1988 PLP 427 (MLD)

2. The parties were admittedly married on 7‑5‑1959. Respondent No. 1 filed suit for dissolution of marriage on 18‑12‑1983 on the ground of maltreatment and Khula.

3. On the pleadings of the parties the learned Family Judge framed the following issues:‑ (1) Whether the Defendant has maltreated the Plaintiff? (2) Whether the Plaintiff is entitled for Khula? If so, on what consideration? (3) What should the decree be?

4. However, at the time of arguments learned counsel for the Plaintiff/Respondent did not press the issue of maltreatment. The learned Family Court Judge dissolved the marriage of the respondent No. 1 by way of Khula, but did not award any compensation/consideration to the Petitioner. Admittedly the dower was fixed at Rs. 2,500 which was not paid by the petitioner to the Respondent No.

1. It is also admitted that during the subsistence of marriage the petitioner gave by way of gift a house and a TOYOTA car to respondent No. 1.

5. The main contention of the learned counsel for the petitioner is that the learned Family Court Judge could not have granted the divorce by way of Khula without directing respondent No. 1 to return the benefits that she derived from the marriage. His main grievance is that the respondent No. 1 should be directed to return the house and the car to the petitioner. It appears that this plea was raised before the learned trial Court. The learned trial Court has not discussed the question of return of the car, but with regard to the return of the house, the learned Family Court Judge has observed that the house was gifted by the petitioner to the respondent No. 1 which could not be revoked and reliance has been placed upon Section 167 (2) (a) of Mulla's Mohammadan Law.

6. I have heard the learned counsel for the parties and also perused the documents which arc mostly certified copies of evidence in the family case. As pointed above ,most of the facts are admitted.

7. The leading case in which the principle on which divorce by way of Khula can be granted and the terms on which such divorce could be granted, have been discussed, in the case of Mst. Khurshid Bibi v. Baboo Muhammad Amin (P L D 1967 S C 97). Their Lordships held "Marriage among Muslims is not a sacrament but a civil contract. Man and woman are on equal footing in respect of rights of one against the other. If husband is given right to divorce wife, latter is too entitled to separation by means of Khula'. The relevant observations of their Lordships with respect to the question involved in this petition are at page

121. Their Lordships have considered the question as to on what terms such a decree should be granted to the plaintiff in the case. It is observed "though, according to the Hadaya, it is abominable on the part of the husband to have more than the dower itself, in a case of separation by Khula', yet if he insists, it is legally permissible for him to demand something more than the dower, and to the extent that he might have been out of pocket, in respect of gifts, given to the wife on marriage, he may, in law, demand restitution. This would necessitate an enquiry into the facts and the final decision as to what compensation must be paid by the wife for her relief, must rest with the Court.

8. Reliance is also placed on a Division Bench decision of the High Court of Baluchistan in the case of Aali v. Additional District Judge, Ouetta (1986 CLC 27) wherein it was held that "a wife claiming Khula' is obliged to return articles or compensation in respect thereof received by her from her husband on account of marriage and also refund the cash amount received by her, but there was no legal obligation to pay compensation in addition to the above items". Reliance is placed on a case reported in 1987 CLC 57, wherein a learned Single Judge of the High Court of Azad J & K has held "the question of restoration of properties in lieu of Khula' would be determined m the light of over all considerations leading to the separation of parties.

9. The evidence of respondent No. 1 shows that she is living separate from her husband since 24‑12‑1983. The decree of divorce by way of Khula' was awarded to her by the learned Family Court Judge on 13‑12‑1986 Thus for three years the parties remained separate from each other and therefore, (lid not perform their marital obligations and apparently no reconciliation was effected between the parties during this period of separation. She has further stated that she was not ready to live with the defendant petitioner at any cost and she had hatred for the defendant petitioner.

10. Divorce by way of Khula is granted by a Qazi only when he comes two a finding that the parties can no longer live within the limits prescribed by Allah. In the aforesaid case of Mst. Khurshid 13ibi their Lordships have observed "by the phrase `Limits of Allah' according to the above cited commentators, reference is intended to the injunction regarding the performance of conjugal obligations while living together". Thus it cannot be said that the decision arrived at by the learned Family Court Judge in granting Khula' was not based on evidence on record. In the aforesaid 'case of Aali a Division Bench of the Baluchistan High Court Quetta relying upon the cases of Zulfiqar Khan Awan v. The Secretary, industries and mineral development (1974 S C M R 53iI), Abdul Rehman Bajwa v. Sultan and Others (P L D SC 522) and Masjid Committee, Tagore Park v. Rashidul Haq and others (1982 SCMR 65), came to the conclusion that "it is well settled principle of law that erroneous view on question of fact of a competent tribunal or Court, does not warrant reappraisal of evidence by the High Court in exercise of constitutional jurisdiction, as High Court cannot substitute itself as a Court of appeal".

11. I am in respectful agreement with the above view and in my opinion the decision of the learned Family Court Judge, granting Khula', cannot be interfered with by this Court in exercise of its constitutional jurisdiction by reappraisal of evidence.

12. I have already reproduced the extract from evidence of the respondent. In this context it will be helpful to reproduce observations of Mr. Justice B.Z. Kaikaus (as he then was) in the case of Mst. Balqis Fatima v. Najmul Ikram Qureshi (P L D 1959 Lah. 566) which are as under:‑ "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 Shiqaq is limited only by what is stated in the Qur'an i.e. `if you fear a breach which means that there is real discord between the parties' and in the case of Khula' by the words `if you fear that they will not observe the limits of God'. While effecting separation, the Qazi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife.

13. Coming to the question of restitution of benefits received by the respondent, it may be pointed that as held in the case of Mst. Khurshid Bibi the final decision as to what compensation be paid by the wife as relief must rest with the Court, viz. the Family Court. The respondent No. 1 has deposed in her statement that she forgoes her dower for consideration for Khula' which still remains unpaid and also the maintenance. There is no evidence that dower was paid to her.

14. As pointed above the only worry of the petitioner is to get back the house and the Car. While ordering the restitution of the benefits received by the wife, the Judge has also taken into consideration the reciprocal benefits received by the husband and continuous living together may also be considered as benefits received. Admittedly the respondent No. 1 lived together with the petitioner for more than 20 years. Apart from performing her marital obligations for twenty years, she must also have worked as Housekeeper and coos for the petitioner and as stated by the learned counsel for the petitioner, she has born him two children, one son and one daughter, who are grown up. Thus the respondent also assisted the petitioner in bringing up the children which can also be considered as benefits. In his evidence before the Family Court the petitioner has stated that due to love and affection in November, 1982 he gifted a TOYOTA Car to his wife. He states to have purchased the house on 19‑1‑1964 and renovated it and then gifted the house to his wife in December, 1982. These two gifts/benefits cannot be strictly considered to be given by the petitioner to his wife as consideration for the marriage, but can be considered as compensation for the benefits that he got from the marriage for 20 years prior to the gifts. Though the judgment of the learned Family Court Judge is not clear whether for that reason he did not order restitution of the Car and house to the petitioner, but apparently that might have weighed with the learned Family Court Judge when he declined to order restitution of these two properties to the petitioner.

15. I am unable to find Section 167 (2) (a) of Mohammadan Law by Mulla, whereby gift by husband in favour of wife cannot be revoked. Be that as it may, the fact remains that admittedly respondent No. 1 acquired her rights over these two properties by way of gifts which right cannot on the principle of equity be taken away from her by the Court in a summary manner by ordering the restitution of the same to the petitioner as compensation for Khula. However, the learned Family Court Judge has left it open to the petitioner to move civil Court for revocation of gifts or restitution of the said properties by filing a separate suit, wherein after the parties are given opportunity to lead evidence, the competent Court of law will be able to decide as to under what conditions and for what consideration the said properties were gifted by the petitioner to the respondent and whether such gifts could be validly revoked and the properties could be restored to the petitioner.

16. Strictly speaking it cannot be said that no compensation has been received by the petitioner while his marriage was dissolved by way of Khula. As pointed above, respondent No. 1 has forgone her right of dower of Rs. 2,

500. She has also given up her right of maintenance before and after Khula admittedly she has been living separately from the petitioner for three years before the dissolution of the marriage. She states that she did not receive any maintenance from the petitioner during this period. The petitioner in his evidence has stated that he used to give maintenance to her, but again he changed his statement and stated that he used to pay to the children and finally admitted that there was no documentary evidence of payment of any maintenance. According to Fatawa‑e Alamgiri Vol. V, page 747, the respondent was also entitled to maintenance for the period of Iddat even after dissolution of marriage by way of Khula. The respondent No. 1 has also given up her this right. Keeping in view all the facts and the circumstances discussed above, I do not find any ground for interference with the impugned order and dismiss the petition with no order as to costs. AA./M‑477/K Petition dismissed.