2009 PLP 438 (CLC)

S. ALI HASSAN RIZVI, J.

The instant writ petition is filed against the judgment and decree, dated 18-9-2006 whereby suit of the petitioner for dissolution of marriage was decreed in lieu of ,payment of Rs.50,000 as a Zar-e-Khula which the petitioner received from the respondent as Haq-e-Mehr Moajjal.

2. The facts in brief are; that the petitioner filed there suits against the respondents; (i) suit for recovery of previous maintenance; (ii) recovery of dower articles; and (iii) recovery of dower amount of Rs.50,000 in which a compromise was arrived at. The respondent admitted the fixation of Rs.50,000 as Haq-e-Mehr. The golden ornaments were returned to the respondents whereas suit of Mst. Hamida Yasmin-petitioner for dower amount to the tune of Rs.50,000 was decreed against the respondents, thereafter, execution was filed and the petitioner was paid Rs.50,000 as Haq-e-Mehr. Later on, the petitioner filed a suit for, dissolution of marriage which was decreed on the basis of Khula subject to return of Haq-e-Mehr Rs.50,

000. Hence this petition against the judgment and decree dated 18-9-2006.

3. Argued by learned counsel for the petitioner that the petitioner has raised many grounds in her original suit for dissolution of marriage like bad character of the respondent/husband and exercise of cruelty; that she has never uttered the word "Khula" for the decree of dissolution of marriage, therefore, she cannot be deprived of her valuable right of dower and the condition imposed vide impugned judgment and decree was without any lawful authority and of no legal effect. That the circumstances of the case were different to claim of the dissolution of marriage on the basis of Khula because in the previous suits she had claimed that respondent has received amount from her for purchase of motorcycle, thus, she was awarded decree of Rs.50,000 and the same was not paid to her as dower money purely; that in the suit for dissolution of marriage the ground was cruelty and unbearable behaviour of the respondent and no where has claimed the decree of dissolution of marriage on the basis of Khula.

4. Learned counsel for the respondent has opposed all these grounds by arguing that earlier suit filed for recovery of maintenance; recovery of dowry articles and recovery of dower amount, a compromise have had arrived at, statements of both the parties were recorded and the petitioner was granted Haq-e-Mehr on her demand of Rs.50,000 which was paid by the respondent. The petitioner after lapse of few days has filed a suit seeking dissolution of marriage. She could only seek relief of decree for dissolution of marriage subject to return of the Haq-e-Mehr received as a result of compromise and to join him and allow the conjugal right.

5. Heard. After going through the material available on the record, it transpires that the petitioner has compromised in the earlier three suits filed and received Rs.50,000 as Haq-e-Mehr. Thereafter she filed a suit for dissolution of marriage on the ground that behaviour of the respondent was cruel. In the original suit for dissolution of marriage she has not expressly given her willingness to relinquish her dower which she has received in the light of compromise. In the peculiar circumstances of this case the Judge, Family Court was absolutely justified to dissolve the marriage on the ground of Khula subject to return of Haq-e-Mehr received by the petitioner in the light of compromise already arrived at. She claims that not to live with the respondent within the limits prescribed by Allah Almighty and also raised the ground of cruelty. These grounds were not taken in the previous suit filed. The situation arose when the respondent paid her Rs.50,000 as Haq-e-Mehr. The petitioner had not joined to the respondent after obtaining a decree of Rs.50,

000. Earlier decree was passed on 18-10-2005 while this suit was filed on 10-8-2006. She has not joined to the respondent after the suit decreed and even before for which period she claimed the maintenance. It is apparent that she did not allow to respondent to perform conjugal rights and insisted upon for dissolution of marriage. The peculiar circumstances makes the case that where petitioner persistently and insistently claims the decree for dissolution should have returned the amount received as Haq Mehr. She was entitled for decree only on the basis of Khula, therefore, no illegality in the impugned judgment could be pointed out resulting into miscarriage of justice exercise of jurisdiction not vested in the case. The impugned judgment and decree cannot be interfered with by exercise of constitutional jurisdiction. Dismissed accordingly. M.H./H-21/L Petition dismissed.