2017 PLP 149 (YLRN)

M. TABASSUM AFTAB ALVI, J.

The supra titled appeal has been preferred against the impugned judgment and decree of Civil Judge, empowered as Judge Family Court, Sehnsa, dated 30.06.2015, whereby, a decree for dissolution of marriage on the ground of 'Khula' was passed in favour of Mst. Nazmeen Akhter, appellant-plaintiff, with the condition to return dower amount to respondent-defendant. However, the other two suits; one filed by appellant-plaintiff for maintenance allowance and the second filed by respondent for restitution of conjugal rights were dismissed.

2. The precise facts culminating into filing of the instant appeal are that Mst. Nazmeen Akhter, appellant-plaintiff, filed two suits; one for dissolution of marriage and the other for maintenance allowance against respondent-defendant, before Judge Family Court, Sehnsa, on 16.08.2014. The respondent-defendant, Lal Khan, also filed a suit for restitution of conjugal rights before the said Court on 10.11.2014. The suits were resisted by patties through filing written statements. The learned trial Court framed issues in light of pleadings of the parties on 03.2.2015. The aforesaid suits were consolidated and the learned Judge Family Court, after due process of law recorded evidence of the parties. The learned Judge Family Court, after conclusion of trial and hearing arguments passed a decree for dissolution of marriage on basis of 'Khula', against consideration of dower amount, in favour of Mst. Nazmeen Akhter, appellant-plaintiff, however, her other suit to the extent of maintenance allowance was dismissed, whereas, the suit filed by Lal Khan, respondent defendant, for restitution of conjugal rights was also dismissed, vide impugned judgment and decree dated 30.05.2015; hence, the instant appeal.

3. Sardar Zaffar Iqbal, the learned Counsel for appellant vigorously contended that the learned Judge Family Court, Sehnsa, committed grave illegality while dismissing the suit for maintenance allowance and passing the decree for dissolution of marriage against consideration for dower amount. He further submitted that Court below misread the evidence and did not appreciate the same, pertaining to cruelty committed by respondent-husband, in its true perspective. The learned Counsel pointed out that appellant proved her case for maintenance allowance, however, the learned Judge Family Court, wrongly dismissed the suit; therefore, while accepting the appeal, a decree of maintenance allowance may be passed in her favour. He further contended that the condition imposed by the learned Judge Family Court, in the decree for dissolution of marriage, regarding returning dower amount/ornaments, may be struck down, as after sometime of marriage, the ornaments were snatched away from appellant, hence, craved for acceptance of appeal. In support of his arguments, the learned Counsel cited a case titled Mst. Iqra v. Abuzar (2012 YLR 1488).

4. Conversely, Raja Nadeem Ahmad, the learned Counsel for respondent, strenuously contended that the learned Judge Family Court, committed error while dismissing suit of his client for restitution of conjugal rights. The learned Counsel however, maintained that it is settled law that when a decree on the basis of 'Khula' is passed in favour of wife, then she has to return everything received at the time of marriage; therefore, the trial Court did not commit any illegality while imposing condition in the impugned judgment and decree that appellant shall have to return dower amount/ornaments to respondent-defendant. He further argued that when appellant-plaintiff left house, respondent was abroad, who had been sending her maintenance allowance, so, cruelty could not be proved by her; therefore, the learned Judge Family Court, correctly dismissed the suit for maintenance allowance. The learned Counsel submitted that the decree for dissolution of marriage on ground of 'Khula', as passed by the learned Judge Family Court, may be maintained. He in support of his arguments cited the following case law:-- i. Mst. Zaibun v. Mehrban (PLD 2004 SC (AJ&K) 25). ii. Dr. Fakhr-ud-Din v. Mst. Kausar Takreem and another (PLD 2009 Peshawar 92).

5. After hearing arguments of the learned Advocates for parties, I have gone through the record made available with utmost care.

6. As per facts of the case, Mst. Nazmeen Akhter, appellant-plaintiff, filed two suits; one for dissolution of marriage and the other for maintenance allowance against respondent-defendant, before Judge Family Court, Sehnsa, on 16.08.2014. The respondent-defendant, Lal Khan, also filed a suit for restitution of conjugal rights before the said Court on 10.11.2014. The 1earned Judge Family Court, after conclusion of trial and hearing arguments passed a decree for dissolution of marriage on basis of 'Khula', against consideration of dower amount/ornaments, in favour of Mst. Nazmeen Akhter, appellant plaintiff, and her other suit to the extent of maintenance allowance was dismissed, whereas, the suit filed by Lal Khan, respondent-defendant, for restitution of conjugal rights was also consigned to record, vide impugned judgment and decree dated 30.06.2015. Now it is liable to be determined that whether the learned Judge Family Court, has passed the impugned judgment and decree in a legal fashion? In order to arrive at a just and proper conclusion of the matter, I have gone through the evidence of the parties.

7. A contemplate perusal of evidence of the parties reveals that Mst. Nazmeen Akhter, appellant-plaintiff, could not prove her claim before the learned Judge Family Court, regarding maintenance allowance as well as cruelty on the part of respondent-defendant. It is evident from record that at the time when appellant-plaintiff left house, the respondent-defendant was working for gain at abroad, who had been sending her maintenance allowance; therefore, the learned trial Judge, while dismissing the suit for maintenance allowance did not commit any illegality, which is maintained.

8. The argument of the learned Counsel for appellant-plaintiff that ornaments were snatched away from her client, also do not find support from record, because she did not file any suit for recovery of the same before any relevant forum; therefore, a detailed scrutiny of evidence indicates that appellant could not prove her stance regarding snatching away ornaments, hence, findings recorded by the Family Court, on the point need not to be disturbed as such.

9. The contention of the learned Counsel for appellant-plaintiff that the learned Judge Family Court, committed illegality while imposing condition of returning dower amount/ornaments, is misconceived. It is cardinal principle of Islam that the spouses cannot be forced to a life devoid of harmony and happiness and if the parties cannot live together within the limits ordained by Almighty Allah, then the proper course is separation. According to Qur'anic Verse No.229 of Surah Al-Baqara, if the spouses think that differences and hatred between them is much developed and they cannot live together within the limits ordained by God, then the only proper course is separation. A minute study of record reveals that appellant-plaintiff neither pointed out fault of respondent-defendant to populate her nor proved that ornaments were snatched away from her by the latter, rather record reveals that he made efforts to populate her. It is evident from record that there is no possibility of reunion of spouses within the limits ordained by Almighty Allah. However, if the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property, however, the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received and while effecting separation, the Qazi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife. The aforesaid view finds support from a case reported as Mst. Balqis Fatima v. Najm- ul-Ikram Qureshi (PLD 1959 (W.P.) Lahore 566), wherein, it was observed in paragraph 24 at page 582 of the report as under:- "Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received. The jurisdiction of the Qazi to dissolve a marriage in cases of Shiqaq is limited only by what is stated in the Qur'an, i.e., "if you fear a breach" which means that there is real discord between the parties and in the case of khula by the words "If you fear that they will not observe the limits of God". While effecting separation, the Qazi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife." In case titled Muhammad Faisal Khan v. Mst. Sadia and another (PLD 2013 Pesh. 12), it was held as under:-- "Under Muslim Law as well as the Law of country, the wife is entitled to terminate the contract of her marriage one-sidedly like "Talaq", but for the same she shall remit the dower amount, if not received, or pay it back to the husband, if so received. Where there is no dispute existing between the parties regarding dower, then in the terms of proviso to section 10(4) of the West Pakistan Family Courts Act, 1964 a decree for dissolution of marriage, shall be granted to the wife, immediately, on the failure of reconciliation in pre-trial proceedings. However, if a dispute arises and the wife claims dissolution of marriage, on recognized grounds for dissolution of marriage, then the Court shall proceed with the matter and record evidence of the parties to ascertain her entitlement for dower and other benefits. If the Courts, after pro and contra evidence arrives at the conclusion that the husband has compelled the wife by his arrogant, cruel and obnoxious nature of behaviour, then she is to be held entitled for all the due benefits along with dissolution of marriage. On the other hand, if the Court finds that the wife is adamant to reside with the husband and the conscious of the Court is satisfied that there is no fault of the husband, but the wife claim dissolution for her own personal reasons such as abhorrence of disliking of her husband, then the wife shall be directed to restore the consideration of marriage to the husband, for the reason that if she had developed extreme hatred and disliking for her husband, then she should also not like the benefits in the shape of dower from the husband." In case titled Saleem Akhter v. Judge Family Court and 2 others 1999 MLD 1679, it was opined by the apex Court as under:- "From the above referred authorities the irresistible conclusion is that if the spouses have developed so much hatred, disrespect and discomfort against each other and all the possible measures of reconciliation have failed then it is always advisable to dissolve the marriage on the basis of 'Khula' which is the right of the wife. The learned Judge Family Court, as stated earlier, formed the opinion that Mst. Farzana Kausar had developed such a hatred and disrespect against her husband that she was not willing to live with him under any circumstances. Therefore, there was no choice with the learned Judge except to pass a decree for dissolution of marriage on the basis of 'Khula' otherwise as observed in the pronouncement of the superior Courts the result would have been disastrous. The conclusion arrived at by the learned Judge Family Court should not have been disturbed in exercise of writ jurisdiction and it was rightly done so by the High Court." Therefore, aforementioned facts vividly indicate that the learned Judge Family Court, did not commit any illegality while dissolving the marriage on the ground of 'Khula', against consideration of dower/ ornaments, thus, argument of the learned counsel for appellant is turned down and the impugned judgment and decree dated 30.06.2015, are maintained.

10. The nutshell of above discussion is that finding no force in the Instant appeal, it is hereby dismissed. No order as to the costs. ZC/7/Sh.C.(AJK) Appeal dismissed.