1993 PLP 699 (CLC)

Date of hearing: 27th October, 1992. This order will dispose of two connected Writ Petitions No.10060 of 1991 and Writ Petition 10061 of 1991 inasmuch as they involve the common questions of facts and law.

2. Briefly stated facts of the case out of which these Constitutional petitions have arisen are that the respondent No.2 who was married to the petitioner seven years earlier and who was allegedly turned out of his house by the respondent No.l just three months thereafter, filed a suit seeking dissolution of marriage in the Court of Judge Family Court, Lahore on the ground of cruelty, misappropriation of the dowry and immoral character of the petitioner. Conversely the petitioner filed a suit seeking restitution of conjugal rights against the respondent No.2 Both the suits were resisted by the contesting defendants in each case and following consolidated issues were framed:‑‑ (1) Whether this Court lacks territorial jurisdiction to entertain the suit? OPD (2) Whether the defendant had treated the plaintiff with habitual cruelty? OPP (3) Whether the defendant had misappropriated the articles of dowry of the plaintiff? OPP (4) Whether defendant is a man of immoral character and compelled the plaintiff to lead an immoral life? OPP (5) Whether the defendant is entitled to decree for restitution of conjugal rights? OPP (6) Whether the suit for dissolution of marriage is frivolous, if so, its effects? OPD (7) Relief. Learned Judge Family Court vide judgment and decree dated 17‑7‑1991 decreed the suit fled by the respondent on the grounds of habitual cruelty and Khula` on payment of Rs.6,000 as the price of ornaments received by the respondent No.2 from the petitioner and on the condition of relinquishment of her right of maintenance. Suit for restitution of conjugal rights has been dismissed. Aggrieved by both the judgments and decrees, the petitioner has filed these two connected writ petitions.

3. Ch. Ghulam Mustafa Shahzad, Advocate appears on behalf of the petitioner in both the writ petitions. The only argument raised by the learned counsel for the petitioner is that without their being a specific ground for grant of dissolution of marriage on the basis of Khula`, learned Judge Family Court had no jurisdiction to pass a decree for dissolution of marriage. Learned counsel contends that as per statement in Mohammadan Law by D.F. Mullah, dissolution of marriage on the ground of Khula` can only be granted with the consent of the husband. In the alternative, learned counsel has argued that the petitioner shall have no objection to the grant of decree for dissolution of marriage on the ground of Khula` provided the respondent No.2 relinquishes her claim for payment of the amount of dower and claim of maintenance and further is ready to return an amount of Rs.6,p00 being the value of the ornaments. Learned counsel has argued that the learned Judge Family Court has dissolved the marriage on the ground of cruelty besides Khula` and even otherwise learned Judge Family Court had the jurisdiction to pass a decree for dissolution of marriage on the ground of Khula` even if this ground was not raised as a specific plea for dissolution of marriage in the plaint. Learned counsel states that respondent No.2 is ready to return an amount of Rs.6,000 to the petitioner and forego her claim for maintenance but she iv not ready to forego the claim for payment of dower.

4. I have considered the arguments addressed by both the learned counsel for the parties. Admittedly the marriage took place about seven years earlier and parties are living apart almost since their. They lived together only for a period of three months as is admitted by both the learned counsel. They are not previous relations. There is no issue out of the wedlock. Both the parties are aged 30 to 35 years. The litigation has reached up to the level of the High Court. Serious allegations relating to character have been levelled during the course of proceedings of the two suits. There is ample evidence on record to prove that the parties cannot live together as husband and wife within the limits of Allah and hence it cannot be said that a decree for dissolution of marriage on the ground of Khula` could not have been granted by the learned Judge Family Court. There is absolutely no bar on the power of the Qazi to dissolve the marriage if he is satisfied that refusal to dissolve the marriage will result in an unwanted and unhappy union. It is an established proposition of law that the marriage can be dissolved by the learned Judge Family Court on the ground of Khula` even if plea of Khula` is not specifically raised if the case is otherwise made out for exercise of power to dissolve the marriage. Right of seeking of dissolution of marriage on the ground of Khula` through Court has been recognized as a right equal to the right of Talaq except one difference that the wife shall have to file a suit for dissolution of marriage whereas husband can announce Talaq himself. See cases of Msk Balqis Fatimah v. Najmul Ikram Oureshi (PLD 1959 Lah. 566) and Mst. Khurshaid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97). Consequently, the judgment rendered by the learned Judge Family Court directing the dissolution of marriage on the principles of Khula` is valid in law and is not challengeable in exercise of writ jurisdiction of this Court. So far as the return of benefits is concerned, the learned Judge Family Court has already directed the return of Rs.6,000 being the value of the ornaments and further that the respondent No.2 shall not claim the maintenance. So far as the payment of the dower is concerned, learned trial Court has said nothing with regard thereto, however, I am of the view that in case the respondent Not seeks dissolution of marriage on the ground of Khula` she will also have to forego the right to recover the amount of dower. Consequently, the judgment and decree passed by the learned Judge Family Court is modified to this extent that the respondent No.2 besides returning the amount of Rs.6,000 as Zara Khula' and relinquishing her rights of maintenance shall also not be entitled to claim amount of dower. Except to the above extent, there is no fault with the judgment rendered by the learned Judge Family Court, resultantly, both the writ petitions are, subject to modification, dismissed and the judgment and decree for dissolution of marriage passed by the learned Judge Family Court is modified to this extent that besides returning an amount of Rs.6,000, the respondent No.2 shall also not claim the maintenance as well as the dower amount. Parties to bear their own costs. H.B.T./M‑678/L Order accordingly.