P L D 2007 Lahore 423 (PLP)

SYED ZAHID HUSSAIN, J.

On a suit for dissolution of marriage the learned Judge Family Court, Islamabad granted decree for dissolution of marriage on the ground of `Khula' subject to return of benefits i.e. Haq Mehr received by respondent No.1. This was vide judgment dated 14-12-2002 which was assailed by respondent No.1, to the extent of return of dower money and her appeal was accepted by the learned District Judge, ,Islamabad on 9-2-2004. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the appellate judgment is sought to be assailed by the petitioner. The learned counsel for the parties have been heard. What stands out from the material on the record is that respondent No.1, had expressed her extreme aversion, incompatibility, hatred and impossibility to live as husband and wife within the limits prescribed by Allah Almighty. The Family Court was thus absolutely justified in granting her decree for dissolution of marriage on the ground of `Khula'. The question however, is whether she was liable to return the dower money. The appellate Court has interfered with the order of the Family Court, on his view that "the dower in its essence is not a benefit which could be restored to the husband in consideration for the grant of Khula' divorce". He accordingly modified the judgment of the Family Court to the extent of return of dower in lieu of Khula'. It may be observed that from Abdul Majid v. Razia Bibi and another PLD 1975 Lahore 766 and Mukhtar Ahmad v. Mst. Ume Kalsoom and another PLD 1975 Lahore 805, the principle deducible is that a husband is entitled to the return of benefits received by the wife from him when the marriage is dissolved on the ground of Khula'. It is also settled through the precedents that the husband should insist for the return of the benefits, which include the dower. Even in Mst. Khurshid Bibi v. Bahoo Muhammad Amin PLD. 1967 SC 97 which is being followed in subsequent cases such as Abdul Rahim v. Mst. Shahida Khan PLD 1984 SC 329 it was observed that "the pleadings of the parties show that the dower, whatever its amount was, had not yet been paid to the wife. She merely express her willingness to relinquish her dower, but the husband said, he was not agreeable even, on this condition, to grant her Khula'. He did not plead that he had actually paid her the dower. Though, according to the Hedaya, 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, ". It is thus discernable that dower is also a benefit which the wife is liable to return for the decree of Khula' if the husband insists for the same. In the instant case the insistence of the husband is evident not only from the fact that he contested the appeal before the lower appellate Court but also that he has filed the present petition. The Family Court thus was absolutely justified in granting the decree to respondent No.1, for Khula' and directing her to return the dower money. The appellate Court, however, proceeded on wrong premises in interfering with the judgment of the Family Court whose approach to the matter is untenable in law. The judgment so rendered by the appellate Court is thus not sustainable, which is declared as such. In view of the above, the petition is accepted declaring the judgment of the appellate Court as of no legal effect. As a result, the judgment of the Judge Family Court, Islamabad dated 14-12-2002 will stand restored. No order as to costs. F.B. /I-14/L Petition allowed.