The family court, after recording of evidence and hearing both sides, had dissolved the marriage due to cruelty on a suit moved by Tayyeba Ambareen against her husband Shafqat Ali Kiyani, demanding dower amount, dowry articles, medical expenses and maintenance for herself and their daughter. The appellate court overturned the decree on 10 November 2015 and converted it into khula, with the direction to the woman to refund five tola's of gold to her husband. The high court also upheld the appellate court decision.
Headed by Justice Sardar Tariq Masood, a three-judge Supreme Court bench then took up an appeal against the PHC verdict.
In its decision, the apex court observed that husband’s claim of conjugal rights — despite his "ruthless, tyrannical and oppressive" conduct or behaviour — seemed to be motivated by the sole intention to avoid paying maintenance allowance and the dower amount. The husband utimately succeeded in his effort when the appellate court dissolved the marriage by way of khula, with the direction to the wife to refund the dower amount.
Justice Mohammad Ali Mazhar, a member of the SC bench, wrote in the judgment that he observed the main disagreement or source of discord between the parties was whether petitioner Tayyeba Ambareen was entitled to claim a decree for dissolution of marriage on the ground of cruelty, and whether the appellate forum rightly converted the dissolution of marriage on grounds of cruelty to dissolution by way of khula.
The apex court noted that the family court unequivocally articulated the petitioner discharged the burden of proving cruelty on part of the husband by quoting many incidents, while her evidence was not disproven during her cross-examination. Therefore the family court rightly dissolved the marriage on account of cruelty after a thorough examination and consideration of evidence.
Justice Mazhar observed that the appellate court could modify or set aside the judgment of the family court if it was found contrary to the evidence, since the purpose of appellate jurisdiction was to reappraise whether the lower court committed any error. Likewise, he noted, the high court affirmed the findings of the appellate court, without realizing that the allegations of maltreatment and cruelty had been satisfactorily proved by the petitioner during the trial.
Justice Mazhar recalled how the family court decision depicted different acts which caused mental anguish and torture to the wife: only a week after their marriage, the husband started pressurising his wife to arrange money to get a house on rent. The husband and his family members also levelled false accusations at her, alleging that his daughter was not their child, with the result that the petitioner suffered severe mental agony.
While she was pregnant, the husband left the petitioner instead of supporting her, the court observed. He did not turn up at the crucial time; neither did he pay any maintenance allowance nor delivery expenses, the court recalled.
The apex court noted that the appellate court, without fully considering the evidence, reached a conclusion that no solid piece of evidence was brought to show physical torture or mental agony, and held the allegation was exaggerated, adding that the “acts of cruelty were common” and were “found in every family”.
On the basis of these observations, the Supreme Court set aside the judgments of the high court and the appellate court, and restored the decree passed by the family court.