P L D 1984 Peshawar 91 (PLP)

ABDUL KARIM KHAN KUNDI, J.‑This writ petition arises in the circum stances that Muslim Sher petitioner (husband) instituted a suit against Mst. Qudrat Bibi respondent No. 1 (wife) for the restitution of conjugal rights. On the other hand, wife instituted a counter‑suit for maintenance and dower in cash ornaments and 1/3rd share in a house. Both the suits were consolidated and were disposed of by a judgment and decree dated 29‑4‑1979. The trial Court found the wife and her minor child entitled to the maintenance at the rate of Rs. 60 per month each from 1‑7‑1977 till 30‑4‑1979. The Court also granted a decree to the wife about the recovery of dower in cash for the sum of Rs. 1,

000. However, regarding issue of recovery of dower in the shape of ornaments and 1/3rd share in the house, the Court held that the wife had since been delivered the ornaments and also possession of the house and if the items were later on usurped, the same will not be recoverable as part of dower through the proceedings in a Family Court. The Court also held that the alleged cruelty had not been proved by the wife at the trial. The court granted a decree for restitution of conjugal rights to the husband subject to condition of the payment of cash dower of Rs. 1,000' and the past maintenance of Rs. 2,640.

2. The husband went in appeal as against the said judgment and decree of the Family Court before the District Judge which was dismissed on 3‑2‑1980. He had, however, meanwhile remitted the cash dower of Rs. 1,000 to the wife by Money Order on 23‑11‑1979, receipt of which was duly acknow ledged by the wife. Soon after on 17‑2‑1980 the wife instituted a suit for the dissolution of marriage on grounds of cruelty, non‑maintenance, non performance of .conjugal rights, protracted litigation and 'Khula'. The husband had by then deposited the decretal amount of maintenance allowance and applied for execution of decree for conjugal rights. In his reply to the dissolution suit the husband denied the allegations levelled by the wife. Besides, be raised the pleas of estoppel and res judicata. There has, however, not been framed an issue on the point of res judicota by the Family Court Judge.

3. In the dissolution suit the trial Court, in nutshell, held that the wife was entitled to the maintenance with effect from 1st of July, 1977 and that the husband failed/neglected to maintain her for a period of two years. The trial Court also determined the issues of cruelty and non‑performance of conjugal rights in favour of the wife. Wife was additionally found entitled to separation on the basis of 'Khula'. The Court, however, did not proceed to determine the benefits received by the wife as consideration of the marriage. At last there was granted a decree of dissolution of marriage to the wife as against the husband by a judgment dated 30‑9‑1980.

4. Since no other remedy by way of appeal or revision was available to the husband as against the decree of dissolution of marriage passed against him, the husband filed this' writ petition on grounds that in view of the decree for restitution of conjugal rights passed against the wife and his having paid the dower and past maintenance, no decree of dissolution of marriage could be passed against him. He further alleged that the wife had no cause of action for instituting the suit for dissolution of marriage on the grounds of non‑maintenance for two years and non performance of conjugal rights for three years as she had allegedly instituted her suit before the expiry of the statutory periods. He alleged that the wife was legally barred from agitating the plea of cruelty in her suit for dissolution of marriage as no such plea was ever advanced by her in his suit for restitu tion of conjugal rights. The husband also raised an objection to the dissolu tion of marriage on the ground of 'Khula' without the determination and return of the benefits received by the wife. Last be raised the objection that respondent No. 2, the Presiding Officer of the Family Court, was a female and could not act as a Qazi and as such the decree passed by her was null and void. This objection was, however, not pressed at the bar when con fronted to with the verdict of the Federal Shariat Court that a woman can also sit and act as a 'Qazi'.

5. After hearing the learned counsel for the parties at some length, we proceed to settle the points raised in the writ petition in the light of the factual background as detailed above.

6. At the outset a reference was made to 225 1 C 179, a Full Bench authority of the Allahabad High Court in which wife was held not entitled to a decree for the dissolution of marriage on the ground of non‑maintenance in view of a decree for the restitution of conjugal rights obtained by the husband while he was also willing to maintain the wife at his house. Further, as a plea of cruelty raised by the wife in a suit for the restitution of conjugal rights was decided by the Court against her, the Court accordingly held that the plea of cruelty as such could not be agitated in a subsequent suit for the dissolution of marriage.

7. Here the husband contends that the plea of cruelty was not advanced by the wife in his suit for restitution of conjugal rights which, however, does not appear to be correct as during the course of judgment, the trial Court concluded from the evidence that the alleged cruelty has not been proved by the wife on the basis of which she could claim separate livelihood and maintenance. The wife could not thus possibly agitate the plea of cruelty as a ground in her suit for the dissolution of marriage in the absence of any subsequent instance of cruelty.

8. As far maintenance it stands concluded that the wife has been living apart from the husband since 1‑7‑1977, duly entitled to the maintenance on account of non‑payment of prompt dower which has only been paid on or after 23‑I1‑1979, after the expiry of a period of two years. Thus, the husband's failure to maintain the wife for two years before the institution o A suit incurred a right to the wife to obtain a decree of dissolution of marriage on the ground of non‑maintenance under section 2(ii) of the Dissolution of~ Marriage Act, 1939.

9. Husband was granted a decree for restitution of conjugal right subject to condition of payment .of 'prompt dower and past maintenance. The restitution decree was thus executable only on the fulfilment of theft conditions and before that the wife was entitled to live apart from the husband and to refuse marital obligations to him. The past maintenance arrears were deposited in Court on 26‑3‑1980 subsequent to the institution of the dissolution suit. However, a period of three years counted with effect from 1st of July, 1977 shall be completed on 30‑6‑1980 and as such the wife shall be deemed to have failed to prove the issue of non‑performance of marital obligations on the part of husband for the requisite period. The contrary finding of the Family Court on the issue appears to be based on misreading of evidence liable to be declared unlawful. 10. 'Khula' has been recognized as a valid ground for the dissolution o marriage under the Muslims Law. Judge may order the dissolution o marriage on the sole ground of 'Khula' on partial or total restoration of benefits received by the wife as consideration. of marriage. Instantly the Family Court did not advert to the determination and partial or total return of the benefits received by the wife while simultaneously granting a decree for the dissolution of marriage inter alia also on the ground of 'Khula'. 11. 1982 C L C 2295 was referred, where plaintiff had sought the repudiation of her marriage by the exercise of option of puberty. However, the Family Court had given a decision that since the marriage took place during the plaintiff's minority, the marriage was illegal and void. Any how the decree as such challenged in the High Court by writ was upheld under the observations that the judgment read as a whole rendered the wife entitled to a decree for dissolution of marriage and if there has been given an erroneous decision by the Judge Family Court on one respect, it will be wrong to set aside the whole judgment and decree in exercise of writ jurisdiction. Reference was made to Muhammad Hussain Munir v. Nikandar and others (P L D 1974 S C 139) wherein it was laid down, "it is well‑settled that where a Court or a Tribunal has jurisdiction and it determines that question, it cannot he said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of 14w." It was contended that it is not the petitioner's case that the Family Court has not the jurisdic tion in the matter, and if there was any error in the judgment of the Family Court in some respect, the same will not furnish a valid basis for judicial review.

12. There was made a reference to N L R 1982 A C

623. It was an Intro‑Court Appeal. Wife had sought dissolution of marriage on grounds of non‑maintenance, cruelty and 'Khula'. The Family Court decided issues of cruelty and 'Khula' against her while on issue of non‑maintenance, the Court held that the husband had failed to maintain her for a period of two years. and consequently, granted her a decree for dissolution of marriage. Husband filed a writ petition which was heard by a Single Judge who dismissed the writ petition. An Intro‑Court Appeal had also failed. It thus comes that if a decree for dissolution of marriage can be maintained on any one ground in the present case on the ground of non‑maintenance, the same will not assailable in writ jurisdiction simply because that the Judge Family Court failed to determine the benefits received by the wife as consideration of marriage and to order partial or total restoration thereof in case of dissolution of marriage on the additional ground of 'Khula'.

13. In view of the aforegoing discussion, this writ petition is dismissed with no order as to costs. M. Y. H Petition dismissed.