2013 PLP 450 (CLC)

AFTAB AHMED GORAR, J.

Through this Constitutional Petition the petitioner Muhammad Yousuf has impugned the order dated 21-1-2012 passed by learned VIIIth Civil and Family Judge, Karachi West in Family Suit No.1071 of 2011 whereby he partly decreed the suit dissolving the marriage between the petitioner and respondent No.1 by way of `Khula' in lieu of dower but framed issues in respect of dower amount, maintenance and dowry articles. Brief facts of the case are that respondent No.1 Mst. Mabeeia filed Family Suit No.1071 of 2011 alleging therein that she was married to the petitioner on 24-6-2007 according to Muslim Family Law against a dower of two tolas gold valued Rs.33,000 which was paid to her by the petitioner at the time of Rukhsati but later on the same was snatched by him. Out of the wedlock respondent No.2 Baby Saima was born who is in the custody of respondent No.1. After sometime of marriage petitioner changed his attitude towards respondent No.1 and used to maltreat and torture her which she tolerated in the hope that by passage of time petitioner will mend his ways but her hopes proved fruitless. He did not properly maintain the respondents. Not only this but the petitioner also tried to kill her by throwing kerosene oil on her body but fortunately she was saved by mohalla people. Thereafter he kicked out the respondent in three clothes and she started living with her parents. According to respondent No.1, she had developed hatred for the petitioner and cannot live with him as wife. She, therefore, filed suit for Khula, maintenance and recovery of dowry articles. The petitioner contested the suit and filed written statement denying the allegations against him. The Family Court fixed the case on 23-1-2012 for pre-trial and after hearing the parties passed the impugned order, hence this constitutional petition. Learned counsel for the petitioner submitted that the trial court has failed to appreciate that respondent herself admitted that dower amount was paid to her but subsequently the same was snatched by the petitioner, as such after payment of dower the question of payment of dower stood completed and at the most respondent can file suit for recovery of the snatched amount. He further contended that where there is a dispute regarding payment of dower amount, the Family Court ought to have first decided such issue by recording evidence and then decide the question of grant of khulla. On the other hand, learned counsel for the respondents contended that as respondent No.1 has developed hatred for the petitioner, it will not be possible for the parties to live as husband and wife within the limits prescribed by Almighty Allah. He further argued that although dower amount was paid by the petitioner to respondent No.1 but subsequently the same snatched by him, as such the dower amount still remains unpaid. He averred that even otherwise restitution of dower amount is not indispensable condition for grant of khulla and non-restoration of dower and other benefit will not have effect upon the validity of the decree of Khulla. In support he relied upon the cases reported in PLD 2011 Kar. 196, 2003 CLC 587 and PLD 2006 Karachi

272. I have heard the learned counsel for the parties and perused the material available on the record. From the perusal of the contents of Family Suit No.1071 of 2011 filed by respondent No.1 it appears that in para 1 she has admitted that dower viz. two tolas gold valued Rs.33,000 was paid by the petitioner to her but later on the same was snatched. Once the dower was paid by the petitioner to respondent No.1, so far as the liability of payment of dower stood fulfilled. If, as alleged by respondent No.1, the said gold was subsequently snatched by the petitioner, it cannot be said that dower amount was not paid, however, of course, in such eventuality respondent No.1 will have a right to recover the same from the petitioner. Moreover, khulla is normally granted subject to condition that wife waives her right of receiving dower amount if she has not yet received the same and upon restoration of the same to the husband if she has already received it. However, in case there is a dispute as to whether husband has paid dower amount to wife or not, the Family Court is obliged to decide such issue after recording evidence. In the case reported as Abdul Sattar v. Mst. Kalsoom (PLD 2006 Karachi 272) which is relied upon by learned counsel respondent No. I himself, this Court has observed as under:

"Where the only relief sought by the wife in her suit is dissolution of marriage on the basis of Khula' or on any other ground and pre-trial proceedings fail between the parties, then the Family Court is bound to decree the suit dissolving the marriage where there is no dispute between the parties as to the dower amount. However, where such a dispute arises, and the wife deposits the dower amount in Court, a preliminary decree for the dissolution of marriage should be passed whereafter this issue would be decided by the Family Court upon taking of evidence. Of course where the wife does not deposit the disputed amount of dower in Court then no preliminary decree can be passed and the matter would have to be decided after taking evidence." Examining the present case in the light of above said principle, it would be seen that respondent No.1 has herself admitted that she had received the dower amount, therefore it was incumbent upon her to return the same in lieu of grant of khulla. The allegation made by her that after payment of dower petitioner snatched the same from her, cannot absolve her from the abovesaid liability because once the dower amount is paid by the husband to wife, so far as the liability of payment of dower is concerned, the same attains finality and the snatched amount/article would not be termed as 'dower amount', at the most wife will be at liberty to avail legal remedy for its recovery. It is also worthwhile to mention here that the Family Court has passed the decree for dissolution of marriage by way of khulla in lieu of Haq-mehr (Dower). Not only this, but it has also framed Issue No 1, "Whether the defendant has paid dower to the plaintiff". In these circumstances, it would have been appropriate that in the first instance Family Court should have decided this issue after recording evidence and then pass the decree for granting khulla or otherwise. The upshot of above discussion is that the case is remanded back to the Family Court with direction to first decide the issues framed in the impugned order and then pass appropriate order with regard to grant of khulla in according with law. With the above observation, this petition stands disposed of. MWA/M-167/K Order accordingly.