05/10/2025
اگر بیوی نے اپنے دعویٰ برائے تنسیخ نکاح میں شوہر پر ایسے الزامات عائد کیے جو اس کی کردار کشی کے مترادف تھے، تو یہ ہتکِ عزت (Defamation/Libel) کے زمرے میں آتے ہیں۔ چونکہ وہ الزامات سچ ثابت نہ ہو سکے، اس لیے شوہر کو ہتک عزت کا دعویٰ کرنے کا حق تھا۔
ہائی کورٹ کا فیصلہ
تحدید مدت کا اعتراض مسترد کیا گیا کیونکہ مدعا علیہ نے اسے نہ تحریری جواب میں اٹھایا نہ اپیل میں۔
بیوی کی طرف سے عائد کردہ الزامات جھوٹے اور توہین آمیز قرار دیے گئے، اس لیے یہ ہتک عزت کے زمرے میں آئے۔
لیکن 8 لاکھ روپے ہرجانہ بہت زیادہ اور سزا کے مترادف تھا، اس لیے عدالت نے اسے گھٹا کر 1 لاکھ روپے کر دیا۔
باقی 2 لاکھ روپے جو شادی کے اخراجات وغیرہ کی مد میں دیے گئے تھے، وہ ثبوت کی کمی کے باعث منسوخ کر دیے گئے۔
اس طرح مجموعی طور پر ہرجانے کی رقم کو 10 لاکھ سے کم کر کے صرف 1 لاکھ روپے کر دیا گیا۔
شوہر کی اپیل برائے اضافی ہرجانہ خارج کر دی گئی۔
P L D 2006 Lahore 401
Before MianSaqib Nisar and Syed Zahid Hussain, JJ
SHAHIDA PARVEEN---Appellant
Versus
SAMIULLAH MALIK---Respondent
R.F.As. Nos.331 and 334 of 1999, decided on 25thJanuary, 2006.
(a) Limitation Act (IX of 1908)---
----S. 3---Plea of limitation had not been set up asa defence by the defendant, therefore, no issue had been framed andresultantly, the parties had not produced evidence on the point oflimitation---Court, though was duty bound under S.3, Limitation Act, 1908 todismiss the suit, appeal etc, if it was barred by time, even if the defendanthad not taken an objection in this behalf, but at the same time, if thequestion of limitation was dependant upon the proof and determination of factsand the factual foundation had neither been pleaded nor proved by the defence,the Court was not bound to decide the same---Where the defendant not only hadnot set out any ground of limitation as an attack in the written statement, butsuch omission was conspicuous in the memo. of appeal as well, therefore, theplea of limitation was liable to be repelled.
Muhammad Shafi through Legal Representatives v. Abdul Rehman through Legal RepresentativesPLD 2005 Lah. 129; Government of Pakistan v. Muhammad Bashir PLD 2005 Lah. 74 andDr. Q.M. Qarni v. Mir Khalilur Rehmanand 4 others PLD 1975 Kar. 379 ref
(b) Plaint---
----Plaint as a whole is to be taken intoconsideration---Contents of one paragraphof the plaint shall be deemed embodying in the subsequent para of the plaint.
(c) Tort---
----Defamation---Allegation of appellant(wife) in theplaint of dissolution of marriage, amounted to defamation/libel and were madeto deface and ridicule the respondent (husband) and those were not proved to bebased upon the truth---Damages, determination of---Principles---Where theplaintiff (husband) had proved his case of defamation/libel against theappellant (wife), but at the same time, the damages awarded to him were underthe impugned decree were punitive, rather compensatory, High Court in appealreduced the amount of damages in circumstances---Damages for the heads notproved on record were not allowed.
(d) Islamic law---
----Marriage---Marriage bond between two Muslin's isin the nature of a civil contract but at the same time, it shall be a gravemisconception to equate it with the ordinary civil contract---Nature ofcontract of marriage in Islam elucidated---Provisions of Ss.73 and 74 ContractAct, 1872 or general laws, in this behalf shall not be attracted with theconsequences that any expenses incurred by either party in connection with themarriage ceremonies, or the gifts exchanged by the bride and the bride-groom orgiven to them by the relatives of the either side, including the salamis, couldnot be recovered through the process of law in case of dissolution of marriageand it shall not affect the bride's right to seek the return of her dowryarticles and the bridegroom's to recover the Buri articles, a term which waswell understood in Pakistan culture and the marriage rituals---Principles.
Although the marriage bond between the two Muslims isin the nature of a civil contract, but at the same time, it shall be a gravemisconception to equate it with the ordinary contracts of sale purchase, theproperty transactions or for those to provide personal services etc., enteredinto between the parties under the Contract Laws. Rather such a contract hasits genesis in the social norms of the Muslim society and is structured uponthe commands of Allah Almighty and the Sunnah of the Holy Prophet (p.b.u.h.).This contract is blended with the human emotions and the sentiments, such asthe love, affection, likes, dislikes, tolerance, aversions, and theequation/compatibility of two personalities and the minds. Therefore thefailure and the success of a marriage is dependent upon the existence or thelack of the above factors, and it shall be wrong and absolutely inapt toattribute any breach of the contract in a case, where marriage does not workout and either party declines to submit to the other, which may ultimatelyresult into the divorce by the husband, the termination, dissolution ordenunciation of the marriage in any manner permissible under the law.Therefore, as there is no concept of ally breach of marriage contract,obviously the provisions of sections 73 & 74 of the Contract Act, 1872, orthe General Laws in this behalf, shall not be attracted; with the furtherconsequences that any expenses incurred by either party in connection with themarriage ceremonies, or the gifts exchanged by the bride and the bridegroom orgiven to them by the relatives of the either side, including the Salamis,cannot be recovered through the process of law. But this shall not affect thebride's right to seek the return of her dowry articles, and the bridegroom'sright to recover the Buri articles, a term which is well understood in Pakistanculture and the marriage rituals.
Khadim Hussain Qaiser for Appellant.
Sadaqat Mahmood Butt for Respondent.
Date of hearing: 25th January, 2006.
JUDGMENT
MIAN SAQIB NISAR, J.----Both the noted R.F.A.No.331 and R.F.A. No.334 of 1999 have been filed by the parties to thelitigation, against the same judgment and decree of the learned trial Court,therefore, these are being disposed of together.
2. Briefly the facts, of the case are:--
that the appellant in R.F.A. No.331 of 1999, wasmarried to the respondent; Nikah between the parties was performed on 7-2-1997and the Rukhsati took place on 15-2-1997, but the marriage could not beconsummated due to the reason that the same night, the appellant's fatherallegedly fell sick; her near relations came to fetch her from the respondent'shouse on the above pretext and took her back and thereafter, she never returnedto the respondent, rather brought, the suit for the dissolution of hermarriage, on the ground stated therein, primarily on account of Khula. However,in the plaint of this suit, the allegations about the character of therespondent were made; he was imputed of being a professional dancer, whoperforms in the public functions for consideration. To be more precise, he wasalleged to be a. This suit for the dissolution of marriage was contested by therespondent, who took up the defence that the story about the ailment of theappellant's father was false, and was a bluff, concocted by the appellant'srelations with an object to take her back. Be that as it may, the Family Court,on the basis of Khula, passed the decree for the dissolution 'of marriage infavour of the appellant and against the respondent, which has attained finality.
There were some other cases pending inter se theparties, such as for the recovery of dower, dowry etc. when on 6-7-1998 therespondent tiled the present suit for the recovery of an amount of Rs.30,00,000as damages, against the appellant and her father averring therein that in thesuit for the dissolution of marriage, the appellant on the behest of her fatherhas levelled false, unfounded, frivolous and malicious allegations about thecharacter of the respondent/plaintiff, which are defamatory in nature and thus,on the basis of the above, he has been ridiculed and defaced in the eyes of hisfriends, family and the public and, therefore, he sought the decree for thedamages of an amount of Rs.24,00,000 on this account; further damages were alsoclaimed under the various heads, the breakup of all is provided as under:--
3. The appellant contested the matter. She denied ofhaving made any defamatory remarks against the respondent and set out thedefence of truth. Thus, the parties were put to trial and the following issueswere framed:--
(1) Whether the suit of the plaintiff is frivolousand vexatious?
(2) Whether the plaintiff has not come to the Courtwith clean hands? OPD.2.
(3) Whether the plaintiff is estopped by his wordsand conduct to tile the suit? OPD.2.
(4) Whether the plaintiff has got no cause of actionagainst the defendant No.2 to file the suit? OPD.2.
(5) Whether the plaintiff and his parents concealedthe facts and fraudulently got married the plaintiff with the defendant No.2: whereas after the Nikah and Rukhsati theparents of the defendant No.2 came to know that the plaintiff was not a potentman but an eu**ch and a professional dancer, as such, the parents of thedefendant No.2 called back her from the house of the plaintiff to save theirprestige and honour? OPD.2.
(6) Whether the defendant No.2 is entitled for thespecial damages under section 35-A of the C.P.C., if the suit of the plaintiffis dismissed? OPD.2.
(7) Whether the plaintiff's suit is liable to bedismissed under Order VII, Rule 11, C.P.C.'? OPD.2.
(😎 Whether the plaintiff is entitled for the decreeof recovery of Rs.30,00,000 being the damages etc.? OPP.
4. The plaintiff/respondent examined Naseer-ud-DinHamayun as? P.W. who is his first cousin;P.W.2 Muhammad Musa is also the relative of the plaintiff, P. W.3 Afzaal Ahmadis his brother-in-law, whereas the plaintiff Sami Ullah appeared as P.W.4. Nodocumentary evidence has been adduced by the plaintiff/respondent. Contrarily,the appellant examined herself as D.W.1, D.W.2 Abdul Aziz and D.W.3 Shakeel areher brothers, whereas D.W.4 is Tassaduq Hussain. The documentary evidenceproduced by the appellant is, the plaint in the dissolution case filed by her(Exh. D. 1), evidence of Sami Ullah in that suit (Exh.D.2), suit for therecovery of damages of Rs.22,00,000 (Exh.D.3), suit for the recovery of thedowry articles (Exh.D.4), suit for the recovery of dower (Exh.D.5), judgment inthe suit for the dissolution of marriage (Exh.D.6), Marriage Card (Exh.D.7),written statement in the suit for the recovery of dowry articles (Exh.D.😎,written statement in the suit for dower (Exh.D.9), written statement in thedamages suit (Exh.D.10) and written statement in the dissolution suit(Exit.D.11); besides, (Exh.D.12) is the photograph of the respondent and (ExhD. 13) is the Video Cassette, perhaps showing him dancing in some privatefunction.
5. On the conclusion of the trial, the learned CivilJudge by returning his findings on issue No.8 in favour of the respondent, has decreedthe suit to the extent of Rs.10,00,000. Rs.8,00.000 out of which have beengranted in pursuance of the cause of action of the respondent for hislibel/defamation, while Rs.2,00,000 on account of the other heads. Both theparties aggrieved of this judgment and decree dated 29-4-1999, have filed thepresent appeals.
6. The claim of the appellant in R. F.A. No.331 of1999 is that the judgment and decree should be set aside and the suit bedismissed, whereas the plaintiff/respondent in the other case, seeks theenhancement of the damages and his grievance is that the damages under the headNo.VII have been erroneously less allowed, which should be increased.
7. Learned counsel for the appellant has argued thatin the present suit for the recovery of damages,the respondent/plaintiff has only referred to paragraph No.5 of the plaint inthe suit for the dissolution of marriage, to allege a cause of action, bystating therein about the impeachment of his character, which according to him,is defamatory. But, in the relevant para, there is no defamatory material atall, as no reference to any other paragraphs, in which, he is alleged to be a"Naacha/Dancer" has been made, therefore, the averments of any otherpart of the plaint do not constitute the cause of action, with theconsequences, that the decree cannot be awarded to the respondent for what hasnot been pleaded. It is also submitted that suit of the respondent was barredby Article 24 of the Limitation Act, because the suit for the dissolution of marriage,which allegedly contains defamatory material, was filed on 3-3-1997, whereasthe present suit has been instituted on 6-7-1998, which is beyond limitation byabout 4 months. However, when confronted, if the limitation has been a groundof defence in the written statement and any issue was framed by the Court orthe parties have led any evidence on this point, the learned counsel for theappellant, by relying upon the judgments reported as Muhammad Shah throughlegal representatives v. Abdul Rehman through legal representatives PLD 2005Lah. 129 and Government of Pakistan v. Muhammad Bash*t PLD 2005 Lah. 74 hasargued that the proposition of limitation is a pure question of law and undersection 3 of the Limitation Act, it is the duty of the Court to decide it thesuit etc. as been brought within the prescribed period of limitation, even ifthe defence has not been set out. It is further submitted that for the purposeof a cause of action on account of libel/defamation, the malice and mala fideon part of the defendant should be alleged and proved by the plaintiff, but noevidence in this behalf has been produced by the plaintiff/respondent, ratherthe contrary, on the basis of Exh.D.12, the photograph of the plaintiff, whichdepicts his posture as a dancer, and the video cassette Exh. D.13, in which therespondent is dancing, it stands proved, that the assertion of the appellant inher plaint, imputing the respondent being a "dancer", is correct andbased upon truth. It is further submitted that the Court below has illegallyand unlawfully granted an exorbitant amount of damages to the respondent onaccount of alleged defamation/libel, which on the face of the judgment, arepunitive in nature and could not be so granted under the law. Reliance in thisbehalf has been placed upon the judgment reported as Dr. Q.M. Qarni v. KhalilurRehman and 4 others PLD 1975 Karachi 379. It is further stated that in thestatements made by the witnesses of the respondent, none has deposed, if theyhad read the plaint in the suit for the dissolution of marriage filed by theplaintiff, on account of which, the respondent's prestige, reputation andposition in their eyes has been lowered, therefore, it being a case of noevidence, the suit should have been dismissed, rather decreed. Lastly, it isargued that the decree passed by the Court below amounting to Rs.2,00,000 underother heads i.e. Nos. iv, v, vi, is absolutely without any proof on. therecord; the statements of the P. Ws. in this behalf are of the close relativesof the plaintiff, which have no evidentiary value.
8. Heard. First of all,we would like to meet the point oflimitation, raised by the learned counsel for the appellant. In this behalf, itmay be held that the plea of limitation has not been set out as a defence bythe appellant, therefore, no issue has been framed and resultantly, the partieshave not produced evidence on this point. Though, it is the duty of the Courtunder section 3 of the Limitation Act to dismiss the suit, appeal etc. if it isbarred by time, even if the defendant/respondent has not taken an objection inthis behalf, but at the same time, if the question of limitation is dependentupon the proof and determination of facts and the factual foundation hasneither been pleaded or proved by the defence, the Court is not bound to decidethe same. It may further be held that the appellant not only has set out anyground of limitation as an attack in the written statement, but this omissionis conspicuous in the memo. of appeal as well, therefore, the pea is repelled.
9. As regards theargument that there is no defamatory material in that para. of the plaint onaccount of which, the cause of action has been structured by theplaintiff/respondent, suffice it to say that it is the plaint as a whole, whichhas to be taken into consideration; besides, it is incorrect to state that thecharacter of the respondent has not been attacked in para. No.5, because thecontents of the said para. suggest otherwise; moreover, according to the ruleof construction of the legal documents, such as the pleadings the contents ofpara. No.2 shall be deemed embodying in the subsequent para. of the plaint,which reads as:--
Obviously, thereference about the respondent's character in paragraph No.5 relates to thereproduced paragraph; furthermore, while answering the present suit, inparagraph No.5 of the preliminary objections of the written statement, it hasbeen averred by appellant t h a t : -
Viewing the case inits over all context, the above allegations are the continuation of the earlierstance of the appellant, which reflect her aversion and venom towards therespondent; these remarks undoubtedly are beyond the limits of decency, andtantamount to deface, defame and ridicule the respondent by the use ofderogatory and defamatory language; the appellant in reality throughout hasbeen challenging the respondent's manhood, without having the requisiteexperience. Furthermore, there is no proof on the record that the respondent isprofessional dancer; his picture Exh.D.12, which shows him standing at sonicHill Station, in no manner depict of him being the dancer; same is the positionabout the video cassette, in which, the appellant is dancing in a marriagefunction of either the family or a friend, which now-a-days is common, with themales as well. Even otherwise, dancing is no vice of a character, rather it isa feature of art. Therefore, we are of the considered view that the allegationsof the appellant in the plaint for dissolution of marriage, amounts to defamation/libeland were made to deface and ridicule the respondent, and those are not provedto be based upon the truth. However, we agree with the learned counsel for theappellant that the amount of Rs.8,00,000awarded on account of thedefamation/libel are on the higher side and are punitive in nature, therefore,which cannot sustain in the light of the law laid down by the HonourableSupreme Court, in the case of reported as Sufi Muhammad Ishaque v. TheMetropolitan Corporation, Lahore through Mayor PLD 1996 SC 737, which laid downthe rule as under:---
"There can beno yardstick or definite principle for assessing damages in such cases. Thedamages are meant to compensate a party who suffers an injury. It may be bodilyinjury loss of reputation, business and also mental shock and suffering. So farnervous shock is concerned, it depends upon the evidence produced to prove thenature, extent and magnitude of such suffering, but even on that basis usuallyit becomes difficult to assess a fair compensation and in those circumstances,it is the discretion of the Judge, who may, on facts of the case and cconsidering how far the society would deem it to be a fair sum, determines theamount to be awarded to a person who has suffered such a damage. The consciousof the Court should be satisfied that the damages awarded would, if notcompletely, satisfactorily compensate the aggrieved party."
Although, we are ofthe considered view that the respondent has proved his case of defamation/libelagainst the appellant. But at the same time, the damages awarded to him underthe impugned decree are punitive, rather compensatory, therefore, in the lightof the above dictum, we reduce the amount to Rs.1,00,000 (one lac rupees).
10. As far as thedamages under the other heads is concerned, we are of the considered view thatthose have not been proved; all the?witnesses appearing for the respondent, are his very close relatives,whose oral statements, have not been corroborated by any documentary proof orindependent evidence. It is not proved on the record, if in the situation, asreflected in the pleading of the parties, the appellant was wearing anyjewellry, when she hurredily left for the hospital to see her father. The respondenthas also failed to prove the amount of Rs.25,000 allegedly spent on the Baarat,or the other rituals; there is also no proof, if the respondent has booked anyhotel or marriage Hall for his Walema, paid any advance, spent any money forthe food, etc. to be served on the occasion. We also find that the respondenthas not been able to prove his claim about the damages regarding the otherheads.
11. Notwithstandingthe above, although the marriage bond between the two Muslims is in the natureof a civil contract, but at the same time, it shall be a grave misconception toequate it with the ordinary contracts of sale-purchase, the propertytransactions or for those to provide personal services etc., entered intobetween the parties under the Contract Laws. Rather such a contract has itsgenesis in the social norms of the Muslim society and is structured upon thecommands of Allah Almighty and the Sunnah of the Holy Prophet (p.b.u.h.). Thiscontract is blended with the human emotions and the sentiments, such as thelove, affection, likes, dislikes, tolerance, aversions, and the equation/compatibility of two personalities andthe minds. Therefore, the failure and the success of a marriage is dependentupon the existence or the lack of the above factors, and it shall be wrong andabsolutely inapt to attribute any breach of the contract in a case, wheremarriage does not work out and either party declines to submit to the other,which may ultimately result into the divorce by the husband, the termination,dissolution or denunciation of the marriage in any manner permissible under thelaw. Therefore, as there is no concept of any breach of marriage contract,obviously the provisions of sections 73 and 74 of the Contract Act, 1872, orthe General Laws in this behalf, shall not be attracted; with the furtherconsequences that any expenses incurred by either party in connection with themarriage ceremonies, or the gifts exchanged by the bride and the bridegroom orgiven to them by the relatives of the either side, including the Salamis,cannot be recovered through the process of law. But this shall not affect thebride's right to seek the return of her dowry articles, and the bridegroom's right to recover the Buri articles', a termwhich is well-understood in Pakistan culture and the marriage rituals.Therefore, the judgment and decree of the trial Court awarding Rs.2,00,000under heads No. iv, v. and vi of para. No.8 of the plaint, cannot sustain andis hereby set aside.
Whereas in view ofthe above discussion, the judgment and decree of the learned trial Court ismodified in the manner that the amount of Rs.8,00,000 on the basis of thedefamation is set aside to the extent of Rs.7,00,000 and upheld to the tune ofRs.1,00,000; this, we feel shall be adequate compensation to the respondent.
Because of thedecision iii the noted appeal, we are not persuaded in the other appeal filedby the respondent that any enhancement of the damages should be granted.
In the light ofabove, this appeal is party allowed; the judgment and decree to the extent ofRs.9,00,000 is, set aside but upheld to the extent of Rs.1,00,000 whereas theconnected R.F.A. stands dismissed.
Order accordingly.
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