P L D 2009 Lahore 227 (PLP)

SYED ASGHAR HAIDER, J.

The petitioner was married to respondent No.2 and dower (deferred) was fixed in the sum of Rs.50,

000. It is alleged that this amount was paid by the petitioner to respondent No.2 on 11-3-2003, by Cheque No.0312902, drawn on the Bank Alfalah Ltd., Faisalabad. Pursuant to execution of a compromise deed inter se the parties, dated 11-3-2003. Later a dispute again erupted, amongst them, as a consequence, thereof, respondent No.2 filed a suit for dissolution of marriage, on the basis of `Khula'. The petitioner filed a written statement pleading that pursuant to an earlier compromise, dower in the sum of Rs.50,000 was duly paid, therefore, he was entitled to the return of the same. Reconciliation proceedings, as enunciated by the Family Courts Act, 1964, failed and as contemplated by the proviso to section 10(4) the marriage was dissolved, subject to restoration of dower, a decree accordingly was passed, it has not been challenged and as such has attained finality. The petitioner filed an execution petition under section 13 of the Act pleading that section 10(4) clearly hold that dissolution of marriage is subjective to restoration of Haq Mehr, received by the wife in consideration of marriage and, therefore, the same was required to be restored to the petitioner. The Family Court did not even issue notice to respondent No.2, but simply perused the record and declined it. Aggrieved thereof the petitioner has filed the instant petition.

2. Learned counsel for the petitioner contended that the Family Courts Act, 1964, contemplates pre-trial reconciliation proceedings, with the incorporation of Family Courts Amendment Ordinance No.LV of 2002 dissolution of .marriage is dependent upon restoration of Haq Mehr received by the wife from the husband. In the present matter there is irrefutable evidence to establish that after first reconciliation, the stated amount of dower Rs.50,000 was paid to respondent No.2, thus, the Executing Court was bound under the law, to ensure the return of the stated amount to the petitioner, further shooting down the proceedings of execution of decree in a summary manner without even issuing notice to respondent No.2 is violative of section 13 of the Family Courts Act, 1964, he also referred to section 47, C.P.C. to plead emphatically that all questions relating to discharge and satisfaction of decree fall within the domain of Executing Court and are required to be determined by it alone, thus the executing court has failed in its duty by dismissing the application. To fortify his contentions the learned counsel referred to the following precedents:-- (i) Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063. (ii) Muhammad Inayat v. Ghulam Murtaza PLD 1987 Lahore 537. (iii) Tahir Farooq v. Judge Family Court and others 2002 MLD 1758.

3. Learned counsel for respondent No.2 controverted the assertions of the learned counsel for the petitioner and submitted that respondent No.2 has not received the stated amount, the amount referred to is segment of large amount of due maintenance awarded to respondent No.1, therefore, the argument for return of the same has no basis, further according to the proviso to section 10(4) of the Act, all disputes inter se the parties to this effect have to be raised at the time of pre-trial proceedings for reconciliation. But there is nothing in this context on record, because no such demand was raised by the petitioner. The decree itself is ambiguous and does not mention any amount of Haq Mehr, therefore, the execution petition was without basis and rightly dismissed. To conclude the learned counsel stated that execution proceedings are possible only when a decree contains a specific amount of dower, as contemplated by law, therefore, the provisions of section 47 C.P.C. have no applicability to the present dispute.

4. Heard.

5. Before adverting to the merits of the present matter, it is essential to elucidate that the learned counsel for the petitioner made. an offer in this court, that in case respondent No.2 makes a statement denying the receipt of Haq Mehr in the sum of Rs.50,000 he would not press this petition. In response thereto respondent No.2 appeared and denied receiving payment on account of Haq Mehr, but stated that she received the said sum of Rs.50,000 along with other payment for settlement of the outstanding payment of maintenance. The petition could be decided on the statement of the parties, but as the counsel for the parties adverted at length to a legal proposition qua interpretation of proviso to section 10(4) of the Family Courts Act, 1964, pleading that it has not been adjudicated earlier, therefore, I deem it proper to decide the matter on merits.

6. The facts narrated by the writ petitioner are admitted by respondent No.2. The only exception is as to whether payment of the stated sum of Rs.50,000 was made in lieu of Haq Mehr or was it part of settlement of maintenance. The parties have adopted divergent stances on the same, therefore, it is not possible to adjudicate the controversy in hand without recording proper evidence and providing the parties opportunity to substantiate their view point with material available. The precise proposition for adjudication is to determine the powers of an Executing Court in terms of proviso to S.10(4) ibid regarding satisfaction of a decree in case of dispute qua Haq Mehr and is it empowered under the enactment referred to above and the contentions stated, undertake this exercise, or the same has to be conducted by another forum? The Executing Court declined to entertain the execution petition, on the ground that it lacks jurisdiction in this respect and the petitioner should approach a Court of competent jurisdiction for adjudication and decision of this dispute.

7. It is in this backdrop that the controversy has to be looked into and adjudicated. From the record it is clear that parties were married much earlier and the said amount of Rs.50,000 was paid as Haq Mehr pursuant to a compromise deed dated 11-3-2003, entered into between the petitioner and respondent No.2, both parties, admit it, therefore, the dispute was settled. The decree dated 2-11-2006, passed by the Family Court reflects that the dispute erupted again and reconciliation inter se the parties failed, thus the marriage was dissolved on the basis of `Khula' (subject to return of dower amount , if received, no specific amount of Haq Mehr by respondent No.2 was incorporated in the decree). The proviso added to section 10(4) of Family Courts Act, reads:-- "Provided that notwithstanding any decision or judgment of any court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage." Therefore, right to exercise Khula by the wife is dependent upon return of Haq Mehr to the husband, but it is qualified with the words "at the time of marriage". It is not the case of either party that Haq Mehr was paid at the time of marriage, but was paid later, pursuant to an agreement and, therefore, the same does not fall within the ambit or purview of proviso to section 10(4) of the Family Courts Act, 1964 and be made basis for recovery by way of execution. In fact, the legislative intent is very clear, the incorporation of the words "at' the time of marriage" correspond with amount of dower paid and entered in column No.15 of the Nikah Nama, contained in Form II of the Muslim Family Laws Ordinance, 1961, which reads:-- "(15) Whether any portion of the dower was paid at the time of marriage If so, how much?" Thus, the process of execution of a decree passed pursuant to the above stated enactment can be initiated by the Executing Court only, if it is in consonance with the amount referred to in Column No.15 of the Nikah Nama and that too is subject, to raising of a prompt demand in the written statement and at the time of reconciliation proceedings by the husband. Reference Fazal Hussain v. Mst. Asmat Bibi and another 2002 CLC

40. Therefore, dower paid at any other time except at the time of marriage cannot be recovered through process of execution on the basis of a decree obtained in terms of section 10(4) ibid granting dissolution of marriage. Resultantly, the impugned order is unexceptionable, therefore, this petition is dismissed. M.B.A./S-10/L Petition dismissed.