2009 PLP 2399 (YLR)

ALI SAIN DINO METLO, J.

Family Suit No.25 of 2007, filed by the respondent against the petitioner for the dissolution of her marriage on the ground of Khula, was decreed by the Family Court, Shikarpur, on 11-1-2008 arid her marriage was dissolved subject to return of gold ornaments weighing 20 tolas and relinquishment of dower amounting to Rs.100,000.

2. The respondent No.1 filed appeal, bearing No.1 of 2008, and challenged the condition of returning the ornaments on the ground that finding of the Family Court regarding receipt of ornaments weighing 20 tolas by her was incorrect.

3. The appellate Court, by its judgment, dated 14-11-2008, followed by decree, dated 19-11-2008, unskillfully set aside the decree as a whole holding that the respondent had developed hatred for the petitioner and, therefore, she was entitled to get the marriage dissolved on the ground of khula.

4. The decree of the appellate Court on the face of it is bad in law and needs to be rectified in order to safeguard interests of the parties more particularly of the respondent. The very decree under which the marriage of the respondent was dissolved was set aside by the appellate Court for which there was no justification. The petitioner had not challenged the decree. The respondent had challenged the condition attached to the decree.

5. Validity of a decree for dissolution of marriage on the ground of Khula is not dependent upon the return of benefits. After the Court is satisfied that the parties cannot live within the limits prescribed by the Almighty Allah the wife becomes entitled to the decree for the dissolution of marriage on the ground of khula. In the case of Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others, reported in PLD 1983 Supreme Court 169, the apex Court was pleased to hold that non-payment of stipulated consideration for khula does to invalidate the dissolution of marriage by khula.

6. The questions regarding receipt of benefits by wife seeking dissolution of marriage by way of khula and her liability to return the same are also required to be decided by the Family Court. The Family Court or the appellate Court cannot refuse to decide such questions on the pretext that the decree for the dissolution of marriage on the ground of khula is not dependent upon the return of benefits. If it is found that the wife is liable to return some benefits received by her, the same shall be decreed to be returned and in case of their non-payment of the decree passed by a Family Court or the appellate Court shall be executed in the same manner as any other decree passed by them other civil liabilities such as dower, dowery, maintenance etc.

7. Finding of the Family Court regarding return of marriage benefits by a wife in consideration of khula is challengeable before the appellate Court, though decree for khula is not appealable. The appellate Court, instead of deciding the questions regarding receipt of benefits by the respondent and her liability to return the same, unskillfully set aside the very decree.

8. In such circumstances, where entitlement of the respondent No.1 for the dissolution of marriage on the ground of khula was not challenged by the petitioner and the finding of the Family Court, in that regard, having attained finality, could not be reopened and appeal of the respondent was only for setting aside the condition of returning the ornaments weighing 20 tolas, the appellate Court should not have avoided to decide the question on the pretext that decree for the dissolution of marriage was not dependent upon the return of benefits. Such conduct on the part of the appellate Court amounts to its failure to exercise jurisdiction vested in it bylaw.

9. The appellate Court has not given any finding regarding receipt or otherwise of the ornaments by the respondent and her liability to return the same. In such circumstances, the appeal filed by the appellant is converted into petition, the judgment and the decree of the appellate Court are set aside. The; judgment and decree of the Family Court to the extent of dissolution of the marriage on the ground of khula is maintained, and the matter is remanded to the appellate Court only to decide the issue regarding receipt of ornaments weighing 20 tolas by the respondent and her liability to return the same. The appellate Court is expected to decide the appeal expeditiously as much time has already passed. The parties shall bear their own costs. H.B.T./S-94/K???????????????????????????????????????????????????????????????????????????????????? Case remande