2009 PLP 1823 (YLR)

ZAFAR IQBAL CHAUDHRY, J.

Challenges the judgment and decree dated 17-1-2009 passed by the learned Additional District Judge, Khushab whereby the appeal filed by the respondent No.1 was accepted and while reversing the finding of the learned trial Court on issue No.2, the petitioner was not held entitled to recover gold ornaments.

2. I have heard the learned counsel for the parties and perused the documents attached with the petition. Both the petitioner and respondent No.1 were married to each other on 10-9-1997, but having developed hatred against the petitioner, respondent No.1 filed a suit for dissolution of marriage and the learned trial Court vide judgment and decree dated 23-10-2008 decreed the same on the basis of Khula and respondent No.1 in lieu thereof was held liable to return the amount of Rs.500 which she received as Haq Mehr as well as gold ornaments weighing 1 tola, 1 masha 4 rati, a ring weighing 3 1/4 masha and a pair of Maganath 3 tola 4 rati to the petitioner as consideration of Khula. However, on filing appeal by respondent A No.1, the condition for return of the gold ornaments was struck down by the learned appellate Court through the impugned judgment and decree.

3. The, learned counsel contends that respondent No.1 had herself executed Iqrarnama (Exh.D-1) for the return of the gold ornaments to the petitioner in case she demanded for Khula. Admittedly the gold ornaments are not mentioned in the Nikahnama as Haq-e-Mehr. The learned appellate Court has rightly observed that the agreement Exh.D-1 was most doubtful document, which cannot be relied upon and the respondent has fully explained that her signatures on the said stamp were obtained for employment purposes. After perusal of Exh.D-1 it does not appeal to mind that the respondent being wife would have written such a document with consent when her marriage with the petitioner still existed.

4. Khula means to take off. In this context it means take off a marriage bond (by women). Allah (SWT) gave the husband the right to divorce and to balance the rights of the spouses. He gave the women the right to separate. Allah (SWT) says:-- "

And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul' (divorce)..." (Al-Baqarah 2:229) Narrated Ibn Abbas (RA):-- "The wife of Thabit Bin Qais came to the prophet and said, "0 Allah's Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un Islamic manner (if I remain with him)." On that Allah's Apostle said (to her), "will you give back the garden which your husband has given you (as Mahr)?" She said, "Yes." Then the Prophet said to Thabit, "O Thabit! Accept your garden, and divorce her once." (Sahih Al-Bukhari) The above discussion shows that if the husband wants to divorce his wife, then he should not tease her to get the dower back. This is unlawful for him but if he does not want to divorce but the wife is bent on separation, then she should return the dower and seek separation. As discussed above the gold ornaments did not include in the Haq-e-Mehr of the respondent and the learned appellate Court has rightly relied upon PLD 2004 Lahore 290 wherein it has been observed that the bridal gifts given by husband is absolute property of the wife and it could not be snatched away from her. The learned counsel has failed to point out any illegality or jurisdictional defect in the impugned judgment and decree, which being based on valid reasons is maintained.

5. For the foregoing discussion, I find no merit in this writ petition, which is dismissed in limine. H.B.T./N-53/L Petition dismissed.