P L D 2007 Lahore 626 (PLP)

SYED HAMID ALI SHAH, J.

Respondent No.1, instituted the suit for recovery of dower amount to the tune of Rs.1,61,000 comprising of Rs.100,000 (Rupees One Lac) as amount of dower and Rs.60,000 (Rupees Sixty Thousands) as dowry articles, consisting of one buffalo and two calves. The petitioner contested the suit through filing the written statement, wherein the petitioner controverted the assertions of the plaint and raised various preliminary objections. Learned trial Court at the first instance struck the-preliminary issue as to the maintainability of suit but subsequently on 16-2-2004, after framing of 4 (four) other issues put the parties to regular trial. Learned trial Court, on conclusion of trial, decreed the suit vide judgment and decree dated 13-4-2004. The decree of the learned trial Court was set aside on appeal, vide judgment dated 7-6-2004, whereby learned Appellate Court remanded the case with the direction to decide the suit afresh, give finding on each issue (preliminary and others) simultaneously and separately with proper reasoning and finding with specific reference to amendment in section 10 of the Family Courts Act, 1964, through Ordinance LV of 2002. Learned trial Court, in post remand proceedings, dismissed the suit, vide judgment and decree dated 2-10-2004. Respondent No.1 assailed the judgment and decree of the learned trial Court in appeal, which borne fruit and suit was decreed partly (to the extent of amount of dower i.e. Rs.100,000). Appellate decree dated 6-1-2005, has now been assailed, in the instant petition.

2. Learned counsel for the petitioner has contended that the suit of the plaintiff for dissolution of marriage was decreed on the basis of Khula' by the Judge Family Court, Hafizabad through judgment and decree dated 15-5-2003. Learned counsel added that the marriage was dissolved on the basis of Khula' thus respondent No.1, is not entitled to claim any amount of dower. Learned counsel supported his contention by referring to proviso to subsection (4) of section 10 of the Family Courts Act, 1964. Learned counsel went on to argue that in view of the proviso, wife seeking Khula' has to restore to husband the "Haq Mehr" received by her in consideration of marriage, at the time of marriage. Learned counsel went on to argue that before the phrase also restore to the husband the Haq Mehr...." Word "shall" has been used, which makes the intention of the Legislature clear that restoration of "Haq Mehr" is mandatory and there is no "Khula" if the "Haq Mehr" is not restored to the husband or unless it is not relinquished. Learned counsel further supported his contention by referring to the case of Mst. Saleha Babar v. Basit Saleem 2005 YLR 1648. Learned counsel has submitted that decreeing the suit of respondent No.1, for Khula' without resorting to the provisions of section 10(4) of the Family Courts Act, 1964, the decree of dissolution of marriage is in excess of jurisdiction. He then referred to the case of Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37 to contend that decree in excess of jurisdiction has no sanctity in the eye of law. Such decree, can be ignored and does not require formal setting aside. Learned counsel contended that the consideration of Khula' can be amount of dower only and it cannot be any other debt. Learned counsel submitted that the above principle is based on the thought of Imam Abu Hanifa and finds specific mention in Digest of Mohummadan Law by Neil B.E. Baillie in Chapter VIII at page

306. A further reference was made to "The Hedaya" by Charles Hamilton (Page 113) where a tradition of Holy Prophet (PBUH) was quoted, regarding a woman who was advised to forego the amount of dower and "nothing more" as compensation to induce the husband to divorce her. Learned counsel referred to various pages in "Majmooa-e-Qawaneen-e-Islam" by Dr. Tanzeel ur Rehman in support of his contentious.

3. Learned counsel for respondent No.1, on the .other hand, has fully supported the impugned judgment and decree. He has submitted that the marriage was dissolved through decree of the Court, which had not been challenged in any higher forum. The judgment has attained finality in the eyes of law. Learned counsel has referred to the case of Shahid Hameed Jaujua v. Addl. District Judge, Rawalpindi and another 2002 YLR 2601 and contended that in identical circumstances, the amount of dower was granted. Learned counsel lastly contended that cases where husband is at fault, the Court can grant the decree of Khula even without any compensation at all. Learned counsel supported, his contention by making a reference to the case of Mst. Saiqa v. Addl. District Judge, Rawalpindi and 2 others 2003 YLR 70.

4. Heard learned counsel for the parties and record perused.

5. The parties have a long history of litigation. The litigation between the parties started when respondent No. 1, instituted suits in the Court of Mr. Khalid Mahmood Judge, Family Court, Hafizabad, for her maintenance and the maintenance of her child, dissolution of marriage and for recovery of amount of dower. The petitioner on the other hand instituted suit for restitution of conjugal rights in the Family Court at Sheikhupura. The litigation came to end, through a compromise inter se the parties. The parties started living together and during this period Mobeen Shehzadi (daughter) was born. Another dispute between the parties, give rise to the institution of suits, when the petitioner filed suit for restitution of conjugal rights against respondent No. 1 at Sheikhupura. Respondent No.1, instituted lis against the petitioner at Hafizabad, filed suits for recovery of maintenance for herself and for her daughter and suit for dissolution of marriage on 17-2-2003. The suit of the petitioner was transferred to Hafizabad and all the suits were consolidated. Learned Judge Family Court, Hafizabad, through a consolidated judgment dated 15-5-2003, dismissed the suit for restitution of conjugal rights, dissolved the marriage on the basis of Khula' against the consideration of relinquishment of claim of maintenance and also the expenses of delivery on the birth of Mobeen Shehzadi. The judgment and decree attained finality, it was not challenged by either party. The litigation between the parties started for the third time when the suit subject matter of this petition was filed.

6. There exists no dispute with regard to the fact that the amount of dower as incorporated in Nikahnama, Exh.P.1, is Rs.101,000 (Rupees One lac and one thousand), of which Rupees one thousand (Rs.1000) have been paid to respondent No.1 as prompt dower. The controversy inter se the parties rests on the proposition that the wife, who has sought dissolution of marriage on the basis of `Khula' is entitled to claim her dower, where the decree of `Khula' was granted on the consideration, other than the amount of dower.

7. The petitioner addressed two told arguments that according to proviso to subsection (4) of section 10 of Family Courts Act, 1964, simultaneous on failure of reconciliation, the Court has to dissolve marriage on the basis of Khula' and the wife will immediately restore back to husband the dower, received at the time of marriage. Secondly consideration of Khula' can be no other consideration except return of amount of dower. The petitioner's learned counsel has confined his arguments before me, to these questions only.

8. Khula' is provided to woman in opposition to right of divorce vested in man. The trouble, if arises from the side of woman, the man is given power to divorce her and when injury is from the man's side, the woman is given the right to obtain Khula' which she exercises, subject to restoration of dower. Dower is considered by various jurists, as only consideration and nothing beyond it. Their opinion is based on the incidence of divorce sought by Jamila wife of Sabit, Holy Prophet (Peace be upon him) advised Sabit to take back the orchid and nothing more. Hazrat Azhar Bin Marwan in this respect narrated Hadith and quoted Holy Prophet (PBUH) saying: It was so because the wife of Sabit (Jamila) was herself cause of dispute. She admitted before Holy Prophet that she had no complaint against the conduct or behaviour of her husband but decided to seek divorce, when she saw him from tent, while he was coming with his companions and found his complexion dark/black, face ugly and short in height. In this background Jamila was asked to return everything, which she received and was stopped to give anything other than what she received. Dr. Tanzeel-ur-Rehman, in book Majmooa-e-Qawaneen-e-Islam has expressed (page 576) that many jurists on the basis of Verse of Holy Qur'an: have formed the opinion that the spouse can agree to any other consideration of Khula' or they can restrict this consideration to any extent. He has also expressed that the Court can also fix the consideration of Khula', according to circumstances of the case. The extent of compensation of money, in lieu of Khula' came up for consideration before this Court in the case of Qamar Alam Sheikh v. Mst. Robing and others 1997 CLC 985 and it was held:

"The petitioner's demand for additional compensation contained in the written statement and his deposition rather militates against his bona fide. In my view the principle is that a wife can buy her freedom upon payment of compensation and in the event of mutual agreement, parties can agree upon any figure. However, once the Court is approached, the command of Shariah is very clear about the extent of compensation money. It cannot be fixed at a figure higher than the dower amount and return of benefits received by wife from her husband. However, in case fault is found on the part of husband, the Court can reduce the amount of compensation and may even grant decree for Khula' without any compensation at all. I find support for such view from the judgments in Mst. Parveen v. Muhammad Ali PLD 1981 Lah. 116, Mst. Zahida Bi v. Muhammad Masood 1987 CLC 57, Mst. Shagufta Jabeen v. Sarwar Bi PLD 1990 Kar. 239 and Dilshad v. Mst. Musarat Nazir PLD 1991 SC 779."

9. It is established from the above discussion that Court has the power to fix any amount of compensation, being the consideration. of Khula' if it is found after recording of evidence that Khula' is not claimed merely on the desire of wife but the fault of husband, is also the reason for recourse to Khula'. In other cases consideration of Khula' cannot be any consideration except the amount of dower.

10. In the earlier round of litigation the Court passed the decree for dissolution of marriage, whereby the claims of the wife as to her maintenance and the buffalo and two calves, given to her in her dowry was held to be the consideration of Khula'. The suit was decreed on 5-5-2003 which the petitioner had not assailed in appeal and has attained finality. The petitioner has not paid the maintenance, nor the buffalo and two calves were returned besides non-filing of appeal, which leads to conclusion that the petitioner has accepted the consideration of Khula', which the learned Court fixed through decree dated 5-5-2003. The decree for dissolution of marriage and quantum of consideration for decree of Khula' have therefore, attained finality. The decree, which has attained finality, any modification, by reverting to another decree cannot be made therein nor the defendant's another suit, can find fault in the decree which has attained finality. In holding so, I find support in this respect, from the judgment, in the case of Shahid Hameed Janjua (supra).

11. The condition on the wife to restore to husband the dower, received by her at the time of marriage, while seeking dissolution of marriage on the basis of Khula' according to provisos to subsection (4) of section 10 of Family Courts Act, is explicitly indicative of fact that this revision of law (brought through amendment vide Ordinance, 2002) is only meant to apply in suits in which dissolution of marriage is prayed for only on the basis of Khula'. Further in such like situation the decree is passed straightway on failure of reconciliation. This proviso is not applicable, where .the decree is not passed forthwith, on failure of reconciliation, proceedings and where the dispute cannot be resolved without recording of evidence. Proviso was introduced to absolve the Court from following normal procedure of trial and to empower it pass a decree, on failure of reconciliation, without framing of issues and recording of evidence. Word "and" used between the sentences, "If reconciliation fails, shall pass a decree for dissolution of marriage forthwith" and "shall also restore to husband the Haq Mehr" has been employed insightfully. This envisages that order for dissolution of marriage and restoration of Haq Mehr, was to be passed simultaneously. When question of dissolution of marriage is determined after proper trial then proviso, (ibid) is not applicable and Court can dissolve the marriage according to the circumstances of each case. The power of the Family Court to fix any consideration for dissolution of marriage, cannot be curtailed. The Court can dissolve the marriage on the basis of Khula' even without any compensation, when if finds that Khula' is being claimed due to the fault, on the part of husband.

12. Decree for dissolution of marriage dated 5-5-2003 has attained finality, the terms whereof can neither be altered nor modified in subsequent suit. Respondent No.1 had not foregone her claim of dower and as such she cannot be deprived of the same. The impugned decree of the lower Appellate Court, does not call for any interference, being devoid of any legal infirmity.

13. For the foregoing this writ petition is without any substance or force and is accordingly dismissed. M.H./K-27/L Petition dismissed.