1991 PLP 1075 (MLD)

Date of hearing: 18th October, 1990. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the judgment passed on 6-8-1990 by IInd Senior Civil Judge Family Judge Karachi (West) whereby he has decreed the suit for dissolution of marriage by way of Khula filed by the petitioner Mst.Hina Tayab. The trial Judge while decreeing the suit directed that the petitioner shall pay a sum of Rs.20,000 to her husband Naushad Ahmed the respondent No.2 herein and that she will also not claim any amount on account of payment" of dower to her. The facts of the case briefly stated are that Mst. Hina Tayab the petitioner herein was married to respondent No.2 Naushad Ahmed on 1st February, 1985 on payment of prompt dower amounting to Rs.15,

000. After about three years she filed a suit for dissolution of her marriage to respondent No.2 on the ground of cruelty and aversion Naushad Ahmed her husband also filed a suit for restitution of conjugal rights. The trial Judge consolidated both the suits and treated the suit filed by the petitioner as the leading suit. The trial Judge on the basis of the pleadings of the parties settled 6 issues. Plaintiff examined herself and produced a Fatwa and Nikahnama while respondent No.2 Naushad Ahmed examined himself only. During the course of the arguments the Advocate for the petitioner before the trial Judge did not press the first four issues while argued on the remaining two issues only. The two issues that were pressed by the petitioner before the trial Judge are reproduced herein below: "(5) Whether the plaintiff is entitled for .the dissolution of marriage by way of Khula`, if so, on what consideration. (6) What should the decree be?" Before dealing with the issues Nos. 5 and 6 pressed by the Advocate for the petitioner before the trial Judge he took up issue No.3 which it appears was pressed by the Advocate appearing for the respondent Naushad Ahmed. Issue No.3 as given in the certified copy in the judgment produced alongwith this petition reads as under: "(3) Whether the defendant has failed to provide maintenance to plaintiff since the marriage." It appears that the trial Judge while considering issue No.3 dealt with the evidence of respondent Naushad Ahmed which related to various payments made by him as dower, purchase of household articles, flat and other payments made to the father of the petitioner in consideration of his marriage. Patently there appear to be no nexus between the evidence referred to in the judgment of the trial Judge and issue under consideration. However, the trial Judge concluded that the respondent No.2 had not succeeding in proving payments of such items. The trial Judge, however, reached the conclusion on the other evidence of the parties that the petitioner could not live with her husband respondent No.2 within the prescribed limits by Almighty Allah and was entitled to Khula`. As the result of his conclusions the trial Judge allowed the divorce by way of Khula in the suit riled by the petitioner and directed her to pay a sum of Rs.20,000 to respondent No.2 and also not claim any amount of dower from him. The petitioner has now by this petition impugned the judgment/decree passed in the suit and referred to hereinabove only to the extent of direction of payment of Rs.20,000 to respondent No.2. Mr. Zafar Hadi Shah, Advocate for the petitioner contended that as the trial Judge himself had reached a conclusion that respondent No.2 did not succeed in proving his case regarding payments made by him to the petitioner or to her parents the question of return of Rs.20,000 could not arise. The judgment impugned herein to that extent according to him has been passed without any lawful authority. Mr. Mustafa Lakhani, Advocate appearing for respondent No.2 has made reference to cases reported as P L D 1959 Lah. 566 and P L D 1967 S C

97. Although the plain reading of the judgment impugned in this petition does not make a pleasant reading as it has been written in a very casual manner making incorrect references to the issues but on examining it carefully it appears that the trial Judge was satisfied on the basis of evidence brought on record in the suit that the petitioner was entitled to grant of divorce by way of Khula`. Such finding or for that reason the entire judgment has not been questioned by respondent No.2 with the result that the judgment and decree passed in the suit and impugned herein has become final as against respondent No.2. A wife under the Muslim Law is entitled to obtain dissolution of her marriage (Khula) on restoration of what she has received from her husband in consideration of her marriage and if she cannot lead a harmonious marital life envisaged by Islam, within "limits of God". In a case where it can be proved that a wife in fact did not receive anything from her husband in consideration of her marriage she will 'be obliged to restore nothing and it shall be sufficient if she surrenders or restores the amount of Haq Mehar settled in her marriage for succeeding in obtaining divorce by way `Khula' under Muslim Law. In the present case when the trial Judge held that the respondent No.2 had not proved the payment claimed by him to have been paid to her the direction of the trial Judge to pay an amount of Rs.20,000 to him is based on facts contrary to record and amenable to the jurisdiction of this Court, under Article 199 of the Constitution of the Islamic Republic of Pakistan. The petitioner had herself asserted in her suit that she will not claim payment of dower and her husband was unable to prove its payment. The other direction to the petitioner to forego her right to recover the amount of her Haq, Mehar in the circumstances of present case is by itself sufficient to meet the requirement of restoring consideration for a valid `Khula' under the Muslim Law. For the foregoing reasons the judgment/decree impugned in this petition to the extent of the direction to pay an amount of Rs.20,000 to respondent No.2 is declared to have been passed without any lawful authority and to be of no legal effect. This petition is allowed partly to the extent mentioned hereinabove with no order as to the costs. AA./H.278/K?? ??????????????????????? ??????????????????????? ??????????????????????? ??????????? Petition accepted.