Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR,

JUDICIAL DEPARTMENT.

Writ Petition No. 1963-P/2013.

Mst. Shahana Bibi…VS…Nadeem Shah and other.

JUDGMENT

Date of hearing……………25.3.2015…………………

Petitioner(s) by………………………………………..

Respondent (s) by…………………………………….

*****

ROOH UL AMIN KHAN, J:- Through the instant

constitutional petition, petitioner has challenged the validity and

legality of impugned judgment dated 15.6.2013, passed by the learned

Additional District Judge-III, Kohat, whereby appeal filed by the

petitioner against the consolidated judgment /decree dated 19.4.2012,

passed by the learned Family Court, Kohat.

2. Brief but relevant facts of the present case are that,

petitioner-wife Mst. Shahana Bibi, instituted two separate suits

bearing No. 72/FC for recovery of dower, maintenance and

dissolution of marriage on the ground of cruelty and maltreatment

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while a second suit bearing No. 90/FC for recovery of dowry articles

as mentioned in the list attached with the suit.

3. Respondent/husband was summoned, who contested the

suits by filing written statements. From the divergent pleadings of the

parties, the learned Judge, Family Court framed issues.

4. On conclusion the learned Judge Family Court, vide the

consolidated judgment dated 19.4.2012 passed a decree as prayed for

in favour of the petitioner. Feeling aggrieved with the same,

respondent/husband filed appeal. The appellate Court vide the

impugned judgment dated 15.6.2013, partially allowed the appeal,

passed a decree for dissolution of marriage on the basis of ‘Khula’

whereby the petitioner /wife has to withdraw from her claim of unpaid

dower 16 tolas of gold ornaments and ½ share of house while

maintenance allowance was fixed as Rs.1500/- per month. Hence this

petition.

5. Learned counsel for petitioner argued that, the impugned

judgment / decree passed by the appellate Court is against law and

facts and is the result of mis-reading and non-reading of evidence on

record; that against the decree of the Family Court, appeal of the

respondent was not competent; that decree for dissolution could not

have been passed on the ground of Khula, rather on cruelty, as there is

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sufficient evidence on record to prove this assertion alone; that during

subsisting of first marriage, the ground of second marriage by the

respondent/husband is alone sufficient ground for dissolution of

marriage on the basis of cruelty but the learned appellante Court has

ingored this aspect of the case thereby cause great miscarriage of

justice.

6. Learned counsel for respondent /husband strongly

opposed the contents raised by learned counsel for petitioner and

supported the impugned judgment passed by the learned appellate

Court termed to be the result of proper appreciation of evidence on

record.

7. The main issue for resolution before this Court is that,

whether the petitioner /wife was entitled for dissolution of her

marriage on the ground of maltreatment and cruelty etc. alongwith

other grounds as prayed for, on the evidence produced before the trial

Court and whether the learned Appellate Court was justified in

dissolving the marriage between the spouses on the basis of Khula. In

the case in hand the wife-respondent claimed dissolution on the

grounds other than that of Khula. The ground of cruelty and beating

had been specifically taken in the plaint by wife/petitioner beside

other prayers.

8. The appellate Court after evaluating the evidence had to

conclude that the wife-respondent was entitled for dissolution of

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marriage on the ground of cruelty. Normally this Court does not

appraise the evidence to come to its own conclusion but after going

through the evidence, we are satisfied that the ground of habitual

cruelty has been established alongwith other claims with regard to

maintenance allowance, dower and dowry articles, by the petitioner

before the learned Judge Family Court. Perusal of impugned judgment

reveals that evidence of all the witnesses produced by the petitioner in

her favour hasn’t been assessed properly by the learned appellate

Court. No doubt, appreciation of evidence is exclusive function of the

trial Court on the factual side but if there is illegality committed then

in writ jurisdiction interference is called for.

9. The petitioner contends that she had filed suit for

dissolution of her marriage on the grounds of cruelty, physical and

mental torture. She also took the ground of second marriage.

10. To prove her claim as taken in the plaint the petitioner,

she has produced and examined Muhammad Asif (PW-2) who was

the marginal witness to the Nikah Ex.PWPW-1/1 took place

between the parties on 30.6.2002 who has categorically stated that

for no reasons the respondent/husband has failed to maintain her

wife/petitioner as his wife, has not provided any maintenance,

beaten her and for the last 2-1/2 years she was constrained to live in
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her parent’s house. Relevant lines from is statement is reproduced

below:

_______________________________________________________

_______________________________________________________

_______________________________________________________

_______________________________________________________

_____________________________________________________

PW-3, Aurangzeb being another marginal witness to the Nikah of

petitioner with respondent, has also reiterated the same story as

narrated by PW-2 his relevant statement is also reproduced below:

_______________________________________________________

______________________________________________________

PW-4 Hazrat Noor, who in his statement in clear words has stated

that to resolve the matter between the parties, he being elder from

the respondent’s side in a jirga convened for the purpose, the

respondent /husband had refused to accept the petitioner as his wife

as he was not ready to take her back to his house his statement to

this extent is reproduced as under:

_______________________________________________________

_______________________________________________________
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Another very important statement is of PW-5 ( Shafi Ullah)

another elder of jirga, had deposed that during amicable settlement

proceedings, not only the respondent refused to maintain the

petitioner but also spell out them from the house and fired too, at

them but they escaped unhurt, he says in his statement as under:

_______________________________________________________

_______________________________________________________

_______________________________________________________

Thus, it is obvious that the petitioner was maltreated cruelly and

respondent didn't have provided any maintenance allowance for the

period as claimed in the plaint by the petitioner which gain

credibility from the evidence as discussed above. Therefore, the

contention of petitioner that she has suffered mental and physical

torture at the hands of respondent stands proved.

11. In the instant case the petitioner/wife has not

asked for dissolution of her marriage on the ground of Khula but on

various grounds i.e. cruelty, nonpayment of maintenance allowance,

expulsion from the house forcibly by the husband etc. and in such

situations she would be entitled for recovery of dower, dowry and

maintenance etc. as were decreed by the trial Court vide the

impugned judgment but, in case of dissolution of marriage solely on

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the ground of ‘Khula’ then situations would be different. Hence,

she is thus found entitled to the decree as prayed for and granted by

the learned Judge Family Court vide impugned judgment dated

19.4.2012, rather her decree for dissolution of marriage on the

ground of Khula as was decreed by the learned appellate Court vide

judgment dated 15.6.2013.

12. For the reasons given hereinabove, the learned appellate

Court had erred in arriving at a wrong conclusion vide the impugned

judgment, which is resultantly set aside and consolidated judgment /

decree dated 19.4.2012 passed by the learned Judge Family Court,

Kohat is restored.

JUDGE

JUDGE

Announced on;
25th of March, 2015.
*Zarshad*