1991 PLP 1286 (CLC)

Nemo for Respondent No.2. Date of hearing: 4th March, 1991. Rukhsana Kausar petitioner was married to Mian Abdul Rauf, respondent No.1, on 15th September, 1978, against a dower of Rs.32.62. It appears that Rukhsati took place on 25th January, 1980, but unfortunately the spouses fell apart. On 22nd January, 1985, a suit was filed by the petitioner against the respondent seeking a decree for dissolution of marriage on the grounds of cruelty; non‑maintenance, misappropriation of articles of dowry and Khula. The suit was resisted by the respondent by filing a written statement which led to the framing of relevant issues on which the Family Court recorded the evidence of the parties. During the course of her statement, on 2nd January, 1986, the petitioner offered to forego her dower and maintenance, if she was granted Khula. Shealso undertook to renounce the right as to the custody of the two minor daughters. However, on 25th January, 1986, she stated that she was not willing to hand over the custody of the daughters to the petitioner. Subsequently, counsel for the petitioner made a statement that the petitioner being a lady, had not understood the contents of the statement made by her on 2nd January, 1986 and she wishes to withdraw that statement. On 16th March, 1986, the Family Court recorded the statement of respondent No.1 wherein he indicated his willingness to accept the offer made by the Petitioner for grant of Khula. Vide the impugned order, dated 25th March, 1986, the Family Court acting on the basis of the statements of the parties, decreed the suit for dissolution of marriage on the basis of Khula, in favour of the petitioner, subject to the condition that she would not be entitled to receive the dower and past as well as future maintenance. It was noted by the Family Court that the petitioner wished to withdraw her offer but the Court was of the view that she could not be allowed to do so. This decree of the Family Court has been assailed by the petitioner by riling this Constitutional petition.

2. Malik Noor Muhammad Awan, learned counsel for the petitioner contends that as the petitioner had withdrawn the offer made by her before it could be accepted by the respondent, the family Court could not act upon the same and by decreeing her suit on the ground of Khula and deprive her of her right to receive maintenance and dower. The learned counsel for the respondent, however, submitted that even in the plaint, an offer was made by the petitioner to forego dower and maintenance provided she was granted Khula and in the circumstances of the case, there was justification for the Family Court to have granted Khula conditionally.

3. In the present case, the real grievance of the petitioner is that by granting Khula, she was deprived of her dower and maintenance. As the dower admittedly was fixed at Rs.32.62 the real controversy is confined to the question of maintenance which the petitioner was directed to forego.

4. Under Section 14 of Punjab Family Courts Act, 1964, though no appeal is maintainable against the decree for dissolution of marriage, except in the case of misappropriation, that part of the decision of the Family Court, which decided the question of Zare Khula can be appealed against. It was so held in the case of Mst. Rushda Zareen v. Muhammad Saleh (P L D 1976 Lah.1327). This authority was followed in two subsequent cases by this Court, namely, Muhammad Shafi v. District Judge and another (1981 C L C 2057) and Bashira Bibi v. Muhammad Rafi and 2 others (1982 C L C 1200). From these authoritative pronouncements, it is clear that the petitioner could challenge the decision of the Family Court,? whereby she was deprived of her right to receive dower and maintenance, by riling an appeal, but as she has failed to avail of this remedy, this Constitutional petition is not maintainable.

5. Learned counsel for the petitioner, however, voiced an apprehension that the impugned order may not be. construed as depriving the petitioner of her right to retain the custody of the two minor children and their maintenance. The learned counsel for the respondent agrees that the decree passed by the Family Court has no effect on the dispute as regard the custody of the minors and their maintenance. No such clarification is, therefore, called for. As a resolve of what has been said above, the petition is dismissed, leaving the parties to bear their own costs. H.B.T./R‑289/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.