P L D 1990 Lahore 71 (PLP)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order of Rana Zahoor Ahmad, Judge Family Court, Faisalabad dated 111‑6‑1988 which has been affirmed in appeal by the learned Additional District Judge, Faisalabad on 19‑6‑1989.

2. On .2‑6‑1983, petitionerMst. Sarnia Akbar was married to Muhammad Zubair respondent. Unfortunately, the spouses fell apart and on' 22nd May, 1986, the petitioner riled a suit~ against respondent No.1 for dissolution of marriage, inter alia, on the basis, of Khuja., On 13th July, 1987, the Family Court Faisalabad, dissolved the marriage only on the ground of Khula and while passing the decree directed the petitioner to return golden ornaments weighing 20 tolas which she had been given as gift at the time of marriage by the respondent. Dissatisfied with the direction regarding return of benefits, the petitioner riled an appeal which was heard by Mr. Zia ur Rehman, Additional District Judge, Faisalabad, who affirmed the finding that the respondent had given 20 tolas of golden ornaments at the time of marriage to the petitioner which she was bound to return but it was. observed that the decree for dissolution could not be made. dependent on the return of benefits and the direction in this regard created a civil liability for which the, respondent could have. recourse to law. The decree, Of the family Court was accordingly modified. Thus, ended the first round of litigation between the parties.

3. This Constitutional petition arises ‑out of the proceedings taken by the respondent for recovery of 20 tolas of golden ornaments or price thereof through the 'process of execution of ‑the decree passed in the' suit for dissolution of marriage, by riling an application before the Family Court.' An objection, was raised by the petitioner that the decree of the trial Court stood modified by the Addl. District Judge‑ and the direction regarding return of benefits was not executable. This objection was, however, repelled I and the learned Judge proceeded to direct the petitioner to deliver 20 tolas or equivalent thereof in money to the respondent. Aggrieved by 'this decision,‑ the petitioner filed an appeal which has, however, been dismissed by the learned Addl. District Judge, Faisalabad‑on 19‑6‑1989. Hence this petition.

4. The question which now falls for determination is as to whether the direction regarding the return of benefits can be enforced through the process of execution by the Family Court. It was contended by Mr. Hussain Muhammad Naqvi, the learned counsel for the petitioner, that the direction to return the benefits did not amount to an executable decree but created a civil liability which could only be enforced by the husband by riling a separate suit but not through the process of execution of the decree already passed. The learned counsel for the respondent, however,, contended that the direction to return the benefits was a part of the decree and was, therefore, executable. 5.There can be no dispute that while obtaining a decree for dissolution of marriage on the basis of khula', a wife is bound to return the benefits which she had derived on. account of the marriage from the husband and the Family Court is called upon to determine as to what benefits have been received by the wife A and also direct their return. However, the return of benefits is not a condition precedent to the dissolution. The decree of dissolution on the basis of Khula' even though made conditional upon return of benefits, operates to dissolve the marriage when it is passed and its effect is not postponed till the benefits are returned, The direction to return in the benefits creates a civil liability. In Dr. Akhlaq Ahmad V. Mst. Kishwar Sultana and others (PLD, 1983 SC 169) while relying upon the case of Moonshee'Buzul‑ul‑Raheerb v. Luteefutoon Nisa (8 Moore's Ind. App. 379) it was observed that non‑payment of stipulated consideration of Khula' does not invalidate the dissolution of marriage but only creates civil liability with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself. It is thus clear that though dissolution of marriage is not affected by the non return of benefits Still, a. civil liability is created by the decision of the Family Court in this behalf.

6. The question, therefore, which arises for consideration is as. to whether the husband should be forced to file a civil suit for the recovery of the benefits. The answer, ‑in my view, has to be in the negative. The return of benefits is the consideration for grant of Khula and, therefore, it would be anomalous that while a part of. the decision operates to dissolve the marriage, the husband should be left to have the other part enforced by filing a civil suit though the meant stands determined by the Family Court. It is to be seen that under section 5 of the Punjab, Family Courts Act, 1964, exclusive jurisdiction vests in the Family Courts to entertain, hear and, adjudicate upon 'the matters specified in the Schedule which, inter alia, includes the dissolution of marriage. Such a, determination by a Court of exclusive jurisdiction cannot in law, be made subject‑matter of another suit before a Court of general jurisdiction. It is, therefore difficult to accept the contention of the learned counsel for, the petitioner that a suit should be filed by the husband for recovery of benefits notwithstanding that the benefits which the wife is, required 'to return already stand determined and ascertained by the decree/decision by the Family Court. There can be no dispute that the determination regarding benefits is essential part of the decision and the decree of the, Family Court. In, the celebrated case of Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 S C 67) it was observed that the Court trying the suit for dissolution of marriage was under an obligation to determine the terms upon which a decree should be granted to the wife. If a separate suit was necessary for recovering the benefits there was no reason for insistence that the terms on which Khula is to be granted must be determined by the Family Court. It cannot, therefore, be argued with any success that the determination though an important and integral. part of the decision was not enforceable by the Court which had passed the decree.

7. Reverting to the provisions of Punjab Family Courts Act, 1964, it is to be seen that under section 12(2), if no reconciliation is possible ' the Family Court shall announce its judgment and give a decree. Section 13 of the Act, requires ‑he Court to pass a decree in ‑such form and in such manner as may be prescribed. Under subsection (3) where a decree. relates to payment of money and the D decretal amount is not paid within the time specified by the Court, the same shall be recovered as arrears of land revenue and on recovery shall‑ be paid to the decree‑holder; subsection (4) provides that the decree shall be executed by the Court passing it or by such other Civil Court as, the District Judge may, by special or general order, direct; under subsection (5), a Family Court has been empowered to direct that any money to be paid under a decree passed by it may be paid in such instalments as it may deem fit.

8. From a bare reading of these provisions, it becomes obvious that t he direction regarding payment of money contained in the decree of the Court can be enforced by the Family Court itself. Subsection (3) provides that where a decree relates to the payment of money, it can be recovered, if‑Court so‑directs, as arrears of land revenue. There is no reason as to why this provision. should be given a restricted and narrow interpretation so as to confine its applicability only to, decrees passed in suits for recovery of money. On a plain reading these provisions apply wherever the decree relates to payment of money. The word 'relate' has been defined in 'Words and Phrases' Permanent Edition Volume 36 A at page 382, as 'to bring into association with or connection with' and is, synonymous with. the word 'refer'; to have bearing or concern; to pertain. In Blacks Law Dictionary, 5th Edition at page 1158 'relate means, to stand in some E relation; to have hearing or concern~ to pertain, to refer. The word 'relate' is thus an expression of wide connotation and brings within its ambit all decrees which concern or pertain to payment of any money. It cannot be doubted that a decree which contains a direction as to payment, is such a decree.

9. The learned counsel, however, relying upon the above cited authorities, emphasised that according to these decisions the direction regarding return of benefits creates a civil liability and, therefore, the resort must have to, a Civil, Court to recover this amount. This contention is misconceived and is based, on' misconstruction of, these judgments. The learned counsel is labouring under the impression that as. a civil liability is created, it is only the Civil Court of general jurisdiction which can direct the discharge‑of this liability.. There is no basis for such an assumption. The proceedings before the Family Court are also proceedings of civil nature, for, civil rights of the patties arc decided by it. In Hussain Bakhah v. Settlement, Commissioner Rawalpindi and others (PLD 1970 S C 1) it was observed that a proceeding taken for the enforcement of a civil right is a civil proceeding Whatever may be the source of the Court's jurisdiction invoked for 'enforcement of such a. right. It was also observed that whether a proceeding is civil or not depends on the nature of the subject‑matter of the proceeding and its object and not on the mode adopted by the forum provided for the enforcement of the right. It is, therefore, difficult for me to accept the contention of the counsel for the petitioner. Even otherwise the argument of' the learned ' counsel, if accepted would lead to multiplicity of litigation which would be against the object of law ' especially the Family Courts Act which was enacted with a view to shorten the litigation between the parties in family matters.. If the amount which the wife: is required to pay stands quantified there is no reason as to Why another suit before the Civil Court, should be necessary for enforcing the, direction for its payment.

10. It was lastly contended by the learned counsel for the petitioner that while deciding the appeal against the decree of the Family Court directing the return of benefits, the learned Addl. District Judge had modified the decree, and therefore, it cannot be executed. This argument proceeds on misreading of the judgment of the Addl. District Judge. What was observed by the, learned Addl. District Judge, Faisalabad was that the decree for dissolution of marriage between the parties had become effective from the day it was passed and the direction regarding return of benefits was a civil liability for which the respondent,, could have recourse to a. Court of law. But it was never held that a separate suit should be filed by the husband in this behalf. In view of what has been stated above, this petition has no force. it is. dismissed with no order as to costs. AA./S‑556/L . Petition dismissed.