PLJ 2013 Peshawar 152 (DB)
Present: Mian Fasih-ul-Mulk and Rooh-ul-Amin, JJ.
Mst. SHAMIM
AKHTAR--Petitioner
versus
ABDUR RAFIQ and
2 others--Respondents
W.P. No. 1070 of
2011, decided on 16.10.2012.
Constitution of Pakistan,
1973--
----Art.
199--Constitutional Petition--Non-performance of marital obligation being on
her part--She was not entitled to maintenance allowance--Khula--Allegation
that husband was used to keep friendship with girls on phone and could not
establish--Validity--When neither husband was an impotent man nor was cruel to
wife and according to wife she was not ready to live with husband within limits
of God because of developing extreme hatred against him, there was no other
option for trial Court but to dissolve her marriage on basis of khula. [P. 54] A
Constitution of Pakistan,
1973--
----Art.
199--Constitutional Petition--Wife herself conceded that she had taken away
gold ornament earlier given to her by husband at time of Rukhsati--Validity--If
husband is not at fault but wife for some reason or another wishes to end the
marriage, then it is permissible for husband to demand and receive financial
payment hence, it would be superior for him not to take more than actual
stipulated dowry--Husband to recover dower which was admittedly given to wife
at time of rukhsati and which she had taken with her
at time of leaving house of husband. [P.
155] B
West
Pakistan
Family Court, 1964--
----S.
10--Mandated Court to reconcile parties--Where that was not forthcoming in a
case seeking divorce through khula, a decree
dissolving marriage is to be passed forthwith and at same time dower amount is
to be restored to husband. [P.
155] C
Mr. M. Yasir Khattak, Advocate for Petitioner.
Malik Haroon Iqbal, Advocate for
Respondents.
Date of hearing:
16.10.2012.
Judgment
Mian Fasih-ul-Mulk, J.--This writ petition was admitted to
regular hearing on 30.09.2011 to consider the question as to whether petitioner
was entitled to retain 05 tolas gold ornament as
dower when her marriage was dissolved with respondent/husband on the basis of Khula and the appellate Court while partially accepting the
appeal of respondent/husband ordered its recovery from petitioner. Similarly,
respondent/husband has also filed W.P. No. 2788/2011 against the impugned
judgments of the Court below and vide order dated 22.11.2011, it was directed
that this petition be clubbed with the writ petition filed by petitioner/wife.
As in both the writ petitions, similar judgments of the Courts below are
challenged, therefore, we propose to dispose of the same through this common
judgment in W.P.No. 1070/2011.
2. The marriage of petitioner took place with
respondent on 18.11.2008 but just after few months, petitioner brought a suit
for dissolution of marriage, recovery of dower, dowry articles and maintenance
allowance. The respondent contested the suit by filing written statement,
issues were framed and evidence of parties was recorded. The trial Court vide
judgment dated 14.07.2010 dissolved the marriage of petitioner on the basis of Khula as she had failed to prove cruelty on part of
respondent/husband. The prayer for return of dowry articles was also decreed
but prayer for maintenance allowance was rejected. The petitioner in her
statement had accepted that 05 tola gold ornaments
was given to her at the time of rukhsati but as
respondent had not made a demand for recovery of Badl-e-Khula, therefore, the trial Court did not hold the
respondent entitled to its return from petitioner.
3. Both the parties preferred appeals against
the judgment of trial Court. The appellate Court held the respondent/husband
entitled to return of 05 tolas gold ornament when
marriage of petitioner was dissolved by trial Court on the basis of Khula and decree of trial Court was amended to such extent.
The prayer of respondent in his appeal that dowry articles were taken back by
petitioner was repelled and his appeal was dismissed.
4. Petitioner has now filed instant writ
petition for setting aside the impugned judgments and decrees of the two Courts
below with a prayer that her entire suit be decreed.
5. We have heard learned counsel for the patties
and have also perused the record.
6. Petitioner in her statement has admitted that
marriage between the parties was never consummated. However, she failed to
prove that respondent was impotent; hence non-performance of marital
obligations being on her part, she was not entitled to maintenance allowance
and rightly so. Similarly, she has also failed to establish cruelty of
respondent/husband because the two witnesses produced by her stated that this
fact was disclosed to them by petitioner. The petitioner's allegation against
respondent was that he used to keep friendship with girls on phone but could
not establish the same. In view of the above when neither respondent/husband
was an impotent man nor was cruel to petitioner and according to petitioner she
was not ready to live with respondent within the limits of God because of
developing extreme hatred against him, there was no other option for the trial
Court but to dissolve her marriage on the basis of Khula.
The learned counsel for respondent/husband has relied upon the judgment of
Quetta High Court reported as PLD 1986 Quetta
185 wherein it was held that when plea of khula is
not specifically taken in the plaint, khula decree
could not be allowed merely on Courts' motion. According to the learned
counsel, in this case too no specific plea of Khula
was taken; hence the Courts below have erred in dissolving the marriage of
petitioner with respondent on the basis of Khula.
However, in the case of Mst Saffiya
Bibi v. Fazal Din etc.
reported in PLJ 2000 Peshawar 355, it was held that when a wife in her plaint
states that it would not be possible for her to live within the limits
prescribed by Allah but in her statement also substantiates the same plea, then
marriage between the parties can be dissolved on the basis of Khula. The relevant portion from the judgment runs as
under:--
"Khulla is a release from matrimonial bond which according
to dictates of Holy Quran can be exercised if the circumstances indicate that
it is impossible for the parties to live within the limits prescribed by Allah
Al-mighty and their reunion will give birth to hateful union and the Courts are
bound to grant this right of Khula to a woman where
she expressly claims or omits to claim in her pleadings and even if the other
grounds for seeking dissolution of marriage could not be proved."
While taking the
above view, reliance was placed on the cases of Mst. Zarina Bibi v. Additional
District Judge, Jhang and others 1993 MLD 1507,
"Mst. Shakila Bibi v. Muhammad Farooq and
another 1994 C.L.C. 230, Mst. Razia
Begum v. District Judge, Jhang, 1995 CLC 657 and Mst. Manzooran Bibi vs. Khan Muhammad etc. 1998 CLC 1929. The argument of
learned counsel for respondent/husband is, therefore, not forceful in the
circumstances of this case, when petitioner in her plaint has specifically
stated that "due to the above stated reason, the plaintiff has developed
severe hatred and is therefore not in position to live with the defendant"
and again she has stated in her Court statement that it was because of her
hatred when she filed suit for dissolution of marriage.
7. Coming to the aspect of recovery of dower, it
may be mentioned that petitioner herself has conceded in her evidence that at
the time of ouster from the house she had taken away 05 tolas
of gold earlier given to her by respondent at the time of Rukhsati.
As per latest view of the superior Courts if the husband is not at fault but
the wife for some reason or another wishes to end the
marriage, then it is permissible for the husband to demand and receive some
financial payment, however, it would be superior for him not to take more than
the actual stipulated dowry. Section 10 of the West Pakistan Family Courts Act
has mandated the Court to reconcile the parties once they enter appearance but
the proviso to this section stipulates that where this is not forthcoming in a
case seeking divorce through `Khula', a decree
dissolving the marriage is to be passed forthwith and at the same time the
dower amount is to be restored to the husband. In this view of the matter, the
learned appellate Court has rightly held the respondent/husband to recover
dower of 05 tolas gold ornament, which was admittedly
given to petitioner at the time of rukhsati and which
she had taken with her at the time of leaving the house of respondent.
8. Resultantly, both the writ petitions being
without merit are dismissed with no order as to costs.
(R.A.) Petitions
dismissed
