P L D 2011 Karachi 196 (PLP)

AHMED ALI M. SHAIKH, J.

Through this Constitutional petition, the petitioner has impugned the judgment and decree dated 11-8-2010 passed by IIIrd Family Judge, Karachi (East) in Family Suit No.87 of 2001 whereby Family Court dissolved the marriage between the petitioner and respondent No.1 by way of Khula'.

2. From the pleadings it appears that the petitioner and respondent No.1 were married on 14-3-2009 at Karachi and the dower amount was fixed at Rs.10,1000 half prompt and half deferred. `Rukhsati' ceremony was held on 12-11-2009. Unfortunately the marriage of the spouse could not run smoothly and differences cropped up between the parties and ultimately respondent No.1 left the house of the petitioner and joined her parents. Thereafter she filed a suit for dissolution of marriage by way of Khula' before the Family Court. On 11-8-2010 the suit was fixed for pre-trial between the parties for reconciliation but the petitioner instead of participating the reconciliation proceedings, preferred to remain absent and moved adjournment application. However, respondent No.1 through her written statement filed before the Family Court, categorically stated that she has developed hatred in her heart for the petitioner and it is not possible for her to live with him within the limits prescribed by Almighty Allah and she is not even ready to reconcile with the petitioner therefore pretrial be declared as failed and suit be decreed.

3. At the very outset, learned counsel for the petitioner contended that the impugned judgment and decree was passed in haste and in mechanical manner without providing opportunity of reconciliation to the parties particularly to the petitioner. He further contended that while passing the impugned judgment the learned Family Court did not take into consideration important aspect of the case regarding dower amount which was paid by the petitioner to respondent No.1 and failed to discuss said issue in the judgment. However, after arguing the matter at some length he submitted that the parties i.e. the petitioner and respondent No.1 be called and provided an opportunity of reconciliation. Learned counsel for respondent No.1 also agreed to such proposal.

4. With the consent of learned counsel for the parties, the petitioner and respondent No.1 were called, they appeared in Court and were provided an opportunity for reconciliation. However, respondent No.1 flatly refused to do so and stated in clear terms that she has suffered mental torture at the hands of the petitioner. She has developed hatred for the petitioner, therefore she is not ready to join him at any cost. Respondent No.1 is a doctor by profession and cannot be compelled to live with the petitioner as his wife against her wishes therefore, in my view, while passing the impugned judgment and decree the Family Court has not committed any illegality.

5. In Syed Matanat Moazaam Bukhari v. Dr. Afra Saeed and 2 others (2010 CLC 58) it was held by this Court that when relations between the wife and husband are strained to such an extent where they become irreconcilable and wife had expressed her irretrievable position that she could no more live in piece and harmony with the husband, wife was rightly granted Khula' by the Family Court in the circumstances.

6. The question of restitution of dower amount was elaborately dealt with in the case of Aurangzeb v. Mst. Gulnaz and another (PLD 2006 Karachi 563). In the said case reliance was placed on the case of Mst.Shamshad Begum v. Abdul Haque alias Nawaz and 2 others reported in PLD 1977 Karachi 855 wherein it was observed that it is not lawful for a husband to take back anything from his wife particularly when Khula' was due to some fault on his part. While relying on the judgments pronounced in other reported cases, it was held that restitution of the dower is not indispensable condition for grant of Khula' and non-restoration of dower and other benefits will not have any effect upon the validity of the decree. Once the Family Court comes to the conclusion that a wife was entitled for Khula', it must pass such decree in her favour. The decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability. If the contention of the petitioner that Khula' cannot be granted without restitution of dower and other benefits is accepted, then a destitute wife, who is found otherwise entitled to Khula', will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice.

7. For the foregoing reasons and following the dictum laid in the above cases, I am of the considered view that the petitioner has no force and lacks the merit, consequently the same was dismissed in limine by short order, dated 10-2-2011 for the aforesaid reasons. H.B.T./A-28/K Petition dismissed.