1992 PLP 64 (MLD)

(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑ ‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Consideration for Khula'‑‑‑Appellate Courts' judgment whereby it had burdened wife for return of jewellery which husband had allegedly passed on to wife, for the benefit of children, as a consideration of Khula` was patently passed on basis of conjecture and on proposition which was not sustainable in law‑‑‑Appellate Court's judgment was set aside and that of trial Court restored. K.B. Bhutto for Petitioner. Raja M. Irshad for Respondent No.3. Date of hearing: 1st October 1991. This petition under Artice 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by Mst. Zohra Alain, who was the wife of respondent Ahmed Bashir. Both husband and wife had separately filed suits against each other. Mst. Zohra Alam, the petitioner herein, had claimed Khula in her suit while Ahmed Bashir, the respondent No.3 herein had sought restitution of conjugal rights. Both the suits were consolidated and the XIInd Civil Judge Karachi (South) acting as a Family Judge dismissed the suit filed by respondent No.3 while he decreed the suit of the petitioner. The Family Judge by his judgment, passed on 23‑9‑1989, dissolved the marriage between the parties on the ground of Khula and directed that the plaintiff, who is petitioner in this Court, shall forego the amount of Rs. 100,000 which was the settled dower amount and return gold ornaments weighing 15 tolas to the respondent No.3 which she had received at the time of marriage as a consideration for her dissolution of marriage by way of Khula. For arriving at such conclusions in respect of consideration to be given to the husband for Khula the Family Judge relied on Nikahnama which merely indicated that amount of Dower was fixed at Rs. 100,000 and was payable on demand and ornaments weighing about 15 tolas of gold were given in marriage at that time. ' The respondent No.3 being aggrieved by the judgment filed an appeal which was accepted by the judgment passed on 23rd December, 1989 by the District Judge, Karachi (South). The appeal was filed only to the extent of payment of consideration for obtaining divorce by way of Khula as appeal on other aspect was not competent. The District Judge held that she had received an amount of Rs.100,000 as dower and jewellery worth of an amount of Rs.3,50,000 during marriage and directed return of such amounts. It is against this judgment that the petitioner has filed the present petition. Mr. K.B. Bhutto, Advocate for the petitioner mainly contended that the judgment of the Appellate Court is based on gross misreading of evidence and that there is no evidence on record which could enable the Appellate Court to reach the conclusion that an amount of Rs.100,000 as Dower was paid at the time of marriage or jewellery worth Rs.3,50,000 was received by the petitioner during the marriage. He has referred to Nikahnama (Exh.6/A) of marriage between them which clearly indicates that Dower amount was fixed as Rs. 100,000 which was to be paid on demand and gold ornaments weighing about 15 tolas were given at the time of marriage. The Appellate Court ignored such documentary evidence and relied on oral evidence as proof of such assertions. According to him oral evidence contrary to the contents of documents is inadmissible. He has further referred to written statement filed by the respondent No.3. In its last sub‑paragraph of paragraph 18, it has been clearly stated that respondent No.3 had given the petitioner gold ornaments worth Rs. 3,50,000 for keeping the same for the benefit of their children to be utilised at the time of their marriages and that the petitioner has no right to retain such jewellery with her once she is separated and stands separated. In support of his grounds he placed reliance on the cases reported in 1969 S C M R 517, 1972 S C M R 395, P L D 1987 S C 447, P L D 1977 Kar. 855 and 1988 M L D

427. Mr. Raja M. Irshad, appearing for respondent No.3, contended that this Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 will be slow to disturb the finding of fact by the Appellate Court on the basis of evidence on record and after hearing the parties. The trial Judge, in this case had held that according to the documentary evidence (Nikahnama), the respondent No.3 had not paid the amount of Dower fixed as the consideration for marriage. Document itself clearly indicated that amount was recoverable on demand. The Respondent No. 3 in his evidence and through his witnesses has claimed that such amount was actually paid at the time of marriage. The oral evidence adduced by Respondent No.3 being contrary to the contents of documents, could not be considered as such evidence would be inadmissible. The finding of the trial Judge on this point is therefore, correct. As regards the amount of jewellery received by the petitioner during the period of their marriage, the Nikahnama indicates that she had received golden ornaments weighing 15 tolas. The Respondent No.3 in his written statement claimed that he had given jewellery worth Rs. 3,50,000 during the subsistence of the marriage but again at the same time he has clarified that such jewellery was not meant for the petitioner but it was for the benefit of their children to be utilised at the time of their marriages. Although the witnesses examined by him have given contradictory evidence on the point and according to his own case as advanced through the written statement it can at best, be said that the jewellery that the respondent No.3 had given to his wife, the petitioner herein, was not for her use but for the use of their children. Such jewellery therefore was not received by her during their married life. In the case of Bilqis Fatima v. Najmul Hassan P L D 1959 Lah. 566, it was held that a wife is entitled to Khula as a matter of right if she restores what she had received in consideration of marriage and if the Judge considers that the parties will not be able to live together amicably within the limits prescribed by Allah. In the present case the petitioner has been found by the Court to be entitled to Khula and the respondent No.3 has been able to prove that he had given her gold ornaments weighing 15 Tolas and dower of Rs.100,000 settled at the time of marriage was deferred one. He further claims to have given jewellery worth amount Rs.3,50,000 to be utilised by their children. Ornaments if at all received by the petitioner from her husband for the benefit of their children cannot be taken to be the benefit received by her from her husband during their marriage. She will therefore be not liable to return such jewellery as consideration for Khula. The respondent No. 3, if he can establish that such jewellery was entrusted to the petitioner for the benefit of their children can always claim it by filing a separate suit as guardian/next friend of the minor children. In view of the foregoing reasons the judgment passed in appeal by the Appellate Court is patently passed on the basis of conjectures and on certain proposition which cannot be sustained in law. The petition is, therefore, allowed and order of the Appellate Court set aside restoring the order of Family Judge with no order as to costs. AA./Z‑171‑K Petition accepted.