2005 PLP 1822 (MLD)

MUHAMMAD NAWAZ BHATTI, J.

Instant writ petition has been directed against the consolidated judgment and decree dated 28-9-2002 passed by the learned Addl. District Judge, Sahiwal whereby he maintained the decree for dissolution of marriage passed by the learned Judge Family Court, Sahiwal on 30-3-2002 subject to payment of Rs. 10,000 as Khula consideration.

2. Brief facts in the instant writ petition are that Mst. Sadaf petitioner filed a suit for dissolution of marriage against Dr. Zahir Javed whereas he filed a suit for restitution of conjugal rights against Mst. Sadaf, which were consolidated, both the parties filed their written statements, learned trial Court after recording evidence of the parties decreed the suit for dissolution of marriage in favour of Mst. Sadaf subject to payment of Rs.10,000 as Khula consideration whereas dismissed the suit for restitution of conjugal rights. Being aggrieved Dr. Zaheer Javed Gul filed two appeals, one against the dismissal of his suit for restitution of conjugal rights and second against the decree for dissolution of marriage by the consolidated judgment and decree passed by the learned trial Court whereas Mst. Sadaf also filed an appeal against the imposition of Rs.10,000 as Zer-e-Khula before the learned Addl. District Judge, Sahiwal and consequently appeal against dissolution of marriage filed by Dr. Zaheer Javed Gul against Mst. Sadaf was dismissed and the remaining two appeals filed by the parties were also dismissed being not maintainable and consolidated judgment and decree passed by the learned trial Court was maintained by the learned Appellate Court. Through the instant writ petition Mst. Sadaf petitioner has challenged the imposition of Rs.10,000 as Zar-e-Khula.

3. Learned counsel for the petitioner submits that the judgment and decree passed by the learned trial Court is against the law and facts of the case and the same to the extent of imposition of condition of consideration of Khula of Rs.10,000 is not maintainable in the eye of law. Further submits that the petitioner had not derived any benefit from the respondent and even no receipt in this respect has ever been produced. He has relied on "Mst. Nazir v. Addl. District Judge, Rahimyar Khan and others" (1995 CLC 296), "Muhammad Musa v. Naheeda Mai and another" (1993 MLD 263) and "Mst. Parveen Bibi v. Akbar Ali and others" (1993 MLD 433), wherein it has been held that in absence of any proof of receipts of benefits by wife from husband, wife would be entitled to grant of Khula without restoration of such unproved benefit.

4. On the other hand father of respondent No.2 appeared in person and opposed the contentions put forth by the petitioner.

5. I have heard learned counsel for the petitioner and father of respondent and carefully perused the record. P.W.-1 Mst. Sadaf Bibi petitioner/plaintiff stated that her Nikah took place on 26-10-2000 with the respondent No.2/defendant but Rukhsati did not take place and respondent No.2 requested for Rukhsati only for two hours which was allowed by father of petitioner and whole the night petitioner's relatives remained with her and after that she had not gone to the house of respondent/defendant. Dr. Zaheer Javed respondent/defendant appeared in the witnesses box as D.W.-3 and stated that Rukhsati took place and he gave 11 Tolas golden ornaments to the petitioner/plaintiff which were lying with the petitioner.

6. Respondent No.2 defendant has not produced any receipt in respect of any benefits derived by the petitioner or golden ornaments etc. except his oral statement. In the absence of any proof of receipt of benefits by the wife from the husband the wife would be entitled to the grant of Khula without restoration of such unproved benefits. There is no proof of any receipt of benefits by the petitioner from the respondent and there is also no such claim made by the respondent in his written statement or in the evidence produced on record.

7. For what has been discussed above instant writ petition is (sic) the extent of imposition of consideration of Khula Rs.10,000 are set le aside. No order as to costs. H.B.T./S-410/L Order accordingly.