2003 PLP 876 (CLC)

Mrs. Shaista Qaiser for Respondent No.3. Date of hearing: 25th February, 2002. This be considered as an admitted case.

2. The brief facts in the instant writ petition are that respondent No.3 filed a suit for the recovery of dower amount of Rs.50,000 which was contested by the present petitioner. The issues were formulated. The evidence was produced and vide judgment and decree dated 3-5-2000 the suit was decreed. The petitioner assailed this impugned judgment and decree in appeal which too was dismissed on 26-4-2001. Prior to the filing of this suit the respondent No.3 filed a suit for dissolution of marriage against the petitioner on 27-11-1998 on the basis of Khula'. The same was decreed in her favour in lieu of dower on the basis of Khula' and a clear judgment was made by the learned Family Court Judge, that she will not be entitled to claim any maintenance or dower amount from; the petitioner. The petitioner has assailed the impugned judgments in .the; instant writ petition.

3. The precise arguments advanced by the learned counsel for the petitioner are that the suit for dissolution of marriage was decreed in favour of respondent No.3 and it was a speaking judgment clearly directing respondent No.3, the plaintiff of that suit, that she will not be entitled to claim any, maintenance or dower amount. No appeal was filed against that judgment by either side, therefore, the same attained finality. The learned Courts below while granting decree for dower has committed not only a material irregularity but also committed error of jurisdiction.

4. Learned counsel for the respondent admitted that no appeal was filed against the judgment and decree passed in a suit for dissolution of marriage but since the copy of the judgment in the suit for dissolution of marriage was not produced before the learned Courts below, therefore the learned Courts below while granting decree for dower amount were not aware that the marriage is dissolved on the basis of Khula' in consideration of dower amount.

5. I have heard the learned counsel for the parties and have perused the record.

6. I am not convinced by the arguments advanced by the learned counsel for the respondent, as it is very much clear in the pleadings of the parties that respondent No.3 has filed a suit for dissolution of marriage while the petitioner has filed a suit for restitution of conjugal rights. It is also mentioned in the impugned judgments of the learned Family Court Judge as well as the learned Appellate Court that the petitioner argued that the respondent/plaintiff was disentitled to dower amount as she had sought divorce on the basis of Khula' in lieu of dower. Both the learned Courts below while deciding Issue No. 1, whether the plaintiff was entitled to dower amount, have neglected this material fact and just relied on the condition in Column No.17 of Exh.P.1, the Nikahnama. Even otherwise respondent No.3 did not come to this Court with clean hands as she was very much aware that the marriage stood dissolved by the decree of the learned Family Court Judge, where a speaking direction was given to her not to claim any dower amount or maintenance, therefore, the dower amount is a consideration of Khula while the maintenance allowance is not but respondent No.3 did not challenge this judgment and this judgment was binding upon her. Both the learned Courts below were under duty of law to decide the issue of law whether they could grant the decree for the recovery of dower amount when respondent No.3 had forgone the same in lieu of Khula' in a competent Court. Therefore, I accept this writ petition and set aside both the judgments and decrees of the learned Courts below.

7. No order as to costs. M.B.A./N-288/L????????????????????????????????????????????????????????????????????????????????? Petition accepted. ?