Detailed judgment: PHC declares forced abortion a strong ground for dissolution of marriage

PESHAWAR: The Peshawar High Court (PHC) has ruled that forced abortion is a strong ground for dissolution of marriage on the basis of cruelty and upheld the judgments of subordinate courts on the issue.

“The respondent woman (Robina Parvez) has proved cruelty, maltreatment by petitioner husband (Aminullah) and at the hands of other housemates of petitioner. So, the trial court has correctly appreciated the evidence and decreed the suit in favour of respondent woman, except medical expenses and then by learned appellate court,” said a detailed judgment of a single bench issued by Justice Muhammad Younas Thaheem.

In the judgment, it was stated that this court had gone through the evidence, but no misreading or non-reading of evidence was found. So, the judgments of both the courts below have been passed with all lawful authority and no injustice has been done to the petitioner (husband), so needs no interference.

The high court also cited and derived wisdom from the judgment of Supreme Court of India in a case titled “Mitthulal and another Vs State of Madhya Pradesh” and from the judgment of Lahore High Court. It declared this court could not decide the instant petition by considering evidence recorded in the criminal case.

The respondent woman was represented by Muhammad Sajid Khan and petitioner husband by Muhammad Ibrahim Khan in the appeal against the sub-ordinate courts decisions.

Aminullah, a resident of Chota Lahor in Swabi district, had challenged the validity and legality of the decisions of the family court, passed on February 28, 2013 and sessions’ court passed on March 5, 2014 through a constitutional petition.

About brief facts of the case, it was stated in the judgment that Robina Parvez had filed a family suit against the petitioner (husband) for dissolution of marriage on the ground of cruelty, especially through forced abortion.

It said that the family court, after a detailed hearing and examination of evidence, decreed the suit in favour of the plaintiff (woman) on the basis of cruelty.

The family court, as per the claim of the plaintiff, directed the defendant husband to give two tolas gold ornaments, Rs20,000, share of defendant husband in the house of his father as dower according to Kabeen Nama and maintenance allowance of Rs5,000 per month for past seven months and 20 days and onwards till her Iddat period.

The court had also ordered recovery of dowry articles as per list or its value Rs2,35,300.

It said that after the failure of pre-trial and post-trial reconciliation between spouses, the trial court framed issues and both the parties produced their respective evidence. However, the trial court rejected the husband’s plea for restitution of conjugal rights.

During arguments in the case, counsel for the petitioner argued that the respondent woman had failed to prove fixation of dower alleged in the plaint, cruelty and forced abortion, as petitioner along with other accused had been acquitted in the case registered against them on March 26, 2011 at the Zaida Police Station under sections 338-A/338-C/342 of Pakistan Penal Code (PPC), so dissolution of marriage on the basis of cruelty, particularly forced abortion, had not been proved.

On the other hand, the counsel for the woman supported the judgment and decree passed by subordinate courts. He added that evidence recorded in the criminal case cannot be referred and relied upon as neither it was produced during recording of evidence, nor was alleged in the written statement.

The bench observed that from the perusal of record, it was admitted position that both parties, previous to marriage were close relatives as their fathers were real brothers.

“The respondent woman appeared in the family court and recorded her statement and narrated the same facts as alleged in the complaint about maltreatment, beating and forced abortion/miscarriage of two months pregnancy by the defendant, her husband, with help of other family members of petitioners by a local Daai [midwife],” the bench stated.