2000 PLP 2015 (CLC)

‑‑‑‑(. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage on the basis of Khula'‑‑‑Unconsummated marriage‑‑‑Return of gold ornaments‑‑‑Family Court while dissolving the marriage on the basis of Khula' directed the wife to return 15 Tolas of gold ornaments received by her as dower‑‑‑Plea of the husband regarding giving of gold ornaments was inconsistent and he failed to prove the payment of dower‑‑‑Family Court relied upon a receipt produced by the husband which was not a proved document‑‑‑Validity‑‑‑Findings of the Family Court were not in accordance with law as well as evidence‑‑‑Where marriage was not consummated, the wife was entitled to half of the dower‑‑‑Decree of Khula' granted to the wife was modified to the extent that the wife would relinquish half of the portion of the dower to which she otherwise was entitled. Syed Sardar Hussain for Petitioner. Ashraf Khan Gadoon for Respondents. Date of hearing: 30th March, 2000 SARDAR MUHAMMAD RAZA, J.‑‑‑ Mst. Nargis Begum the petitioner and Zebar Shah the respondent were wedded as husband and wife through a Nikah that took place in the year 1991. Admittedly, the "Rukhsati" had not then taken place when she brought a suit for dissolution of marriage as such, dissolution of marriage through Khula' and the payment of dower consisting of 20 Tolas of gold ornaments.

2. The husband contested the suit and after holding the trial, Judge Family Court, Swat vide his judgment, dated 28‑7‑1998 granted a decree for a dissolution on grounds of Khula on the condition that 15 Tolas of gold ornaments shall be returned by the lady to the husband. The Court observed that the ornaments weighing 15 Tolas stood paid to the wife. She has filed this writ petition claiming that the learned Judge Family Court has travelled beyond his jurisdiction by imposing the condition on the lady because the dower had never been proved to have been paid.

3. After going through the record of the trial Court, the allegations of the parties, the evidence on record and the fact that the respondent already has got two wives, we are convinced that the spouses, if thrusted upon each other, would not live within the limits ordained by Almighty Allah. We. therefore, decline to interfere with the decree passed on Khula'.

4. So far as the condition imposed upon the lady is concerned, it evolves from the findings that 15 Tolas gold ornaments were given by the husband to the lady. Let us appreciate as to what is evidence in this behalf.

5. In the written statement of the husband, it is given to believe that. the dower was paid at the time of Nikah but subsequently in the evidence he has taken the stance that it was paid after the Nikah. How much time it elapsed between the Nikah and payment of dower, is not clear from the evidence. Admittedly the Nikah had taken place some where in the year 1991 but the receipt ERh.D.W.I/1 produced by the husband would indicate that he had got the ornaments on 12‑8‑1993 and thereafter had delivered the same to the father of the lady. Such stance in so many and clear words was never taken in the written statement. No reference of. receipt Exh.D.W.l/1 was given in the written statement. A perusal of the receipt would not indicate the name of the shopkeeper who signed the receipt. Today in this Court the respondent stated that it was signed by Gul Rehman but said Gul Rehman was never produced by him as a witness. The receipt was never proved and hence the payment of dower was also never proved. It is not known as to how the trial Court considered the receipt Ezh.D.W.l/1 as a proved document. The findings are not at all in accordance with law as well as evidence.

6. This was a marriage not consummated and hence the wife is entitled' to half of the dower, the payment whereof remains unproved.

7. Consequently the writ petition is accepted and the decree of Khula granted to the lady is modified to the effect that it shall be a dissolution passed on Khula' against the relinquishment of half the portion of dower to which she otherwise was entitled. Q.M.H./M.A.K./109/P Petition allowed.