1988 PLP 1207 (MLD)

This petition, which arises from a Family suit filed by the against her husband, the respondent No.1 for dissolution of marriage, has been filed in the following circumstances. The petitioner married the respondent No.1 on 5‑7‑1984 and Rs.25000 was fixed as dower by the parties. Thereafter, differences arose between the parties with the result that the petitioner filed Family suit No.249 of 1985 against the respondent No.1 for the dissolution of her marriage by Khulla as according to the petitioner, she had developed such an aversion against the respondent No.1 that it was no more possible for the parties to live as husband and wife within the limits prescribed by God. In thereof the petitioner offered to forego her unpaid dower amounting to Rs.25,000 and also to restore two pieces of jewellery, namely, a nath and a tilla which according to her, and been retained by her out of the Jewellery received by her from the respondent No.1 This plea of the petitioner was however, denied by the respondent No.1, according to whom, the Jewellery received by the former at the time of her engagement and subsequently at the time of the marriage and the salami consisted of many more items. Besides that, according to the respondent No.1, the petitioner had received from him cloths of the value of Rs.45,000, two watches and Rs.50,000 in cash. On the basis of the respective pleadings of the parties, the learned Family Court framed various issues but the same need not be reproduced here as the only relevant issue for the purpose of the petition is issue No.3 which is reproduced as under:‑ "What benefits the plaintiff has received from the defendant?" Thereafter, the parties led evidence before the learned Family Court which granted a decree of dissolution of the marriage by Khula to the petitioner subject to the restoration of the benefits received by her as alleged by the respondent No.1 which also included foregoing of her right to the unpaid dower. It is pertinent to point out here that while dealing with the issue No.3, the learned Family Court disbelieved the evidence of the petitioner, but totally believed that of the respondent No.1 on the basis of which the decree was passed as pointed out above. The reasons which weighed with the learned Family Judge for arriving at his conclusions may be reproduced in his own words as follows:‑ "Now, the above claim of defendant is fully corroborated by his evidence as well as the evidence of his mother. They have however, not deposed only about the ceremonial dress of engagement which is already admitted by plaintiff in her evidence to have been received by her. The defendant's uncle Nizamuddin by his evidence has also fully corroborated the above assertions of defendant except that he has not deposed about the watch of Salami. The D.W. Sabahatullah who claims to have attended the engagement and marriage being relatively of both the parties, has also fully corroborated word by word all the. said golden ornaments and clothes/dresses given by defendant to plaintiff at the time of engagement and marriage. The father of defendant namely Ghulam Muhammad has also corroborated for the said ornaments and clothes of marriage. All this evidence clearly supports the version and claim of defendant which also gets support from the photographs and receipts produced by defendant and his mother showing same of the ornaments in question. Moreover, all the said property is further proved by the corroborated evidence of defendant's party, to have been taken by the plaintiff on 21‑7‑1984 to her parents' house while leaving the house of defendant. The said evidence of defendant party also could not be shaken on any material point during their cross‑examination even. The only contradiction which appears from the entire evidence of defendant's party is that D.W. Nizamuddin has shown the value of the dress of engagement as Rs.1,000 which is mentioned by defendant as Rs.1,

500. But this simple contradiction does not appear so material to be taken into consideration. `On the other hand, the plaintiff has claimed to have received only the golden ornaments i.e. Necklace Tika, Nath and Ear Rings at the time of marriage, but this version of the plaintiff is not corroborated even by any of her witnesses who all are silent in this regard and have‑not deposed any single word to show if the said benefits/ornaments only, were received by the plaintiff. It is also surprising and appears to be un believable that she was not given even a single dress/cloth in her marriage, while she was given the dress at the time of her engagement even, as admitted by her first time during her cross‑examination. She further admitted in her evidence to have also received some set at the time of her engagement. In the circumstances, I find that neither the words of plaintiff only, make the corroboratory evidence of defendant party as doubtful nor the minor or immaterial contradiction, if any, arising out from the evidence of defendant's party, vitiates the entire claim of defendant outright. Even otherwise, this is not a criminal case of theft to require the defendant to prove by independent corroboration and without any sort of contradiction, each and every ingredient of taking away the. property/articles by the plaintiff. `For the aforesaid reasons, I hold that the plaintiff is proved to have received all the said benefits from the defendant in consideration of her marriage." I have heard Mr.Anwar Oadri, learned. counsel for the petitioner and Mr.Kamaluddin, learned counsel for the respondent. According to Mr.Qadri, the findings of the learned Family Court in respect of the issue No.3 are completely arbitrary as the established principles followed by the Courts in this respect have been completely ignored by the learned Family Court, while arriving at its conclusions in respect of the restoration of benefits by the petitioner to the respondent No.1. The learned counsel has therefore argued that the part of the decree in respect of the return of the benefits is without lawful authority. The learned counsel for the respondent No.1, on the other hand, although, has not raised any controversy in respect of the petitioner's right to obtain Khula from the respondent No.1, but his contention is that as a consideration for Khula, the wife was liable to return all the benefits she had received from the husband and since the claim of the respondent No.1 in respect of the total benefits received by the petitioner from him was supported by proper evidence which has been believed by the learned family Court, this Court should refrain from interfering with the findings arrived at by the learned family .Court which are not arbitrary under the circumstances but based on evidence adduced by the respondent No.1 in this respect: According to Hidaya, 'Khula' signifies an agreement between the spouses for dissolving a connubial connection in lieu of compensation paid by the wife to the husband out of her property. According to verse 229 of Sura Baqr in the Holy Quran, "no crime is imputed to the wife of her husband, respecting the matter in lieu of which she hath released herself." There are two classes of cases of Khula: (1) by mutual agreement and (2) by order of the Qazi or the Court. In the first case the dissolution of marriage takes place by the husband s pronouncing Talaq and in the second case, the marriage is dissolved by a decree of the Qazi or the Court. .. In Mst.Balqis Fatima v. Najmul Ikram Qureshi P L D 1959 (W.P.) Lah. 566, it was observed by the Supreme Court as follows: "If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received. The jurisdiction of the Qazi to dissolve a marriage in cases of shiqaq is limited only by what is stated in the Quran, i.e., "if you fear a breach" which means that there is real discord between the parties, and in the case of Khula by the words "if you fear that they will not observe the limits of God:" While effecting separation, the Qazi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife:' In an other case reported as Mst.Khurshid Bibi v. Baboo Muhammad Amin P L D 1967 S C 97, it was held by the Supreme Court as under:‑ "Though according to the Hidaya, it is abominable on the part of the husband to have more than the dower itself; in a case of separation by Khula, yet if he insists, it is, legally permissible for him to demand something more than the dower, and to the extent that he might have been out of pocket, in respect of gifts, given to the wife on marriage, he may, in law, demand restitution. This would necessitate an enquiry into the facts and the final decision as to what compensation must be paid by the wife for her relief must rest with the Court:" The learned counsel for the parties have also referred to two other cases, the first being that of Tv1st.Parveen Begum v. Muhammad Ali P L D 1981 Lah.

116. In this case, the Family Court dissolved the marriage between the spouses by Khula on the basis of the statement made by the wife that: "If the Court gets me divorced I am prepared to forgo every thing but my husband has given me nothing." However, while dissolving the marriage, the Court ordered the wife to also restore her dowry to the husband besides the forgoing of her right to the recovery of her unpaid dower. 'The wife then challenged the part of the decree ordering her to restore her dowry to the respondent‑husband and when the matter ultimately reached before the Lahore High Court in an intra‑court appeal, it was held by it as follows:‑ "

11. The Holy Prophet (peace be upon him) upon whom the Holy Quran was revealed was the best person in the world to correctly interpret the contents thereof. 1n spite of the words used in verse 229 of Sura Baqr to the effect that thereby no blame on the husband and wife for what wife gives up to him to become free the Holy Prophet (Peace be upon him) directed Jamilah and Habibah both wives of Thabit B. Qays not to give more in compensation than the amount of dower fixed m consideration of marriage. There being no agreement between 'the parties with regard to quantum of compensation for Khula' and there being nothing on record to show as to what other property had been given by the respondent to the petitioner at the time of marriage, the marriage stands dissolved under the law on payment of amount of dower by the appellant to respondent No.1. The appeal stands accepted in the terms stated above without any order as to costs in the peculiar circumstances of the case." In Abdul Rahman v. The Judge, Family Court, Gujranwala 1981 C L C 68 it was held that it was the Court's duty to ascertain from the evidence as to what benefits had been conferred by the husband on the wife in consideration of the marriage and in its discretion, to order wife to return the same. The above cases clearly indicate that in absence of any agreement between the spouses, while dissolving the marriage by Khula, the Court has discretion to order payment of compensation by the wife to the husband. Such compensation may include all those benefits which wife has received from the husband on account of the marriage including her dower. However, ‑the compensation cannot exceed equivalent of the total benefits received by the wife from the husband. The Court, in its discretion, may either order complete or partial restoration of the benefits, or not at all, depending upon the circumstances of each case. In that, the Court would also consider the question as to which of the spouses was at fault which led to the dissolution of marriage. Turning to the facts of the instant case, no doubt, the husband had claimed to have given mach more to the wife than what had been admitted by her and such claim of the husband was further supported by the evidence, but one cannot be oblivious of the fact that there was only oral evidence of the parties to support their respective contentions in this respect and no other evidence of any definite nature had been adduced by them in support of their respective pleas. Since the onus, as observed by the learned Judge himself, to prove the quantum of benefits received by the wife was on the respondent No.1, it was incumbent upon him to establish the same by clear and definite evidence. Since there was only oral evidence of the witnesses and in this country giving of false evidence in such matters is not uncommon, in my opinion, the learned Family Court should not have relied solely upon the oral evidence given by the respondent No.1 and his witnesses. Besides that it clearly appears that the learned Family Court has proceeded on an assumption that in the present case the husband was entitled to the return of all the benefits proven by him as having been received by the petitioner, when according to the law he was vested with complete discretion to fix the amount of compensation keeping in view the circumstances of the case. Reference in this respect m‑ay also be made to the observations of the Supreme Court in the case of Balqis Fatima which have already been reproduced above. The Judgment of the learned Family Court shows that all these material aspects of the case have not been considered. I am, therefore, clearly of the view that the part of the decree passed by the learned Family Court relating to the quantum of benefits and ordering of the same to be paid by the petitioner to the respondent No.1 is unlawful. As a result, the judgment and the decree of the learned Family Court in so far as it relates to the return of the benefits to the respondent No.1, is held to be unlawful and of no legal effect and the case is remanded to the learned Family Court to re-determine the quantum of compensation which may be found as payable to the respondent No.1, keeping in view the above principles. It may be clarified that the part of the decree relating to the dissolution of the marriage by Khula shall remain intact. There will be no order as to costs in view of the questions raised. A.A./S‑202/K Case remanded,