2004 PLP 674 (YLR)

Raja Khalid Hussain Rathore, Advocate, the learned counsel for the respondent, has controverted the arguments raised by the learned counsel for the appellants and submitted that the appellants have themselves admitted in para. 3 of their written statement that the deferred dower Rs.1,00,000 is still to be paid to the respondent, therefore, the appellants cannot take a stand contrary to their pleadings. The learned counsel further argued that the appellants have not challenged the decision of dissolution of marriage recorded by this Court vide order dated 5-6-2000, therefore, they are now debarred from challenging the impugned decision arid decree. I have very carefully attended to the submissions made at the bar in the light of the material available on the record. At the very outset, it will be relevant to point out that although the respondent has filed a suit for recovery of dower in sum of Rs.1,40,000, but she has frankly admitted in her statement before the Court below that dower Rs.40,000 has been paid to her by the appellant No. 1 in shape of ornaments. Muhammad Ashraf, Muhammad Saghir and Amjad Iqbal, the witnesses for the respondent, have also deposed in like manner. On the other hand, this position has also been conceded not only by Faheem Ishaq, Shaukat Hussain and Muhammad Khalil, the witnesses for the appellants, but also by Muhammad Saeed, an attorney and brother of the appellant No.

1. In this manner, the controversy between the parties remains only about, the payment of the deferred dower Rs.1,00,

000. It is also admitted on the part of the parties that a decree for dissolution of marriage has been passed by the Court below on. the ground of "Khula" vide decision and decree dated 30-9-1999 and the same was upheld by this Court vide order dated 5-6-2000. The perusal of the decision and decree passed by the learned Judge Family Court makes it crystal clear that the Court below was cognizant of the fact that the dower for the respondent was fixed as Rs.1,40,000, out of which the ornaments worth Rs.40,000 or their price Rs.40,000 was fixed as consideration for "Khula". The relevant portion of the judgment is reproduced below:-- The aforesaid decision and decree were assailed in appeal, whereby this Court while deciding the appeal on 5-6-2000 observed as under:-- "The trial Court, therefore; was justified in-law in directing her to refund either the ornaments which she had received from her husband or pay him Rs.40,000 the price of the ornaments because she has gone to the Court seeking dissolution of her marriage." It transpires from the perusal of both the above mentioned orders that a decree for dissolution of marriage was passed on the ground of "Khula", on consideration of Rs.40,000 the dower money which the respondent had received from her husband in shape of ornaments. As the remaining dower was not paid to the respondent, therefore, the respondent was not ordered to pay the same to her husband, Munir Anwar one of the appellants. If she would have received the entire dower money, the Court should have directed the respondent to pay back the whole of the dower amount. It is the celebrated principle of Islamic law that dower cannot be split in two parts, and in case of "Khula" a wife is always bound to return all the benefits which she had received on account of marriage from her husband because "Khula" causes every right to fall or cease which either party has against the other depending on marriage. I find little force in the plea of the learned counsel for the respondent- that the appellants are debarred from challenging the impugned decree on the ground that the appellant No. 1 did not challenge the decree for dissolution of marriage passed by this Court, thus, I accordingly repel it. It will be useful to mention here that previous to the Islamic Legislation, the wives had no right to claim a dissolution of the marriage on any ground whatsoever. In special cases only the power of divorce was expressly reserved in their favour by contract. As a general rule, neither the Hebrews nor the pre-Islamic Arabs recognized the right of divorce for woman. The Holy Book (Qur'an) allowed them this privilege which had been denied to them by the primitive Constitutions of their country, therefore, the basis and the origin of the legality of "Khula" is the Qur'anic Verse viz. Surah Al-Baqarah, Verse: 229, translation of which is as under:-- "A divorce is only permissible twice; after that, the parties should either hold together on equitable terms or separate with kindness. It is of the lawful for you (men) to take back any of your gifts (from your wives) except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are, the limits ordained by Allah, so do not transgress them." Under the above mentioned Verse, the following conditions must be fulfilled for the due application of the principle of "Khula", viz.:-- (a) Apprehension of the husband and the wife that they cannot live within the limits of Allah. (b) It is the wife who seeks a separation from the husband. (c) It must be she who is to pay the consideration. It seems beneficial to quote some of the learned Scholars on the subject: Neil B.E. Baillie in his famous book "A Digest of Muhammadan Law" has expressed the following opinion at page 307:-- "When a Khoola has been entered into for property named, known, and equal to the dower, then if the woman has been enjoyed and has taken possession of the dower, she must deliver the exchange for the Khoola, to her husband, and neither party can follow the other for anything after the repudiation; and though she may not have taken possession of the dower, she must still deliver the exchange for the Khoola, and according to Aboo Huneefa, has no claim for any portion of the dower. " It has, also been stated in Fatawa-i -Alamgiri, Vol. 1 at page 675 that "whatever is lawful for dower or is capable of being accepted as dower, may lawfully be given in exchange for `Khula'." As a general rule, everything which may be given in dower may serve as a compensation for "Khula". The (Shish) Sara'ya uses similar words: It says; "whatever may be given for dower may validly be given as indemnity for "Khula" and there is no limit to the same either in the amount or quantity". The Sunni doctrine holds the view that if the woman were to say: "give me a "Khula" in exchange for my dower", arid the man were to reply; "I do", a lawful dissolution of the marriage-tie would be effected and the dower would drop. In Balqees Fatima's case PLD 1959 (W.P.) Lahore 566, it was observed (by the Full Bench) that the wife was entitled to "Khula" as a right on restoration of what she had received from husband in consideration of marriage (underlining is mine), if Judge apprehends that the parties will not observe the limits of God. The aforesaid report was approved subsequently by the Supreme Court in Mst. Bibi's case PLD 1969 SC

97. The above stated authorities were relied upon in Jan Ali's case PLD 1994 Peshawar 245, wherein it was opined that "Khula" was a right of wife and she was entitled to dissolution of marriage on restoration of what she had received from her husband in consideration of marriage (underlining is mine), if the Court comprehends that the parties would not observe limits of God. It is evident from the above quotes opinions of the learned scholars arid the eminent Judges that when a " Khula" has been entered for the dower, if the woman has been enjoyed and has obtained possession of it, the husband may reclaim it from her and if she has not obtained possession of it, his liability for the whole dower falls to the ground, and neither party has any claim against the other fort anything. Therefore, it follows that the Judge Family Court has misdirected himself by allowing a decree of dower in favour of respondent after annulment of the marriage of the spouses on ground of "Khula". Thus, the decision and decree passed by the Family Court are illegal which cannot be sustained. The nutshell of the above discussion is that; I accept this appeal and set aside the decision and decree passed by Family Court Poonch, Rawalakot dated 30-4-2001. H.B.T./60/Sh.C(AJ&K) Appeal accepted.