial means of appellant/defendant--Lower Court while fixing maintenance allowance has made an error and fixed a very meager amount of Rs. 500/- therefore, maintenance allowance is liable to be enhanced and in my opinion Rs. 3000/-p.m is just, fair and appropriate amount--Appeals disposed of accordingly.                                                                  

                                 [Pp. 29, 30, 31 & 32] A, B, C, D, E, F, G, H, I & J

2014 SCR 718, 2014 SCR 504 and PLJ 2001 Lah. 472 ref.

Sardar Azhar Arif, Advocate for (Saba Sarwar) Appellant/ Respondent.

Sardar Bilal Shakeel, Advocate for (Imran Ashraf) Appellant/ Respondent.

Date of hearing: 24.9.2020.

 PLJ 2021 AJ&K 25
[Shariat Appellate Bench]
Present: Muhammad Sheraz Kiani, J.
Mst. SABA AKHTAR etc.--Appellants
versus
IMRAN ASHREF etc.--Respondents
Family Appeal No. 146 & C.A. No. 150 of 2019, decided on 24.9.2020.

Judgment

The above titled appeals have been addressed against the judgment and decrees passed by Additional District Judge/Judge Family Court, Rawalakot on 11.09.2019, whereby, the learned Court below has decreed the suits filed on behalf of Saba Sarwar.

2. Brief facts forming background of the appeals are that Saba Sarwar, plaintiff /appellant-respondent, herein filed (3) suits; one for dissolution of marriage, second for recovery of maintenance allowance third for recovery of dower amount. It was stated that the marriage of the spouses was solemnized according to Sharia, on 16.04.2016,in lieu of Rs. 2,70,000/- as dower and ornaments of Rs. 70,000/- were given to the plaintiff at the time of Nikah, whereas, the other amount of Rs. 200,000/- was termed as deferred dower. It was claimed that the plaintiff, after her marriage joined her husband and had been performing matrimonial obligations, however, the attitude of the defendant remained harsh and cruel with the plaintiff, few days after marriage. He started to abuse the plaintiff and beaten her and also tortured her mentally and finally, he deserted the plaintiff in August, 2017 while beating her and snatching the ornaments and since then, the plaintiff is residing with her parents, who have to bear her expenses. It is alleged that the defendant did not pay her maintenance during the desertion period because he wanted to contract second marriage, therefore, the defendant and his parents used to torture the. plaintiff, physically and mentally. According to the plaintiff, when, she filed suits for recovery of dower and maintenance, the defendant contracted second marriage and also leveled allegation that the plaintiff is not a fit woman and due to this allegation she also suffered from heavy mental torture, therefore, the decrees for dower, maintenance and dissolution of marriage on the basis of cruelty be passed in favor of the plaintiff, she prayed.

3. The defendant/appellant/respondent, herein, resisted all the three suits by filing written statement, wherein, he refuted the claim of the plaintiff and stated that the deferred dower was also paid to the plaintiff in installments. He alleged that the plaintiff did not perform matrimonial obligations and refused to do so. The defendant claimed that he spent a considerable amount on marriage with her and he wants to rejoin the plaintiff but she does not agree. It is alleged that the plaintiff stated that she is unable to beget child and refused to perform marital obligations, therefore, she did not join the defendant. The defendant claimed that he is ready to get her illness treated, but she has refused to live with the defendant and get her treatment, it is alleged that she is non-productive woman; therefore, a prayer was made for dismissal of the suits.

4. The learned trial Court, in the light of the pleadings of the parties framed issues and directed the parties to lead evidence, however, on the completion of evidence of plaintiff, the learned counsel appearing on behalf of the defendant/appellant, herein, filed an application that the plaintiff be directed to get medically examined herself and if she is declared sexually and physically fit with regard to her reproductive system, the suits filed by her be decreed in her favor. Upon this application, the learned trial Court recorded statements of the parties and referred the matter to the Medical Board, who, submitted its report and declared the plaintiff/appellant, herein as a healthy and fit woman in all respects the Medical board consist of Dr. Muhammad Ashraf (Senior Specialist/President), Dr. Sadia Hanif (Gynecologist/member) and Dr. Tahira Shakar (Gynecologist/member) gave its opinion as under;-

"The above mentioned examination as well as other investigation showed that she is a normal adult female."

Upon this report, the learned trial Court decreed the suit for dissolution of marriage, on account of cruelty, torture and non-maintenance, decreed the suit for maintenance @ Rs. 500/- from August 2017 till decision of the case and maintenance of Iddat period at the same rate. Decreed the suit for recovery of dower amount of
Rs. 2,00,000/-. The plaintiff/appellant, herein, has filed this appeal to the extent of enhancement in the maintenance allowance, whereas, Imran Ashraf, defendant/appellant, herein has sought abrogation and cancellation of all the decrees.

5. Sardar Bilal Shakeel Advocate, the learned counsel for Imran Ashraf, appellant, herein, while reiterating the contents of the appeal, contended that the plaintiff, opted to leave her house, with her free will and consent and she was never beaten or tortured by the defendant, therefore, the decree for dissolution of marriage has wrongly been decreed in favour of plaintiff. The learned counsel maintained that the learned trial Court also failed to consider the fact that the learned counsel for the defendant before the trial Court was not competent to move the application for decision on the basis of medical report of plaintiff. He submitted that the deferred dower was also paid to the plaintiff in installments and nothing is payable by the defendant, however, the learned Court below fell in grave error while granting the decree for recovery of dower. The learned counsel claimed that the defendant is, even now, ready and willing to resettle the plaintiff and maintain her, but, she is not willing to rejoin the defendant, therefore, she was not entitled to any maintenance.

6. On the contrary, Sardar Azhar Arif, Advocate, the learned counsel for Saba Sarwar plaintiff/appellant, herein, refuted the claim of the defendant and contended that the defendant leveled false and serious allegations upon the plaintiff/ appellant including that she is not a healthy and fit woman and she is non-productive, which, stood belied through medical examination. He contended that in this era of inflation and hikes in the prices of the utilities, it is impossible to maintain a person in Rs. 500/- therefore, by accepting the instant appeal, the maintenance allowance for the desertion and iddat period be fixed as Rs. 10,000/- per month.

7. I have heard the learned counsel for the parties, perused the record and considered the controversy, carefully.

8. In the present case, the plaintiff/appellant, Saba Sarwar filed the suit for dissolution of marriage and has taken a stance that after marriage, the defendant/respondent-appellant maltreated her and also leveled allegation that she is not a complete woman and unable to perform matrimonial obligations. The learned counsel for the appellant/defendant, Imran Ashraf argued that the trial Court illegally and wrongly decreed the suit for dissolution of marriage after obtaining medical examination report of the plaintiff without considering the fact that at that time defendant was abroad and he was unaware of the proceedings, therefore, the decree for dissolution of marriage is liable to be set aside on this sole ground. In this regard, it is observed here that defendant has given the authority to his counsel by way of signing the Vakalatnama to prosecute the case on his behalf including filing Iqbal dawa(cognovit), compromise and even for taking oath on behalf of the defendant/appellant therefore, the proceeding conducted by the trial Court are quite in accordance with law, as the act of the counsel is always considered an act of the party. It is further held that if a party opts to adopt a deviated procedure and an order is passed on basis of such offer, deviated procedure or undertaking, subsequently that party is not allowed to resile from such statement, undertaking etc. Furthermore, in her suit, the appellant/plaintiff, Saba Sarwar has also claimed that she has developed severe hatred towards the respondent/defendant due to his act of mental torture, non-payment of maintenance allowance and on the basis of false allegations. In support of her contentions, the plaintiff also appeared before the Court and recorded her statement wherein she affirms the contentions made in the suit. The relevant caption of her statement is usefully reproduced as under:

"اس وجہ سے غیر آباد ہے کہ مدعا علیہ مار پیٹ کرتا تھا اور لڑکیوں سے فون پر باتیں کرتا تھا۔ مدعا علیہ نے تیسری شادی بھی کی ہوئی ہے مدعا علیہ نے مظہرہ کو مارا، بازو توڑا مظہرہ کے سارے کپڑے مظہرہ کی ساس نے آگ لگا کر جلا دئیے۔۔۔ ساس نے کہا کہ اس کو چھوڑ دو اور دوسری شادی کر لو اس کو کون پوچھنے والا ہے۔ مدعا علیہ مظہرہ پر غلط اور بے بنیاد الزام بھی لگانا تھا۔ یہ درست ہے کہ شادی کے بعد دوسرے تیسرے دن ہی مدعا علیہ نے مظہرہ پر الزامات لگانا شروع کر دئیے"

Thus, in this view of the matter after overall analysis of the evidence produced by the parties, it is proved that the appellant lambasted and castigated her and made her life miserable and depressed. In my view if a plaintiff proves any of the grounds incorporated in Section 2 of Dissolution of Muslim Marriage Act, 1939, that is sufficient to dissolve the marriage on the basis of that single ground even (cruelty, non-maintenance for 2 years etc.), therefore, in such circumstances the trial Court has rightly passed the impugned judgment and decree in accordance with law for dissolution of marriage on the basis of cruelty and non-maintenance. It is to be noted here that a wife is entitled to a decree for dissolution of her marriage if the husband treats her with cruelty or makes her life miserable, by cruelty or conduct even if such conduct does not amount to physical ill-treatment a mental/verbal torture is considered as a cruel attitude of the husband. In the present case, to make allegation against a physically and sexually fit woman of being non-productive and that of incomplete woman itself causes a great torture to that woman and in various judgments it has been held that even the mental torture also amounts to cruelty. In the case reported as "Mohammad Sabeel Khan and another vs. Saima Inshad (2014 SCR 718), wherein it was held as under:

"The terms ''cruelty” with reference to matrimonial matters is to be judged within the parameters of statutory provision of Section 2 of the Dissolution of Muslim Marriages Act, 1939, which speaks of different kinds and natures of cruelty. The term ‘cruelty’ is not only confined to physical assault or infliction of physical injuries rather it being a comprehensive terms as elaborated in the statutory provisions which includes all types of cruelty which may be classified as legal, mental and physical."

It is further held in a case reported as 2014 SCR 504 that:

"The cruel attitude is not confined only to the extent of physical violence, it includes the mental torture, hateful attitude of husband or other inmates of the house and also includes other circumstances, in presence of which the wife is forced to abandon the house of her husband.”

8. So far as the case with regard to recovery of dower is concerned, according to Nikah-nama at time of marriage, dower was fixed as Rs. 2,70,000/- out of which Rs. 70,000/- was fixed as prompt dower in shape of gold ornaments paid at the time of Nikah, while the remaining Rs. 200,000/- was fixed as deferred dower and it is also proved from the record that the same remained as outstanding against the appellant. Although in her suit, the plaintiff claimed that the gold ornaments were also snatched during matrimonial life, however, she failed to prove her claim with regard to snatching of the same, thus, the learned trial Court has rightly dismissed her suit to this extent. Furthermore, to the extent of deferred dower, it is worthwhile to mention here that Nikah-nama is a valid public document and it got the presumption of correctness. The deferment of the payment of dower to a wife with her consent is not prohibited, but if in the column of deferred dower a stipulated period is not mentioned for the payment of dower, the wife is competent to demand dower from her husband, who is bound under law to pay dower to the wife whenever it is demanded or in case of divorce dower becomes payable instantly. In this regard reliance can be placed from a case titled "Dr. Sabira Sultana vrs. Maqsood Sulehri" [PLJ 2001 (Lah) 472], wherein it is observed as under:

          "Having heard the learned counsel, I find that notwithstanding the controversy, whether the dower is prompt or deferred, it is established that the dower is an exclusive right of the wife. However, there are no bounds to the quantity or value of the dower, which is left entirely to the will of the husband and wife. The payment of dower should be specified in such a manner so as to remove uncertainty and the payment of dower is not obliged to surrender her person till she receives her dower. However, the position may be changed after the marriage is consummated, but in any case, the dower being the property of the wife, she can insist for its payment and use as per her right and a husband cannot justifiably deprive her while withholding the payment of dower for an indefinite period on the ground that the dower was Muwajjal or deferred. The only difference of Muwajjal and Muajjal i.e deferred and prompt dower is that deferred dower is not payable till the arrival of stipulated period whereas prompt dower is payable immediately on demand and if for the payment of deferred no stipulated time is fixed, it would be treated as prompt, payable on demand. Thus, the only distinction between a prompt and deferred dower is that payment of prompt dower cannot be postponed without the consent of the wife, whereas the payment of deferred dower cannot be demanded before the stipulated period and a woman in such case is not at liberty to refuse the embraces of her husband as she has dropped her right of payment of dower till a specified time and if no specified time is fixed the dower described as deferred shall be prompt in nature to be paid on demand. The deferred dower without specification of period or stipulation, shall be payable at any time and if the same is deferred till a particular date or time, it shall not be payable before that date.”

A contemplate perusal of the above mentioned case law reveals that a husband is bound to pay dower incorporated in "Nikahnama" as deferred dower even on wife's demand if no specific time is fixed and in the case in hand it became payable not only due to the demand of the plaintiff but also on account of dissolution of marriage which is also equal to Talaq in practical sense. Thus, the trial Court has rightly decreed the suit for recovery of dower.

9. So far as the case with regard to the question; whether the maintenance allowance fixed in favour of appellant/plaintiff is sufficient to meet her needs or is fixed while not considering the financial position of the appellant. In this regard the record shows that, it is proved that appellant is working abroad and it has not been brought on record by the defence side that he is not a man of good financial means. Under the provisions of the Family Courts Act, the Court may grant appropriate maintenance allowance according to needs of the claimant and demands of the justice in each case and there is no limit or fixed amount of maintenance. Although financial position of the defendant is also to be considered but in the case in hand it is not established that the prayed amount is beyond the financial means of the appellant/defendant.

10. Under Sharia, appellant being husband is duty bound to maintain his wife in such a manner that she could live in a respectable way. It may be stated that in this age of prices hike, continuous inflation in prices of household items, medical and transportation, clothing expenses etc. and keeping in view the overall circumstances of the case, I am of the view that the learned lower Court while fixing the maintenance allowance has made an error and fixed a very meager amount of Rs. 500/- therefore, the maintenance allowance is liable to be enhanced and in my opinion Rs. 3000/-p.m is just, fair and appropriate amount.

The case law referred to and relied upon by the learned counsel for the appellant are not applicable due to distinguishable facts.

Crux of the above discussion is that, I partly accept Appeal No. 146 by modifying the impugned judgment and decree dated 11.09.2019 to the extent for recovery of maintenance allowance in the terms that appellant/plaintiff is entitled for maintenance allowance of Rs. 3000/-p.m instead of Rs. 500/- p.m from August, 2017 till institution of suit for dissolution of marriage. The other decrees i.e recovery of dower and dissolution of marriage are maintained as passed by the trial Court. Consequently, the appeal filed by the appellant, Imran Ashraf stands dismissed.

With the above modification, the appeals stand disposed of accordingly.

(Y.A.)  Appeals disposed of accordingly