2006 PLP 1033 (CLC)

SYED MANZOOR HUSSAIN GILANI, J.

This appeal with leave of the Court, is filed against the consolidated judgment and decree passed by a learned Single Judge of the Shariat Court on 23-11-2004 at Kotli in Civil Appeals Nos.23 and 24 of 2004.

2. The facts giving rise to the filing of the present appeal are that respondent filed a suit for dissolution of marriage while appellant sought a decree for restitution of conjugal rights through suit filed by him. The Judge, Family Court, Kotli consolidated both the suits and dismissed the suit filed by the appellant while passed a decree for dissolution of marriage on `Khula' in lieu of Rs.55,000 payable to the appellant. Both the parties filed appeals in the Shariat Court. The appeal filed by the appellant was dismissed while the appeal filed by the respondent was accepted in the following manner:-- "For the foregoing reasons, I partly accept the Appeal No.23 of 2004 filed by Mst. Shazia Iqbal and set aside the impugned decision and decree to the extent that Muhammad Khalil, respondent herein, is not entitled to receive golden ornaments worth Rs.55,000 or a cash of Rs.55,

000. Consequently, the cross-appeal preferred by Muhammad Khalil stands dismissed."

3. The learned Advocate appearing for the appellant contended that a Court has no power to dissolve the marriage on Khula without return of the dower amount received by the wife. He placed reliance upon Verse No.229 of `Sura Baqra' of the Holy Qur'an, Mulla's Mohamedan Law, Makhdoom Hussain v. Mst. Habib Begum and others 1993 SCR 330 and Mst. Balqis Fatima v. Najam-ul-Ikram Qureshi PLD 1959 (W.P.) Lah. 566.

4. The learned Advocate for the respondent defended the decree passed by the Court below and contended that the dissolution was necessitated due to the conduct of the appellant which culminated into the order passed by the learned Judge of the Shariat Court. He contended that the spouses lived for four years and have one child out of the wedlock. According to him the appellant forcibly snatched the ornaments from the respondent in view of which the learned Judge of the Shariat Court was persuaded to order `Khula' without return of the dower money. The learned Advocate for the respondent relied upon Zohra Bi v. Muhammad Saleem and others 2005 YLR 896; Abdul Majid v. Razia Bibi and another PLD 1975 Lah. 766 and Noor Muhammad v. Judge, Family Court, Burewala, District Vehari and another PLD 1989 Lah. 31.

5. We have considered the arguments after hearing the learned Advocate for the parties and have gone through the judgments of the Courts below.

6. The learned Advocates admitted at bar that Shazia Iqbal is the third wife of the appellant after divorce of two wives. She had raised a plea before the trial Court that the ornaments given to her by the appellant were snatched but she was not able to prove it. She was also not able to prove that she was cruelly treated. However, it is established by her statement that the spouses cannot live together and cannot maintain the limits provided by the Almighty for a happy life. In the circumstances of the case the learned Judge, Family Court had rightly passed a decree of dissolution of marriage in lieu of the dower amount which she had received. The only reason given by the learned Judge of the Shariat Court for disentitling the appellant from receiving back the dower amount is that he has not claimed it in his written statement.

7. The dissolution on the basis of `Khula' is the power vested in the Court to be exercised in the cases where it is found that the spouses cannot live together and cannot maintain the limits ordained by the Almighty Allah. The marriage in such circumstances is dissolved by the Court normally on the condition of repayment of the dower amount received by the wife, unless there are compelling circumstances to withhold it and order dissolution on payment of `Khula'. It is not the demand of the husband for return of the dower money which empowers the Court to dissolve marriage in lieu of the dower amount, but the obligation of the Court to order so if the Court comes to the conclusion that husband is not at fault but wife is compelled to seek dissolution on `Khula'. There may, of course, be circumstances where the Court may direct the dissolution without return of the dower money, for example, the dissolution of a longstanding union, the destituteness of the wife to return the dower amount etc. In the case in hand, there is no such reason. As stated above the respondent voluntarily contracted marriage with the appellant knowing that he had earlier divorced two wives leaving behind children from both as admitted at bar, and she has not been able to prove cruelty etc. alleged against the appellant, hence, in the circumstances of the case the learned Judge of the Shariat Court was not right in ordering the dissolution on `Khula' without repayment of the dower amount.

8. I have no cavil with the authorities of law cited by the learned counsel for the respondent in support of his contentions but the facts of the cases were different than those which are involved in this case. In the case in hand the respondents seeks dissolution on specific grounds which have not been proved, except that it is found that the union cannot exist happily, hence, it is the respondent who wants dissolution which has to be in consideration of at least amount which she has received in lieu of `Nikah'. Same is the spirit of Verse No.229 of `Sura Baqra' and the authorities cited by the learned counsel for the appellant as well as the authority of this Court reported as Mst. Zohra Bi v. Muhammad Saleem 2005 YLR 896.

9. In view of above, by accepting the appeal, the order passed by the learned Judge of the Shariat Court is hereby set aside and the judgment and decree passed by the Judge, Family Court, Kotli is restored with costs. H.B.T./4-S.C.(AJ&K)???????????????????????????????????????????????????????????????????????? Appeal accepted.