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Regular Second Appeal No. 1911 of 1256, decided on 20th November 1957; from the decree of the Court of M. Jamil Asghar, District Judge, Layallpur, dated the 27th January 1956.
Divorce‑‑Cruelty‑‑Actual habitual cruelty not established‑Decree for dissolution of marriage can be granted, if circumstances show that married life has become intolerable for wife.
Divorce‑-Li'an Retraction-‑ Should be sincere and not with object to defeat suit of wife --False charge of adultery should be result of bona‑fide misapprehension.
It is not the right of the husband at any time to defeat a claim for dissolution based on a false charge of adultery by just saying that he would withdraw the charge. A retrac tion in order that it may be effective has, in the first place, to be sincere. In the second place the husband has no satisfy the Court that he had brought the charge bona fide and not carelessly. A retraction can be of no help to the husband if his sole object is to defeat the suit of the wife. A true and effective retraction takes pace when a husband comes to. Court and says: "I brought this charge because I was misled by certain circumstances. The circumstances were such, that one would reasonable come to the conclusion that my wife was guilty. I have found now that, in fact, she is altogether innocent. I am very sorry. I withdraw the charge. In such a case, the Court allows the retraction because the husband has not behaved in an improper manner at all and it' is simply a case of a bona fide misapprehension.
Ghulam Bhik v. Mst. Hussain Begum P L D 1957 Lah. 998 rel.
Badi‑uz‑Zaman for Appellant.
Muhammad Amin Khan for Respondent.
Date of hearing: 9th May 1957.
--This is an appeal against the decree of the learned District judge, Layallpur, affirming on appeal a decree of Mr. M. I. Sheikh, Civil Judge, IV Class, Layallpur, dissolving the marriage of Abdul Aziz appellant with Mst. Bashiran Bibi respondent.
The parents of Mst. Bashiran Bibi respondent live at Lyallpur. Her case as stated in the plaint is that on the 23rd of April 1951, she was abducted by the defendant‑appellant. who claims to have been engaged to her, and taken to Multan, to which place the appellant belongs. She was there forced to sign certain documents which are claimed by the appellant to be documents relating to her marriage with him. A report of her abduction had been lodged by her father and she was recovered by the police from the possession of the appellant on the 4th of May 1951 when she was handed over to her father. The appellant and his alleged companions were challaned, but were later acquitted by the Criminal Court. The respondent is living with her father. After the acquittal, the appellant filed a suit for restitution of conjugal rights on the 13th of July 1951 in which a decree was passed in his favour on the 26th of May An appeal against this decree was dismissed on the 22nd of December 1952. On the 21st of July 1953, the appellant filed a complaint under section 498, P. P. C. against some persons alleging that they had enticed away the respondent and were committing illicit intercourse with her. This complaint remained pending till the 24th of July 1954 when it was dismissed in default. The present suit was filed on the 7th of July 1954, It was alleged in the plaint that about two months before the institution of the suit the appellant had made a second attempt to forcibly take her away from the house of her father, but that she had raised a hue and cry and a number of people having come to her rescue the attempt was unsuccessful.
The grounds for dissolution relied upon in the plaint are cruelty, failure to provide maintenance, failure to perform marital obligations and the impossibility of the spouses to live as husband and wife any longer. The defendant, while denying that any of these grounds were available to the plaintiff, objected to the jurisdiction of the Court at Layallpur to try the suit and also took the plea of res judicata on account of judgment in the suit for conjugal rights. The following issues were framed:‑
(1) Whether the Civil Court at Lyallpur has jurisdiction to try this suit
(2) Whether the plaintiff has no locus standi to maintain this suit on the principle of res judicata
(3) Whether the defendant has made the life of plaintiff miserable due to cruel treatment
(4) Whether the defendant has falsely charged the plaintiff under section 498, P. P. C. and what is its effect
(5) Whether the defendant has neglected and failed to provide maintenance to the plaintiff for a period of two years
(6) Whether the defendant has without reasonable cause failed to perform marital obligations for a period of 3 years.
(7) Whether the relations of the parties are so strained that it is impossible to live as husband and wife any longer and if so, what is its effect
(8) Relief.
The trial Court held that the Lyallpur Court had juris diction to try the suit. It held too that the plaintiff was not debarred by res judicata from relying upon facts which happened after the 13th of July 1951, the date of the insti tution of the first suit. As regards issue No. 4, the Court held that the defendant having retracted his charge of adultery in his statement as a witness and, therefore, this could not be made a ground of dissolution. Issues Nos. 5 and 6 were decided against the plaintiff on facts, while issue No. 7 was decided against her on the ground that this was not recognised as a ground for dissolution of marriage by Muhammadan Law On issue No. 3, i.e., the one relating to cruelty, the decision was in favour of the plaintiff and on this sole ground the suit was decreed.
On appeal, the learned District judge did not consider it necessary to record a finding on issues Nos. 4. 5, 6 and 7 which had been decided in favour of the defendant by the trial Court. With respect to the finding on issues Nos. 1, 2 and 3, he agreed with the trial Court and dismissed the appeal.
In appeal before me it is urged on behalf of the appellant that the only act of cruelty which has been held to be proved by the learned District judge and even by the trial Court, is the attempt to forcibly carry away the respondent, which was alleged to have been made two months before the filing of this suit. Learned counsel for the appellant does not concede that this attempt at forcible abduction was in fact made. His version of the whole affair is that the plaintiff, who had been betrothed to the defendant, had, of her own accord, gone to the defendant in the year 1951 and had entered into a marriage with him; that the report by the father which led to the challan of the appellant was untrue and that after his acquittal the appellant has bees: making efforts to secure his wife and the wife too in fact wants to go to him, beat the father is opposed to the marriage and it is he who stands like a wall between the spouses. The husband, he says, was forced by these circumstances to file a suit for restitution of conjugal rights. When the suit was ultimately decided in his favour a d still nothing came out of it, he filed, under mistaken advice, the criminal complaint under section 498, P. P. C. The plaintiff was summoned as a witness in that case because the defendant believed that if they had a chance of meeting together she would come to him, but the father obstructed and got filed by her this suit for dissolution of marriage. The story of forcible abduction two months before the marriage is alleged to be a concoction, resorted to because of the lack of any good ground for dissolution of marriage.
I had an intention originally of writing an exhaustive judgment on issue No. 7 and basing my conclusion on the principle that, although actual habitual cruelty be not established, a decree for dissolution can be granted when A considering the circumstances it would be cruel to the wife to continue the marriage. I have ultimately given up the idea, however, because I feel I would have to rely for my conclusions in part on what had taken place before the 13th of July 1951, the date of the institution of the suit for restitution of conjugal rights, and such course may be open to objection on the ground of res judicata. I have decided therefore, to determine this appeal on the simple and clear ground that the husband had charged his wife with adultery.
The charge was admittedly unfounded. In the witness- box, the defendant has stated that he never brought any charge of adultery against the plaintiff. When questioned as to his previous statements (wherein he had charged her with adultery) he said he did not remember whether he had made such statements. When confronted with the complaint tinder section 498,. P. P. C., which is signed by him, he said the words relating to the commission of adultery may have been put in the complaint by his counsel. The trial Court decided issue No. 4 against the plaintiff on the ground that the defendant had retracted the charge of adultery in the witness‑box. The Civil judge has not appreciated what kind of retraction can avail the husband in such a case. It is not the right of the husband at any time to defeat a claim for dissolution based on a false charge of adultery by just saying that he would withdraw the charge. A retraction, in order that it may be effective, has, in the first place, to be sincere. In the second place, the husband has to satisfy the Court that he had brought the charge bona fide and not carelessly. A retraction can be of no help to the husband if his sole object is to defeat the suit of the wife. A true and effective retraction takes place when a husband comes to Court and says: "I brought this charge because I was misled by certain circumstances. The circumstances were such that one would reasonably come to the conclusion that my wife was guilty. I have found now that, in fact she is altogether innocent. I am very sorry. I withdraw the charge." In such a case, the Court allows the retraction because the‑husband has not behaved in an improper manner at all and it is simply a case of a bona‑fide misapprehension. I, have already dealt with the requisites of a valid retraction in Ghulam Bhik v. Mst. Hussain Begum (P L D 1957 Lah. 998) and need say no more.
In the case before me the charge was as already stated, admittedly without foundation. The defendant now denies having brought this charge, but such denial is hardly of any avail. It is obvious that he brought this charge to bring pressure to bear on the plaintiff and her parents. It is not of such a false charge that retraction can be allowed.
Nor is his retraction a proper one. He retracted the charge for the first time in the witness‑box. Even then although he bad clearly retracted the charge, when questioned as to whether the persons named in the complaint under section 498, P. P. C., were committing adultery with the plaintiff he said, he did not know. There can be no doubt that this retraction is wholly ineffective.
As a result, I maintain the decree of dissolution of marriage on the ground that the defendant brought an un founded charge of adultery against his wife. This appeal is dismissed with costs.
K. M. A. Appeal dismissed.
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