1997 PLP 691 (MLD)

By this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, Gul Muhammad has challenged the judgment passed by learned 1st Senior Civil Judge and Family Judge, Larkana, which was passed on 23‑2‑1994 on a suit for dissolution of marriage filed by his wife Dr. Fahmida. The marriage of the couple had been dissolved by the impugned judgment.

2. In nutshell, the facts of the case are that the petitioner Gul Muhammad used to maltreat his wife and had made her life miserable and had also driven her out of his house, forcing her to go and live with her parents. The petitioner had failed to provide her with maintenance and perform the marital obligations, and on account of his cruel attitude, the relationship between them was highly strained. Dr. Fahmida could not live within the limits prescribed by Almighty Allah in the bondage of marriage with Gul Muhammad, as she had developed hatred and aversion against him. She invoked the right of Khula' for dissolution of her marriage with Gul Muhammad, which was found substantial by the Family Court and marriage was dissolved.

3. The petitioner in the written statement had denied the allegations and claimed that he had paid a sum of Rs.40,000 to the parents of the wife as a consideration of the marriage.

4. The Family Court framed the relevant issue on the point of the payment of Rs.40,000 as marriage consideration by the petitioner, to the respondent.

5. After both parties led their evidence before the Family Court, the suit was decreed and the marriage was dissolved. The Family Court did not order the respondent to pay any thing to the petitioner in return, as the consideration for marriage was not proved by the petitioner by evidence before the Court, nor the same was admitted by the respondent.

6. The petitioner Gul Muhammad has challenged this judgment by filing this Constitutional petition before this Court on 26‑6‑1994 and today while arguing this petition, the learned counsel stressed that the main point on which he considers the judgment of the learned Family Judge to be against the provisions of law is that although the Family Court has dissolved the marriage on the ground of "Khula", but has failed to order the return of the benefits which were acquired by the wife from the husband. The learned counsel therefore, led much stress on this point and cited case‑law on the point that where the consideration of marriage had not been returned, it was held that the Khula' could not be allowed. The learned counsel for the respondent did not dispute the principle of law that benefits or consideration of marriage received by the wife had to be returned to the husband when the wife was found entitled to Khula', but has pointed out that in this case issue was specifically framed, but since the petitioner failed to prove by evidence the payment of consideration, therefore, under the circumstances it was not necessary for the Family Court to order return of anything.

7. I have gone through the evidence and also considered the arguments advanced by the learned counsel in Court, I do not find that the finding of the trial Court on the. issue of payment of marriage consideration suffers from any .illegality. It was admitted by the learned counsel for the petitioner that apart from the word of the petitioner no other evidence was led from petitioner side to prove this fact.

8. The petitioner had pleaded that he had paid a sum of Rs.40,000 towards the consideration of marriage to the parents of Mst. Fahmida. The burden to prove the payment of Ps.40,000 was to be discharged by the petitioner himself as Mst. Fahmida had denied the receipt of Rs.40,000 towards the marriage consideration. The petitioner in order to discharge this burden examined himself. The word of the petitioner was denied by the respondent. The learned Family Judge, therefore, rightly came to the conclusion that the petitioner had not proved by evidence the payment of marriage consideration, to the parents of the respondent, as his word was countered by the word of the respondent, and, therefore, payment was not proved by the petitioner.

9. Under these circumstances, I do not find anything wrong with the Family court judgment on the issue of payment of consideration of the marriage. No doubt it is incumbent on the wife to return the benefits and the consideration received by her marriage at the time of getting the Khula', but the proof of the payment of the marriage consideration and other benefits has to be furnished by the husband before the Court and if there is no proof of the payment of such consideration of marriage and the Family Court comes to the conclusion that the wife is entitled to Khula', the marriage could be dissolved on the ground of Khula', without awarding any amount as return to the husband, only because no such proof was laid before the Court.

10. In view of all above consideration, I do not find that judgment of the Family Court suffers from any illegality, and, therefore, dismiss this Constitution petition with costs. A.A./G‑16/K?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.