2003 PLP 3047 (YLR)

(6) Whether the behaviour of defendant was cruel and harsh towards the plaintiff? (7) Whether defendant is impotent, if so, its effect? (8) Whether the dower of the plaintiff is partially paid in the shape of payment of Rs.1,00,000? (9) Whether during the period of "Ghairabadi" defendant has failed to provide maintenance to the plaintiff? (10) Whether plaintiff is entitled to the decree for dissolution of marriage? (11) Whether plaintiff is entitled to the decree for recovery of gold ornaments, maintenance and Rs.50,000 as expenses incurred on medical treatment? (12) Whether plaintiff is entitled to the decree for recovery of Rs.1,00,000 value of furniture etc.? (13) Whether plaintiff is entitled to the decree as prayed for in para. (Jeem) of the plaint? (14) Relief.

2. In evidence Mst. Rafia Gul appeared as P. W.1 and she produced her mother Mst. Bibi Hajira who was examined as P.W.2. As against this, Abdur Rauf appeared as D.W.1 and the statement of Dr. Shafique Ahmad, Gynecologist was recorded as D.W.2. Mst. Rafia Gul repeated the allegations and charged her husband for impotency. She also charged her husband and his first wife for ill treatment.

3. Upon consideration of the evidence adduced by the parties, learned Judge Family Court, Peshawar, proceeded to hold that respondent has not been able to prove cruelty or impotency of the petitioner that both the parties cannot live together as husband and wife within the prescribed limits of God Almighty and that respondent is entitled for grant of decree for dissolution of marriage by way of Khula. Having held so, he partially decreed the suit by his judgment and decree dated 20‑5‑2000. An appeal was preferred before learned District Judge, Peshawar which was entrusted to learned Additional District Judge, Peshawar for disposal. The learned Appellate Court modified the impugned judgment and decree of trial Judge and came to the conclusion that respondent wife has succeeded in proving the alleged cruelty on the part of petitioner‑husband and she is entitled for the recovery of 8 Tolas gold ornaments or its value as well as for recovery of Rs.2,50,000 as price of plot. The other reliefs granted were left intact.

4. Feeling aggrieved of the impugned judgments and decrees, petitioner‑husband has invoked Constitutional jurisdiction of this Court through instant writ petition.

5. We have heard Mr. Abdul Maabood Khattak, Advocate for petitioner‑husband and Haji Muhammad Zahir Shah, Advocate for respondent‑wife. We have also gone through the entire material with their assistance. The decree for dissolution of marriage has not been challenged. The dispute is essentially in respect of plot in question and return of the furniture stated to have been given to respondent‑wife at the time of marriage.

6. A perusal of the record would reveal that after marriage the couple lived together hardly for 7/8 months. There is no issue out of the wedlock. The petitioner‑husband is already married and this fact was in the knowledge of respondent‑wife at the time of her marriage with petitioner‑husband. Having scanned the material on record we are of the considered view that the allegation of cruelty has not been established through convincing evidence and the respondent‑wife seems to have left the house of petitioner‑husband without any justifiable reason and declined to join him without there being any fault on the part of the petitioner‑husband. We also find that learned trial Judge was fully competent to dissolve the marriage of couple in absence of plea of Khula', on coming to the conclusion that in view of the facts and circumstances of the case it was no more possible for the couple to live together amicably as husband and wife within the limits ordained by Allah. A decree for dissolution of marriage on the basis of Khula' is only passed when the Court, after the objective appraisal of the evidence on record, comes to the conclusion that there is left no trace of harmony in the life of the spouses and their living together as husband and wife is not possible within the limits of God. It is well‑settled that if on the basis of the material on the record or circumstances prevailing in the case the conscience of the Court is satisfied that it shall not be possible for the parties to live together as husband and wife within the limits 1H prescribed by Allah, the spouses should be separated on the ground of Khula'. The marriage under Islamic Law is a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Qur'an and it is for comfort, love and compassion. It is the bounden duty of a husband to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage. Islam has laid down the parameters for spouses to live within those bounds and if the parties transgress those parameters they should relieve each other i.e. they may break the matrimonial the with kindness. It is not denied that dower is a debt and the, husband is under obligation to pay the same on demand.

7. It may not be out of place to mention here that petitioner‑husband has already obtained a decree for restitution of conjugal rights on 26‑7‑1999 from the Court of Mirza‑Sarfaraz Ahmad, Civil and Family Judge, Malir, Karachi. This decree has not been challenged. The same is still intact. Surprisingly, both the Courts below have omitted to mention this fact in their impugned judgments and decrees.

8. Having found that respondent‑wife left the house of the petitioner‑husband I without any justifiable reason and without any fault on his part, we are of the view that respondent‑wife is not‑entitled for possession of plot, statedly given to respondent‑wife by the petitioner‑husband in lieu of dower. A disgruntled wife is not entitled for return of benefits in case of dissolution of marriage through 'Khula' as held by this Court in an unreported judgment in. Karim Ullah v. Shabana and two others (Writ Petition No. 1102 of 2001).

9. Regarding the return of furniture or payment of its price, it is submitted by learned counsel for petitioner‑husband that the furniture is lying in the house of petitioner‑husband at Karachi and the respondent‑wife shall be at liberty to take away the same at any time. As the marital tie between the couple has already been broken and respondent‑wife is not willing to go to Karachi, it shall be the responsibility of petitioner‑husband to arrange for the transportation of the furniture to respondent‑wife's house at Peshawar. This shall be done within one month from the date of announcement of this order. The findings of the Courts below on the remaining reliefs granted to respondent‑wife are maintained, except recovery of Rs.2,50,000 as price of plot.

10. In the result and for the foregoing reasons, we accept the petition and declare the impugned judgment and decree to the extent of Rs.2,50,000 as price of plot as illegal, void and of no legal effect. We make no order as to costs. Petition accepted. H.B.T./892/P