2018 PLP 1811 (MLD)

MOHAMMAD IBRAHIM KHAN, J.

The cause of action leading to introduction of her suit by Mst. Sawaira against her husband Muhammad Abbas for declaration of her Nikah for its annulment due to the reason of unlikeness, non-payment of dower and his cruel aptitude both on his part and by all rest of his family members. The second prayer was to recover 4 tolas golden ornaments which subsisted with the said Muhammad Abbas and being unpaid. If on account of dissolution of marriage the said Mst. Sawaira could not establish her claim for the due entitlement of her dissolution of marriage decree, then she sought it on account of Khulla.

2. The parties developed strained relations about 1-1/2 months prior to institution of the suit, while the last desire for annulment of wedlock was conveyed to Muhammad Abbas about 15 days earlier from the institution of this suit. Parties earlier maintaining cordial relations but because of the demand for the payment of dower 4 tolas golden ornaments, 2 tolas golden ornaments were given to the wife Mst. Sawaira while the other 2 tolas golden ornaments were yet to be given to her. Out of the given 2 tolas golden ornaments by the husband to his wife, it were left in the house of her husband.

3. Muhammad Abbas the husband is not a man of good character and Mst. Sawaira had developed hatred for him and for this reason these parties are not ready to live as wife and husband under the limit prescribed by the Allah Almighty, therefore, by all means Mst. Sawaira is entitled to the annulment of her Nikah.

4. This claim was resisted by Muhammad Abbas through his written statement raising various legal and factual objections. Consequent to, out of the divergent pleadings of the parties, the learned Judge Family Court framed the following issues:--

5. The parties then were given ample opportunities to produce pro and contra evidence. During the pre-trial reconciliation proceedings the parties also recorded their statement on 10.06.2017, the findings to this effect having ended on failure, Mst. Sawaira wife insists for obtaining divorce while the latter wants to maintain the relationship of husband and wife, however, regarding the dower settlement 2 tolas golden ornaments have been kept by Muhammad Abbas with another party for its safe custody and the remaining 2 tolas golden ornaments are unpaid.

6. Here are the orders impugned dated 10.06.2017 and 17.06.2017. The earlier order pertains to the title ( ) which in-fact is not the order but observation of the learned Judge Family Court, whereby the pre-trial reconciliation between the parties were arranged from 10.00 A.M to 10.25 A.M on 10.06.2017. The wife Mst. Sawaira showed her reluctance as she will not join the then husband Muhammad Abbas at any cost and insists for separation. Yet the payment of dower was also admitted by the Defendant (hereinafter called the Petitioner) that 2 tolas golden ornaments have been given to another party for its safe custody and the remaining 2 tolas golden ornaments have not been paid to Mst. Sawaira and this may be probably the reason that the pre-trial reconciliation proceledings failed. The other order dated 17.06.2017 speaks off about conduct of the Petitioner Muhammad Abbas that during the proceedings earlier he remained absent and an ex-parte decree was passed against him which was later on set aside and then onward on the one pretext and the other including his counsel being not present on the day of proceedings, the learned Judge Family Court keeping failure of the parties to reconcile. When the husband Muhammad Abbass Petitioner herein, appeared before the learned Judge Family Court and already admitted that 2 tolas golden ornaments he has given to 3rd party while the remaining 2 tolas golden ornaments have not been paid to Mst. Sawaira, the Respondent No. 1 herein, because there was no other way then it is an indefeasible right of Mst. Sawaira Respondent No. 1 for grant of decree on the basis of Khulla' thus the Nikah be annulled through decree by obtaining Khulla. Here the dower of 2 tolas golden ornaments which was placed with a 3rd party has been considered in lieu of Khulla and rest of the claim in the plaint was dismissed.

7. Then the matter was taken up before the Court of learned Additional District Judge/Izafi Zila Qazi-1 Buner in family appeal No. 10/FA, the order datdd 08.07.2017 would reveal that the learned appellate Court has questioned an interim order whether that be appealable under section 14(3) of the Family Courts Act, 1964 which neither appealable nor revisable as the impugned order was not the result of dismissal of the suit.

8. This is a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner Muhammad Abbas has impugned the observation of the pretrial reconciliation proceedings dated 10.06.2017 and the final order of declaration of annulment of the Nikah through Khulla of the learned Judge Family Court dated 17.06.2017 narrating the facts and the grounds being enumerating therein the following prayer has been set in:-- "For the aforesaid and other reasons, therefore, it is very humbly prayed that on acceptance of this writ petition the order dated 10.06.2017, where learned trial Court attributed self made and unjustified reconciliation and points of reconciliation to the petitioner and order, judgment and decree of learned trial Court dated 17.06.2017 where learned trial Court decreed the suit of the respondent No. 1 without retuning dower, without any sound mind reason and dismissed claim of the Petitioner, these both orders judgment and decree dated 10.06.2017 and 17.06.2017 may kindly be set aside and the suit may kindly be dismissed or the suit be remanded for proper evidence and proper adjudication. Any other relief which this august Court deems fit and necessary in the given circumstances of the case may also be granted, please."

9. Arguments of learned counsel for the petitioner were heard with vehemence and available record perused with their able assistance, while Mst. Sawaira, Respondent No. 1 appeared in person in support of her case.

10. Here the ultimate query is to be resolved in between the departed husband and wife their relations being ended on the ground of Khulla. The concept of Khulla has been enshrined in Verse No. 229 of Sura-e-Baqarah in the Holy Qur'an which reads as follows:

Translation: "

229. Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself. These are the limits. (imposed by) Allah. Transgress them not: For whoso transgrassed Allah's limits, such are wrong-doers." The history of 'Khula' commenced with the two oft-quoted instances of 'Khula' ordered by the Holy Prophet (s.a.w.s.). Both relate to Sabit-ibn-Qais. In the first incident his wife Jamila came to the Holy Prophet (s.a.w.s.) and stated her complaint in the following words:-- "Oh Prophet of God. Nothing can bring me and him together. When I raised my veil, he was coming from the front with some men. I saw that he was out of them the shortest and the ugliest. I swear by God I do not hate him because of any defect in him, religious or moral, but of hate his ugliness. I swear by God that if it was not for fear of God I would have spit at his face when he came to me. Oh Prophet of God, you see how handsome I am, and Sabit is an ugly person. I don't blame his religion or his morals but I fear heresy in Islam." On hearing this the Prophet of God said to Jamila: "Are you prepared to return the garden that he gave you". She said. "Yes, Oh Prophet of God; and even more". The Holy Prophet said: "No more but you return the garden that he gave you", and then the Holy Prophet said to Sabit: "Take the garden and divorce her"."

11. For the grant of Khulla which is an indefeasible right of any married woman to separate her ways leaving dower with her husband, while reconciliation proceedings were under way, by that time it was observed by the learned Judge Family Court that by all means this tie of the wedlock cannot be sustained for the abstinence of Mst. Sawaira as she had taken for granted to dissolve the marriage even if she has to return the dower amount. Here Petitioner herein had appeared before the learned Judge Family Court that it is him who had given 2 tolas golden ornaments to the 3rd party for its safe custody and the remaining 2 tolas golden ornaments have never been given to the Respondent No. 1 Mst. Sawaira. This demeanor of the Petitioner before the learned Judge Family Court was also noticed by the learned Presiding Officer of the said Court that the Defendant (hereinafter called the Petitioner) earlier was placed by an ex-parte decree which was later on set aside and during the proceedings to record evidence his counsel also did not appear and the defence version was not recorded because of the time and again proceedings being conducted without any progress. Thus when the option of annulment of the marriage on account of Khulla was a prayer in the plaint it was rightly thought off for its decree. The unlikeness of Mst. Sawaira for her husband Muhammad Abbas is apparent from her glaring attitude and besides being dragged in criminal case this may be the reason for seeking annulment to dissolve the marriage on account of Khulla.

12. It has been held in PLD 2003 Peshawar 146 " Karim Ullah v. Shabana and 2 others":-- "Divorce.. Dissolution of marriage on ground of Khulla... Court has the powers to refuse the return of the dowered property/amount to husband or to release him from payment of dower where due to his cruelty she was compelled to resort to Khulla.

13. In this case, the Respondent No. 1 Mst. Sawaira is lodged in Dar-ul-Aman on account of fear at the hands of her then husband Muhammad Abbas and then she is being frightened may not be killed by her parents, therefore, she is residing at Dar-ul-Aman for some length of time. As dower of Ms. Sawaira has never been paid to her and 2 tolas golden ornaments which were given to her at the time of marriage by her husband is kept with a 3rd party for its safe custody by the Petitioner himself under an admission and the remaining 2 tolas golden ornaments have never been paid to her. Thus, in such scenario, this petition has got no force, which is hereby dismissed. MQ/258/P Petition dismissed.