P L D 1994 Azad J & K 86 (PLP)

‑‑‑‑Khula'‑‑‑Payment of dower or delivery of ornaments by husband to wife‑‑ Proof‑‑‑Where husband claimed that specific amount bf dower was fixed at the time of wedding of parties and it was paid by husband to wife, onus was always on husband to prove such question of fact by direct evidence‑‑‑`Nikahnama' in question, although contained recital relating to d6wer money and its payment in the shape of ornaments, yet such recital had been repudiated arid explained by the scribe of the document and `Nikahkhawan' and his statement was .corroborated by another witness of `Nikah'‑‑‑Such explanation by independent witnesses had sufficiently rebutted entry in `Nikahnama'‑‑‑Decree of divorce by Khula` rendered by Courts below was maintained brat same would not be deemed subject to payment of dower money‑‑Decree of divorce by Khula` was modified in circumstances: ‑[Burden of proof]. M. Nisar Mirza for Appellant. Ch. Muhammad Sadiq for Respondents. The appeal is addressed against the order of the learned District Judge, Kotli, passed on September 30, 1993, whereby order resulting in decree for divorce on the ground of `Khula', subject to payment of dower money in the sum of Rs.20,000 as condition precedent, was partly modified.

2. Mst. Nasreen Akhtar brought a suit for divorce on 'various grounds, including cruelty and `Khula', against Javed Iqbal, her husband, in the Court of Additional Sub Judge, Kotli, on May 31, 1990. The counter‑suit was instituted by Javed Iqbal on October 16, 1996. Both the suits were consolidated. The suit for restitution of conjugal rights was dismissed and counter‑suit for divorce was decreed, on the ground of `Khula', subject to payment of Rs.25,000 dower money. Both parties went in appeal before the learned District Judge. The appeals were disposed of in the manner that the condition of decree for divorce on payment of dower money was relaxed anti the second appeal relating to restitution of conjugal rights was dismissed. In the present appeal, counter‑objections were filed by Mst. Nasreen Akhtar, seeking divorce on the ground of cruelty and non‑payment of dower money as, according to her claim, the amount of dower, though promised, was not paid by husband to her in the shape of ornaments.

3. The learned counsel for the parties have addressed arguments at length and took the Court through the record and evidence of the relevant witnesses.

4. In support of her claim, to seek divorce by virtue of alleged cruelty, Mst. Nasreen Akhtar appeared herself and produced Muhammad Hussain and Muhammad Rashid. She explained the circumstances and events relevant to the alleged cruelty. The allegation of cruelty confined to sexual dissatisfaction and open beating and misbehaviour of the husband. Part of allegation relating to open beating and misbehaviour was sought to be proved by the aforesaid witnesses. Both the subordinate Courts were in agreement that the allegation of cruelty was not proved to their satisfaction. A perusal of the record reflects that the allegation was not established in the light of accepted rules of evidence. The evidence was sketchy and not squarely corroborated to lend complete satisfaction to the Court. Therefore, in presence of the aforesaid character of evidence coupled with concurrent findings of facts of the subordinate Courts, it is held that the allegation of cruelty is not well established.

5. The parties are in agreement that the circumstances disclosed in the pleadings and evidence of the parties, particularly in the evidence of husband and wife, lead to a definite conclusion that the parties could not live and perform marital obligations in accordance with the Islamic injunctions. In such situation, separation of the spouses was imperative. The rule of divorce by Khula` implies return of gifts received by wife from the husband during their marriage. It includes payment of dower, if any; and ornaments by husband to his wife. In case presentation of gifts, payment of dower and ornaments is not proved, in that situation, it is permissible to allow `Khula' even without consideration. In the present case, the pivotal point in controversy relating to payment of dower money, is actual delivery of ornaments by husband to his wife, as entered in the `Nikahnama'. The execution of `Nikahnama' is accepted to the parties. In column No. 7 of the document, Exh. DA, it is entered that a sum of Rs.25,000 as dower money was paid in the shape of ornaments. The. `Nikah' was performed on April 17, 1988, at 11‑30 a.m. Mian Lal Hussain was `Nikahkhawan'. Abdul Rashid son of Raj Muhammad, Haji Muhammad Khalil, Muhammad Khan son of Sher Muhammad, Muhammad Rafique Mughal and Abdul Qayyum were entered as witnesses and `Wali' of the parties. Out of these Muhammad Khan and Mian Lal Hussain appeared as witnesses of plaintiff‑respondent. Mian Lal Hussain was also scribe of `Nikahnama'. In his examination‑in‑chief, the witness deposed that `Nikah' was entered in the register of `Nikahs'. The entry relating to payment of dower in the shape of ornaments was also made but the ornaments were not delivered by the husband to his wife in his presence. It was promised that the ornaments shall be delivered at the time of `Rukhsati'. The witness was examined at length. There is no apparent reason to believe that the witness was biased, interested or inimical towards the husband. Malik Muhammad Khan son of Sher Muhammad, another person entered as witness of `Nikah', was also produced by plaintiff‑respondent. He corroborated Mst. Nasreen Akhtar and Mian Lal Hussain, on account of fixation of amount of dower money, and its satisfaction in the shape of delivery of ornaments. The witness expressly deposed that the ornaments were not delivered at the time of `Nikah' and it was promised that the same shall be delivered subsequently. The promise was never fulfilled, in the knowledge of the witness. This witness is also impartial and unbiased. In rebuttal, Javed Iqbal produced Khalid Mahmood, Advocate who claimed to be present at the time of `Nikah' ceremony. The witness deposed that he visited the bride alongwith the witnesses to seek her consent to perform `Nikah'. He noticed that she was wearing ornaments in the shape of 2 rings, 2 `Teelay', one necklace and 2 ear‑rings. It was deposed that 'Nikah' was performed in consideration of aforesaid ornaments. The witness was cross- examined by the counsel for the wife. In cross‑examination, no contradiction was discovered. Nevertheless, the evidence of this witness is not deemed exact and relevant as his name was not entered among the witnesses of `Nikah'. Moreover, he failed to depose that these ornaments were delivered in his presence by the husband to his wife.

6. The aforesaid evidence leads to unavoidable inference that the dower money was not paid in the shape of ornaments. ‑The rule of evidence is that whenever it is claimed by husband that a specific amount of dower was fixed at the time of wedding of the parties and it was paid by husband to wife, the onus is always on the husband to prove the question of fact by direct evidence. In case of acceptance of payment of dower or delivery of‑ornaments, the burden of proof is shifted to the wife to establish that she was deprived of the dower money or the ornaments, by the husband at any subsequent stage of their married life. In the present case, Mst. Nasreen Akthar, in her examination‑in-chief deposed that a sum of Rs. 25,000 was fixed as dower money. She declined expressly payment of dower or delivery of ornaments of the value of dower money, by the husband. Her long statement resting on various pages, does not help apparently, to disbelieve her on this point. The net result is that payment of dower money is not established. The subordinate Courts relied their findings on the entry of `Nikahnama' and held that dower money was paid in the shape of ornaments. It is correct that `Nikahnama' contains the recital relating to dower money and its payment in the shape of ornaments, but the recital has been repudiated and explained by Mian Lal Hussain, the scribe of the document and `Nikahkhawan'. He was corroborated by Malik Muhammad Khan, another witness of `Nikah' of the parties. Since the explanation sufficiently rebut the entry in the `Nikahnama' is well established by independent evidence, it cannot be ignored lightly. The subordinate Courts failed to appreciate the explanation furnished by independent evidence of the aforesaid witnesses. The finding is, therefore, not sustained.

7. In view of the aforesaid reasons, the decree of divorce by `Khula' is maintained. However, it is not deemed subject to payment of dower money as held by the subordinate Courts. The appeal and cross‑objections are disposed of accordingly. No order as to costs. AA./44/H.CA. Order accordingly.