2013 PLP 487 (MLD)

SYED IFTIKHAR HUSSAIN SHAH, J.

The petitioner has assailed the legality of order dated 11-7-2012 passed by the learned Judge Family Court Mailsi District Vehari whereby she was directed to return the dower in lieu of Khula.

2. The petitioner instituted a suit for seeking decree for dissolution of marriage against respondent No.2 namely Gulshan with whom her marriage was solemnized on 22-1-2006 on the ground of cruelty expelling her from her house and depriving her from her dowry and Khula. She has further alleged that she has developed hatred in her mind against the respondent and prefers to die than to live with him.

3. The suit was contested by the respondent, allegations levelled in the plaint were denied and it was alleged that his suit for restitution of conjugal right has already been decreed in his favour and the petitioner is avoiding to live with him without any cause.

4. Learned Judge Family Court on 11-7-2012 during the pre-trial reconciliation proceedings examined the petitioner who was adament not to live with the respondent and decreed the suit on the basis of Khula and direrted the plaintiff to return the dower mentioned in the Nikahnama. Hence the present writ petition.

5. Learned counsel for the petitioner has stated that it is not absolute right of the respondent to claim return of dower in lieu of Khula and when wife is compelled to seek divorce due to ill attitude of husband then the restoration of Haq Mehr is neither necessary nor mandatory. Learned counsel for the petitioner has relied upon Muhammad Zafar v. Judge, Family Court and another (2005 CLC 1844).

6. I have heard the learned counsel for the petitioner and have also perused the record.

7. Under proviso to section 10(4) of West Pakistan Family Courts Act, 1964, in a suit for dissolution of marriage if the re-conciliation fails the Court shall pass decree for dissolution of marriage forth-with and will also restore the husband Haq Mehr received by the wife in consideration of marriage at the time of marriage.

8. In the instant case according to the copy of Nikah Nama (annexure-C) two tolas of gold ornaments were paid to the petitioner at the time of Nikah. In the case titled Muhamamd Zafar v. Judge, Family Court and another (2005 CLC 1844), the suit instituted by Mst. Shaista wife of Muhamamd Zafar seeking decree for dissolution of marriage was decreed after recording the evidence and the suit was not decreed at the re-conciliation stage. The parties had contested the suit till the last stage and the trial court has to pass the decree after the appraisal of evidence. There-after the husband Muhamamd Zafar after losing the hand of his wife through decree for dissolution of marriage by the Judge Family Court had invoked the Constitutional jurisdiction of this Court and prayed for the restoration of Haq Mehr from his wife on the basis of proviso added to subsection (4) of section 10 of the Act ibid. But in this case the suit was not contested to the last and during the pre-trial re-conciliation proceedings, the suit has been decreed in the light of proviso to section 10(4) of the West Pakistan Family Courts Act, 1964. Therefore, the case-law relied upon by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case.

9. Under proviso to section 10(4) of the West Pakistan Family Courts Act, 1964, the Family Court in a suit for dissolution of marriage, if reconciliation fails shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage. The word "shall" has been used twice, which clearly indicates that the provision of returning of dower is mandatory. There is no discretion with the Court to refuse the return of the dower and decree on the basis of Khula granted under the provisions of section 10(4) of the Act ibid is always conditional one.

10. Mst. Shagufta Bibi the petitioner was given two tolas of gold ornaments as dower at the time of her Nikah as is apparent from the copy of Nikahnama (annexure-C). Therefore, the order dated 11-7-2012 for the return of dower is in accordance with law. Resultantly, this petition having no substance is hereby dismissed. KMZ/S-138/L Petition dismissed.