MEHVISH KAZMI vs PARVAIZ HUSSAIN S — 2022 PLD 1 SUPREME-COURT-AZAD-KASHMIR

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MEHVISH KAZMI VS PARVAIZ HUSSAIN S. 2(viii)---Cruelty---Physical and mental cruelty---Non-providing of maintenance to wife---Scope---Cruelty in matrimonial life is considered to be of founded variety, which may be an act violent or non-violent act, gestures or mere silence---Term 'cruelty' with reference to matrimonial matter is to be judged within the parameters of statutory provision of S. 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 term as elaborated in the statutory provision which includes all types of cruelty which may be classified as legal, mental and physical---Non-providing of maintenance is itself a form of cruelty which serves as one of the grounds on which the decree for dissolution of marriage can be passed. Head NotesCase Description Citation Name: 2022 PLD 1 SUPREME-COURT-AZAD-KASHMIRBookmark this Case MEHVISH KAZMI VS PARVAIZ HUSSAIN Dower and maintenance---Marriage in Islam has a contractual nature and dower is the consideration agreed between the parties which the husband has to pay to the wife either promptly or subsequently, in accordance with the terms of the agreement---Maintenance is an obligation, which is one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances. Head NotesCase Description Citation Name: 2022 PLD 1 SUPREME-COURT-AZAD-KASHMIRBookmark this Case MEHVISH KAZMI VS PARVAIZ HUSSAIN S. 2(viii)---Cruelty---Physical and mental cruelty---Proof---Cruelty may be mental or physical---As to prove cruelty, it is not necessary to manifest physical assault/injury---Conduct/behaviour amounting to mental assault has also been treated by the Courts as cruelty---For considering dissolution of marriage at the instance of a spouse who alleges mental cruelty, the result of such mental cruelty must be such that it becomes impossible to continue with the matrimonial relationship, i.e., party wronged cannot be expected to condone such conduct and continue to live together---Degree of tolerance will vary from one couple to another---Court must consider the background, level of education and the status of parties in order to justify whether cruelty alleged is sufficient to dissolve the marriage or not. Head NotesCase Description Citation Name: 2022 PLD 1 SUPREME-COURT-AZAD-KASHMIRBookmark this Case MEHVISH KAZMI VS PARVAIZ HUSSAIN Ss. 2 & 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(viii)---"Dissolution of marriage" and "Khula'"---Scope---Physical and mental cruelty---Proof---Petitioner/wife filed suits for payment of dower; past and future maintenance per month; dissolution of marriage on ground of cruelty, non-performance of marital obligations, non-payment of dower and maintenance and recovery of dowry articles---Respondent/husband filed suit for restitution of conjugal rights---Family Court consolidated all suits and passed judgments/decrees---Dower was decreed; maintenance was settled from date of institution of suit till the completion of iddat period; dissolution of marriage was decreed on basis of cruelty; suit for dowry articles was also decreed and respondent's suit was dismissed---Respondent filed five appeals before Shariat Appellate Bench of High Court which had modified the Family Court's judgment observing that plaintiff/ appellant would receive maintenance for the period of iddat only; that her marriage was dissolved in lieu of consideration of Khula', which had to be returned to the respondent/husband; and respondent was declared entitled to take dowry articles---Appellant contended that she left respondent's home due to his cruel behaviour which remained continued as evident from the FIR lodged by him against appellant for stealing ornaments; that High Court had modified the mode of dissolution of marriage being cruelty and converted the same as dissolved on basis of Khula', which was totally against law/record; that amount of consideration for Khula' had been excluded from decree of dower on basis of the same wrongly converted mode of dissolution; that there was no justification under law that after dissolution of marriage, appellant was not entitled to receive maintenance allowance for the period of Iddat---Validity---Appellant had produced five witnesses and also recorded her statement before Family Court---Respondent by his conduct/behaviour created such circumstances which compelled the appellant to leave the house---Conduct of brother of respondent also amounted to mental cruelty as she herself deposed in her statement that her brother-in-law had attacked her honour and sexually harassed her---Appellant/wife had also lodged the private complaint before the Judicial Magistrate wherein she alleged that her brother-in-law had attacked upon her honour and when she informed her husband/respondent, he, instead of protecting her, favoured his brother---Respondent had also lodged an FIR against the appellant on charges of theft of the gold ornaments given to her as prompt dower---Ornaments which were given to her in lieu of dower, could not be stolen by her---Statements of witnesses showed that the respondent failed to maintain the appellant---Record showed that the respondent failed to provide maintenance allowance to his wife which was one of the grounds taken by the appellant for dissolution of marriage---Evidence proved that she had not been paid maintenance from the last two years---Once it was found that wife was entitled to get the decree on the ground of non-maintenance, the marriage can be dissolved on that ground---Respondent failed to substantiate in the Trial Court that his attitude towards the appellant was not cruel in nature and he performed his legal duty to maintain his wife---Respondent had also failed to bring anything on record that the conduct of the appellant disentitled her for claiming the maintenance---Impugned judgment of the High Court to the extent of dissolution of marriage on basis of Khula' was set-aside, therefore, in the light of decision of the Family Judge, the appellant was entitled to the deferred dower---Appeal was allowed and judgments/decrees of Family Court were restored, in circumstances. 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MEHVISH KAZMI vs PARVAIZ HUSSAIN S — 2022 PLD 1 SUPREME-COURT-AZAD-KASHMIR

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