2011 MLD 762 (PLP)

SYED SAJJAD HASSAN SHAH, J.

Jan Muhammad, the defendant/petitioner by invoking the constitutional jurisdiction of this Court challenged the, validity and propriety of the judgment and decree passed by the learned Civil Judge-III, Buner, whereby, the suit of the plaintiff/respondent Mst. Hussan Zeilat was decreed on 8-7-2010 to the extent of dissolution of marriage, but the recovery of maintenance and dower was refused and the defendant/petitioner's suit seeking for the decree of restitution of conjugal rights was also dismissed.

2. Brief facts of the case are that the plaintiff/respondent filed the suit on 20-4-2010 against the defendant/petitioner seeking the decree for recovery of dower 6-3/4 tola gold and maintenance allowance @ Rs.3000 per month for five years and also the future maintenance. In alternate prayed for the decree for dissolution of marriage. The plaintiff/ respondent in his plaint asserted that the marriage of the spouses took place some 7 years ago. In lieu of dower, gold: weighing 7-3/4 tola was fixed, but the same was not given to the plaintiff/respondent. The plaintiff/respondent also averred that there was cordial relationship between the spouses. The defendant/petitioner was responsible for desertion of the plaintiff/respondent, as being tilted to the other women, neglected the plaintiff/respondent, failed to perform marital obligations for the long five years, same was the case of maintenance. Some two years back, the defendant/petitioner contracted second marriage without any rhyme or reason, therefore, the plaintiff/respondent was entitled for the decree on this ground too. The defendant/petitioner contested the suit by filing his written statement and refuted the allegations of the plaintiff/respondent made in the plaint. In the light of divergent pleas raised in the pleadings of the parties, issues framed. The learned trial Court recorded the evidence of both the parties, ultimately the suit of the plaintiff/respondent was decreed to the extent of dissolution of marriage, rest of the relief declined as prayed for by the plaintiff/respondent.

3. The learned counsel appearing on behalf of the defendant/ petitioner contended that it was discernible from the perusal of the plaint filed by the plaintiff/respondent that if at all she was considered as entitled for the decree of dissolution of marriage, then it could have been passed on the basis of khula as she asserted in her plaint about the immense aversion against the defendant/petitioner. And she has also refused to live as wife with the defendant/petitioner. In such circumstances, the learned trial Court was duty bound to dissolve the marriage on the basis of Khulla, as the defendant/petitioner had already paid the dower, therefore, entitled for the decree on return of the gold received in lieu of dower, but in this regard, the learned trial Court unlawfully and against the law of Sharia decided the suit in favour of plaintiff/respondent, in alternate prayed for the decree of dissolution of marriage on the basis of Khulla, while setting aside the judgment and decree passed by the learned Judge Family Court.

4. Arguments of the learned counsel for the defendant/petitioner considered, record carefully perused.

5. The contention of learned counsel for the defendant/petitioner legally not tenable, for the simple reason that the plaintiff/respondent not only sought the decree for dissolution of marriage on the ground of Khulla, but she has also pleaded for the dissolution of marriage on other grounds, i.e. non-payment of dower, neglecting to perform marital obligation for more than 3 years and not providing maintenance for more than 2 years and also that the defendant/petitioner has contracted the second marriage. As far as the ground of the second marriage is concerned, the same has been admitted by the defendant/petitioner. There is sufficient material on the record whereby, the rest of the grounds have also been proved.

6. As far as the payment of dower is concerned the burden lies on the defendant/petitioner to prove the same, but the perusal of written statement makes it very much clear that the dower has not been paid by the defendant/petitioner. The defendant/petitioner in paragraph-II of the factual reply stated as follows.:-- In contravention of above statement, the assertion of payment of dower is not believable.

7. Be that as it may, the plaintiff/respondent has sought the decree for dissolution of her marriage on the ground of second marriage, this was a ground which is available to the plaintiff/respondent seeking the dissolution of her marriage. In such eventuality no question arose for passage of decree on the basis of Khulla, as the plaintiff/respondent equally entitled to claim the dissolution of marriage on such ground. The learned counsel for the petitioner has failed to persuade the Court by citing any provision of law or any reference from precedent law that when the wife claims the dissolution of marriage on all the available grounds and if she has succeeded in proving that she is entitled for dissolution of marriage on any other ground than Khulla, even then the Court is bound to pass the decree on the basis of Khulla.

8. The arguments of the learned counsel are not tenable, when considered in context to a case titled Dr. Fakhr-ud-Din versus Mst. Kausar Takreem and another, reported in PLD 2009 Peshawar 92, wherein, the Hon'ble full Bench of this Court observed that in all cases of Khulla divorce, it is not the legal requirement to pass the decree on return of dower or benefits received by the wife at the time of Nikah/Marriage, while deciding such a question, the Court must inquire about the financial status of the wife and also that if she would be burdened to return the dower or the benefits received by her. We have also to see that in case of the condition attached to the divorce, as return of the benefits received by the wife whether she will not go for immoral and unlawful means to collect the money to pay for dissolution of marriage? In this regard, there is reported precedent of this Court as well as the Hon'ble apex Court, the marriage can be dissolved without payment of dower, reference made to a case titled Muslim Sher v. Mst. Qudrat Bibi and another, reported as PLD 1984 Peshawar 91, the relevant para 12, reproduced as under:-- "There was made a reference of NLR 1982 AC

623. It was an Intra-Court Appeal. Wife had sought dissolution of marriage on grounds of non-maintenance, cruelty and `khula'. The Family Court decided issues of cruelty and `khula' against her while on issue of non-maintenance, the Court held that the husband had failed to maintain her for a period of two years and consequently, granted her a decree for dissolution of marriage. Husband filed a writ petition which was heard by a single Judge who dismissed the writ petition. An Intra-Court Appeal had also failed. It thus comes that if a decree for dissolution of marriage can be maintained on any one ground in the present case on the ground of non-maintenance, the same will not be assailed in writ jurisdiction simply because that the Judge Family Court failed to determine the benefits received by the wife as consideration of marriage and to order partial or total restoration thereof in case of dissolution of marriage on the additional ground of 'khula'."

9. In view of the above legal position, the judgment and decree passed by teamed trial Court not suffering from any legal defect, muchless the jurisdiction error, therefore, maintained.

10. This petition being without substance and not supported by any provision of law, thus, dismissed in limine. H.B.T./87/P???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.