1999 PLP 160 (CLC)

The petitioner and Rehmat Ali, respondent No.2 were married. In the month of June, 1996, the petitioner instituted suits for recovery of maintenance and dower. Subsequently on 9‑9‑1996 she instituted suit for dissolution of her marriage. All the three suits were contested by respondent No.2 but were decreed against him on 2‑5‑1997 through separate judgments. The suit for dissolution of marriage was decreed on the basis of Khula' with the condition that the petitioner "shall not be entitled to claim dower and maintenance in lieu of Khula'. This judgment and decree passed by the learned Judge, Family Court has been challenged in this writ petition only to the extent of making the decree conditional on not claiming dower and maintenance.

2. This writ petition was admitted to regular hearing on the plea that the benefits, which the wife has received, were not returnable, even if the marriage is dissolved on the basis of Khula', when no demand or claim is made by the husband for its return. Reliance was placed on Abdul Majid v. Razia Bibi PLD 1975 Lah.766.

3. In this case two questions arise for determination; one as to whether decree dissolving marriage on the basis of Khula' can be passed without return of benefits by the wife when the contested respondent has not made the demand for the return of such benefits; and the other as to whether the maintenance allowance is a benefit returnable as consideration for the decree of Khula'.

4. So far as the first question is concerned, in the written statement, file: by Rehmat Ali, respondent, the only averment made against Khula' was that she was not entitled to Khula'. The respondent has not thus claimed in his written statement the return of the benefits. In his statement, Rehmat Ali, respondent has taken the plea that the dower amount of Rs.75,000 was relinquished by the petitioner but the learned trial Court in the suit filed by the petitioner for the recovery of dower amount passed the decree on 2‑5‑1997 for the recovery of Rs.75,000 and gold ornaments weighing 3 Tolas holding that:‑‑ "I hold that the plaintiff has not relinquished her right to claim dower and she is entitled to recover the same from the defendant. "

5. On the other hand the learned trial Court while decreeing the suit for dissolution of marriage on the basis of Khula' held as follows:‑‑

"Relations between the parties have got strained and it is not possible for them to live together, therefore, she is entitled to Khula'. However, shall not be entitled to claim, dower and maintenance in lieu of Khula'. "

6. Vide judgment, dated 2‑5‑1997, passed in the suit for the recovery of maintenance by the learned Judge, Family Court, the petitioner was found entitled for the maintenance allowance since one and a half years prior to 24‑7‑1997 uptil the time the marriage was dissolved, at the rate of Rs.500 per month. Similarly in the suit for recovery of dower, the learned Judge, Family Court vide judgment, dated. 2‑5‑1997, passed decree for recovery of dower amount of Rs.75,000 and gold ornaments weighing 3 Tolas, but according to the judgment in suit for the dissolution of marriage the petitioner cannot recover the maintenance allowance and the amount of dower and the gold ornaments for the reasons that the marriage having been dissolved on the basis of Khula', the maintenance and dower would form consideration for the same and therefore, not recoverable by the petitioner.

7. So far as the amount of dower is concerned, this has been considered as a benefit received by the wife, which is returnable to the husband in case the marriage is dissolved on the basis of Khula' on the desire of the wife. Reference is made to the following passage from the judgment of the Supreme Court in Mst. Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97:‑‑

"The instances of Khula', which have been cited above, show that the wife has to return the benefits of the marriage and illustrates that the wife has to refund no more than what she has received, for though Jamila was willing to give more than the garden given to her by her husband, the Holy Prophet (p.b.u.h.) said: 'No, only the garden'. It is a further check on the wife's exercise of the right of Khula' that, as a general rule, she cannot retain the benefits i.e., the consideration of the marriage, the same as the husband cannot take back whatever he has given to the wife in consideration of the marriage, if he divorces her, which is a corresponding restraint on his right. Therefore, it is necessary for the Court to ascertain in a case of Khula' what benefits have been conferred on the wife by the husband as a consideration of the marriage, and it is in the discretion of the Court to fix the amount of compensation, as is indicated by the instances of Khula' cited above." Therefore, to the extent of dower, the learned Judge, Family Court appears to be correct in making the decree conditional on returning the same. However, in the suit for recovery of dower, the dower was held to be recoverable from the respondent, which the petitioner shall have to relinquish, as the decree for dissolution of marriage on the basis of Khula' was sought by her.

8. However, the maintenance is not a benefit received by the wife from the husband and, therefore, not returnable in case of Khula' because it is the duty of the husband to maintain the wife so long as she remains in the wedlock. Since it is held by the learned Judge, Family Court that respondent No.2 failed to provide the maintenance to the petitioner during the subsistence of marriage, she is entitled to recover the same in accordance with the decree passed in the suit for maintenance, which has not been challenged.

9. Accordingly, the decree passed by the learned Judge, Family Court, Okara on 2‑5‑1997 for dissolution of marriage on the basis of Khula', to the extent of relinquishment of claim for the maintenance allowance, is declared to be without lawful authority and of no legal effect. The maintenance being not such a benefit, is not returnable and accordingly the decree for the recovery of the amount of maintenance shall remain operative, unless set aside or modified in appropriate proceedings. Disposed of without any order as to cost A.A./S‑255/L Order accordingly