1982 PLP 1586 (CLC)

This second. appeal has been filed against tire judgment and decree passed by the learned District Judge Hyderabad setting aside the judgment and decree passed by the Civil Judge in a suit filed by the appellant for recovery of Rs. 5,000 being the dower debt. The appellant was married to the respondent on 4th November, 1961 but it seems that from the very inception of the marriage differences arose between the parties and ultimately to 1962 the appellant filed a suit for dissolution of marriage and recovery of dowery amounting to Rs. 2,

600. The main ground for the suit for dissolution of marriage was cruelty, respondent's failure to maintain the appellant and fulfil the marital obli gations. The respondent put up the defence that there was no valid marriage between the parties as the marriage was brought about by fraud. It was alleged that before the marriage a girl of 18 years was shown to the family members of the respondent but at the time of marriage the appellant was wedded who according to the respondent is infirm, sick and an old lady of about 48 years. The respondent also pleaded that the marriage has not been consumed between the parties although it was admitted that they resided in the house of the respondent together for about 16 days. After considering the evidence produced by the parties the learned Civil Judge granted decree for dissolution of marriage by way of Khula and further ordered that as the appellant had left with the respondent flowery valued at Rs. 2,500 given to the appellant by her brother, the same should be returned by the respondent. However, as the dowery of Rs. 1,600 given by the respondent was also left in the house of ‑the respondent the appellant was not required ‑to pay any amount to the respondent 'and finally it was ordered as follows "1, therefore; decide that the plaintiff is entitled to claim. divorce by Khula and grant her the decree of dissolution of marriage without payment of any consideration." This judgment was not challenged by the respondent. After sometime the appellant filed a suit for recovery of Rs. 5,000 being the dower debt. It is an admitted position that in Nikahnama the deferred dower was fixed at Rs. 5,

000. The respondent in his defence pleaded the same facts he had submitted in the earlier suit and further stated that as the divorce has been granted by way of Khula he is not liable to pay the dower debt. The learned trial Court on consideration of the evidence decreed the suit which has been set aside by the learned Ist Appellate Court mainly on the ground that while granting Khula the wife is required to return all benefits and the dower being one of the bene fits it was liable to be returned and, therefore, no decree for dower debt can be passed. Mr. Abdul Matin the learned counsel for the appellant has challenged the judgment and decree passed by the first appellate Court and has mainly contended that the divorce was granted by the Court on terms and condi tions mentioned therein which has become final and, therefore, it was not possible to put any further condition by the learned appellate Court. It is an admitted position that the marriage was dissolved by judgment and decree passed by the Civil Judge, which was not challenged and has become final. Under Muslim Law Khula is granted by the Court: It is at the time of granting a decree for Khula the Court is empowered to put terms and conditions on the parties and order the wife to return all such benefits which in the opinion of the Court the wife has received and which in the facts and circumstances of the case it is just to return to the husband. The law relating to Khula has exhaustively been dealt with in various judg ments of our Superior Courts, where all aspects including the present controversy have been authoritatively expounded. Suffice to refer to P L D 1959 Lah. 565 ; P L D 1967 ; S C 97 P L D 1972 Kar. 540 ; P L D 1975 Lah. 615 766 ; P L D 1977 Kar. 855 (5) ; P L D 1978 Lah. 1109 ; P L D 1979 Lah. 414 ; P L D 1981 Lah. 116 and 1981 C L C

68. In the case of Mst. Bilqis Fatima v. Najmul Ikarim Qureshi (P L D 1959 Lah. 566) the following observations were made which may be relevant for the present controversy "Let me review the argument in brief and state my conclusions. The only proper interpretation of the verse relating to Khula is that Khula depends on the order of the judge and not on the will of the husband. That is the implication of the words "If you fear" being addressed to the judge, for the head of the state. The judge ought to grant Khula` if he finds that "they will not observe the limits of God". Contemporary opinion is unanimous on this interpretation: As regards the verse relating to Shiqarq the clear implication of "arbiter" is that there is power to order separation and the verse does not contemplate an attempt at reconciliation alone. So far as the power of the Qazi is concerned, there does not appear to be any dispute that he will be able to separate the parties in case of Shiqarq. This would appear from the quotation from the Umdatul Qari. Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received. The jurisdiction of the Qazi to dissolve a marriage in case of Shiqarq is limited only by what is stated in the Quran, i.e. if you fear a breach" which means that there is real discord bet ween the parties, and in the case of Khula by the words " if you fear that they will not observe the limits of God." While effect ing separation, the Qazi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife." The rule expressed in this case was approved in the case of Mst. Khurshid Bibi v. Mohammad Amin (P L D 1967 S C 97). It was observed by the Supreme Court that "the subordinate Courts of District Judges and High Courts in Pakistan occupy the position akin to that of Qazi since they could effect a divorce on any ground on which it would be granted under the Muslim Law". Thus the Courts while granting decree for Khula make final adjustment for return of benefits by the wife to the husband and can impose conditions for grant of Khula. Applying the principles enunciated in the aforestated authorities to the facts of the present case the point which requires consideration is on what terms the Court had granted decree for dissolution of marriage and whether any condition was imposed on the appellant that she should forego her right to recover dower. The operative part of the judgment passed by the Court has been quoted above but the reasons that compelled the learned Court to pass the judgment can be appreciated from the following passage occurring in the said judgment "Issue No. S.‑The defendant has straightaway pleaded that this contract of marriage was entered with him by fraudulent means as he was shown a young pretty girl and was given an aged bride of 48 years though this statement of the defendant is not supported by the marriage deed (Exh.34) in which the plaintiff's age is recorded to be 24 years but the stand taken by the defendant that this mar riage was brought about by fraudulent means makes out a clear case of `Khula' for the wife, for the defendant is not prepared to accept her as his wife any longer which means that he is not prepared to pass the marital with her. The defendant has made a strange statement in the course of his testimony that he did not even remove the clothes of his wife on the first night for consummation for he found her to be aged and infirm and diseased and was very much afraid to be affected by some disease from her. He has gone to the extent of saying that he is prepared to keep the plaintiff in his house but he will never sleep or con summate marriage with her. The defendant had made all these strange and funny statements only to escape the liability of the heavy amount of dower which runs into lour figures of Rs. 5,

000. The defendant would have willingly given up the plaintiff if she had relinquished the dower amount for he is fed up with her and has filed a complaint (Exh. 58) against the in law of, cheating alter this suit, only with the object of compelling them to set him free from future liabilities. The defendant has actually approached the Chairman of Conciliation Court (Exh. 60) to allow him to marry again in his own interest as he was suspicious that his wife is a T. B. patient and is too old for him. The defendant has made a definite statement that he is not keen to keep the plaintiff as his wife, and, therefore, all these statements of the defendant make out a case of Khula' for the plaintiff for the rift between the parties is too serious for them to live a happy and peaceful life. The defendant has developed hatred for the plaintiff and has gone to the extent of depriving her of the sexual pleasure which brings the man and woman closer to each other. The defendant is a gentleman of obstinate nature and the plaintiff will have to pass a life ordeal with such a gentleman. His Lordship Mr. Justice Kaikaus in the Full Bench decision reported in PLD 1959 Lah ore 566 has decided that "if the Judge apprehends that the Limits of GOD will not be observed, that is in, their relation towards one another, the spouses will not obey GOD, that a harmonious married state, as envisaged by Islam, will not be possible, then the Judge will grant a dissolution." This is a case where the spouses cannot live within the limits of "Allah". ,I, therefore, grant the decree of dissolution to the plain tiff on the ground of ` Khula' but she has already left behind the dowery of Rs. 1,600 with the defendant which he bad given her in consideration. of this marriage, and. therefore, she has not to pay any thing in return for she left the benefits derived from the husband, with her husband." The circumstances set out by the learned Court in granting dissolu tion of marriage clearly establish that the demand for Khula was due to the default of the respondent. From his statement as well as from the pleading it is clear that he had gone to the extent of stating that the marriage was void and he bad refused to recognise it. A husband with this state of mind and making such allegations cannot in any circum stance live with his wife within the limits of God. The very fact that in his statement he has stated that he was prepared to keep the appellant in his house at was not prepared to discharge his marital obligations as a husband proves that the respondent was bent upon keeping the appellant in chains of marriage without discharging his obligations. It has been I brought in evidence that the respondent had filed criminal case for cheating against his in laws and further that the respondent had applied to the Conciliation Court for permission for second marriage. The respondent had pleaded in that suit that the action for Khula has been filed with a view to obtain deferred dower. A further plea was raised by him that the marriage had not been consumated. However, inspite of all these pleas the findings of the Court was against the respondent. These findings have not been challenged and are final and binding on the parties. It is thus clear that the marriage was dissolved as the respondent had exhibited deep hatred and was adamant .not to accept the appellant as his wife within the limits of God. The respondent had made no secret of these facts. The learned counsel for the appellant is justified in challenging the correctness of the observation of the Ist Appellate Court that 'it was due to. the unwillingness of the respondent herself to fulfil the conjugal duties and her desire for the divorce that she was released from marital contract in the form of Khula". How could possibly a wife reside with a husband who treats marriage a creation of fraud, is not prepared to accept her as his wife, claims her to be sick, old, infirm and suffering from tuberclosis and above all preparing for second marriage. These facts clearly indicate where the default lies. Such facts have been and should 'be taken into consideration while granting restitution and return of benefits. It is, therefore, not correct that in case of Khula ipso facto the wife should return all benefits. This has to be determined in the facts and circumstances of each case and balance has to be main tained. If a wife seeks Khula without pointing out to any default of ,q the husband and the Court considers it proper to grant a decree for Khula then the wife should be ordered to return all the benefits received by her and also forego such rights under which she can claim any benefit. However, while passing such an order the Court should take into consideration the reciprocal benefits received by the parties. In proceedings for dissolution of marriage the respondent had not made any claim that the appellant should forego her right to recover the dower from the respondent. Neither any claim of this nature was made nor any condition was put in the decree granting Khula that the appel lant will forego her right to recover dower from the respondent. The Court had granted Khula on condition of return of such benefits which are mentioned in the judgment itself. The learned counsel for the respondent has contended that as the dower was deferred no claim could have been made in those proceedings and further that the trial Court while granting Khula completely ignored the question of dower. The fact that the dower was deferred does not mean that it cannot be con sidered while granting Khula. All benefits conferred upon the wife should be taken into consideration for adjustment and restitution. It B is, therefore, obligatory on the Courts granting Khula that whether the dower is deferred or prompt it should be taken into consideration. The contention of learned counsel for the respondent is not borne out from the record as from the judgment quoted above it is clear that the learned Court granting Khula was conscious of the fact that there could be a claim for deferred dower of Rs. 5,

000. In fact the Court observed that the respondent "had made funny statement to escape liability of dower" and that he (respondent) would have willingly given up the plain tiff (appellant) if she had relinquished the dower amount". It is conclu sively proved that the learned Judge was conscious of this fact and at no stage the appellant had relinquished her right to claim dower from the respondent. Even in this background the Court did not put a condition in the judgment that she should forego the right to claim dower before granting Khula in her favour. During the trial no claim was made by the respondent to this effect. Reference is made to the case of Abdul Majid v. Razia Bibi and another (P L D 1975 Lah. 766) where it was held that "one of the condi tions for grant of Khula as enjoined by law of Islam and as held by Supreme Court of Pakistan is that if the wife has obtained any tangible returnable benefits from the husband, she should be made to return the same as a condition precedent on grant of Khula in case the husband does not forego the same but asks for their return". It was further held that "If a husband during the trial does not make any claim with regard to return of benefits despite the knowledge that the Courts have ruled that he can claim the return this conduct would show that he has not conferred any benefit or he would not seek the return thereof." While referring to the case of Mst. Khurshid Bibi it was further observed that "a demand in the nature of insistence from the side of the husband is a condition precedent for the learned trial Judge directing the return of gifts from the wife to him as a condition of Khula". Applying this principle firstly, the respondent did not make any claim for return of dower nor the appellant had waived her claim for dower and secondly, the decree passed by the Court granting Khula did not put condition that the appellant will forego her right to claim dower and, therefore, the appellant was entitled to recover dower from the respondent. In the circumstances, the judgment and decree passed by the learned appellate Court is set aside and the judgment and decree passed by the learned trial Court is maintained. The parties to bear their costs throughout. M. Y. H. Appeal allowed.