2010 PLP 352 (MLD)

MS. JAMILA JAHANOOR ASLAM, J.

Through this writ petition the judgments/decrees, dated 14-2-2009 and 20-3-2009 respectively, passed by the learned Judge Family Court, Attock and the Additional District Judge are being assailed. The grievance of the petitioner is that vide the impugned judgments, decrees respondent No.1 has been allowed recovery of 4 tolas of gold ornaments.

2. The backdrop of this situation is that the petitioner and respondent No. 1 had executed the civil contract of marriage on 5-4-2004. Unfortunately, this bond ended in dissolution of the marriage on grounds of Khula vide a judgment/decree, dated 27-3-2008 passed by the Family Court, Attock.

3. Thereafter, the petitioner filed a suit for recovery of gold jewelry weighing 4 tolas against respondent No. 1 claiming that as the marriage had been dissolved on grounds of Khula respondent No.1 was bound to return the jewelry given to her by him as barn, because it will fall in the ambit of zar-e-khula. Respondent No.1 contested this suit. Out of the divergent pleadings the following issues were framed: (i) Whether plaintiff is entitled to recovery four Tolas gold valuing Rs.1,00,000 as "Barri" from defendant as prayed for? OPP (ii) Whether plaintiff has no cause of action to file this suit? OPD. (iii) Whether suit is not maintainable? OPD (iv) Whether plaintiff is estopped by his words and conduct to file this suit? OPD (v) Whether suit is time barred? OPD (vi) Whether suit is filed just to harass the defendant and defendant is entitled to' special costs? OPD (vii) Relief?

4. Issue No.1 was the main bone of contention between the parties. It. was decided in favour of respondent No.1 and against the petitioner vide judgment/decree, dated 14-2-2009, of the Family Court, Attock. Feeling aggrieved the petitioner preferred an appeal before the Additional District Judge. Attock which was dismissed vide judgment/decree, dated 20-3-2009.

5. The petitioner has- now assailed both the judgments/decrees of the Courts below.

6. The contentions of the petitioner are that the claimed 4 tolas of gold ornaments fall in the ambit of Zar-e-Khula, and as the marriage of the parties was dissolved on grounds of Khula respondent No.1 is bound to return the same to him.

7. The petitioner has categorically stated that the 4 tolas of gold jewelery items he wants recovered were part of the "Barn" given to respondent No.1 "Barri" is normally construed to be the gifts given to the bride at the time of marriage and in exchange, the parents of the bride spend a substantial amount of money buying gifts for practically every close relative of the bridegroom. These too, fall in the ambit of gifts.

8. Under the Injunctions of Islam gifts are not something that can be recovered.

9. These do not fall in the ambit of zar-e-khula, which is basically the benefits the wife receives from the husband during the subsistence of the marriage. Benefits would be something from which she can gain continuous benefit. It cast my mind back to the time when the concept of Khula and the return of benefits came into being. It was when the Holy Prophet (SAW) allowed the dissolution of the marriage between Hazrat Zainab (RA) and Hazrat Zaid (RA). Hazrat Zainab (RA) was directed to return the gardens given to her by Hazrat Zaid (RA) during the subsistence of their marriage and in exchange for the gardens she was granted dissolution of her marriage, on the basis of Khula.

10. Once the petitioner acknowledges that the 4 tolas of gold jewelry he wants back from respondent No.1 were gifts he cannot claim the recovery of the same. Hiba (gift) cannot be consideration of the contract of marriage in this particular case as under the Muhammadan Law Chapter XI section 138 it is categorically stated "Hiba means transfer of property in substance by one person to the other "without" consideration which is a condition to be fulfilled in order to make a valid gift". Under section 148 it is mandatory that the donor relinquish all rights and dominion over the gift. He has to divest himself totally of all ownership over the subject of the gift. No condition can be attached to the gift. Condition in this particular case would also cover return of the same in case of Khula, whether implied or implicit, because a condition would derogate from the completeness of the grant. Under section 167 the issue of revocation of gift is addressed. A gift can be revoked before delivery of the same to the donee. However, the second proviso of this section clearly enunciates that a gift given by a husband to his wife and vice versa can be revoked after delivery only under the decree of a Court of competent jurisdiction. In present matter the gift is not falling in the ambit of hiba bill awaz either because there is no mention of it in the Nikahnama. So the upshot would be that only a gift given in lieu of dower amount would be recovereable through a decree of the Court.

11. The Trial Court has rightly observed that neither has the petitioner managed to produce any evidence that he actually bought the 4 tolas of gold ornaments for respondent No. 1 nor has he produced any witnesses to prove his stance. Moreover, the trial Court has also observed that the petitioner has termed the gold ornaments as "Barn", meaning thereby bridal gifts. He cannot thus recover the same-.

12. The appellate Forum has upheld the judgment/decree, dated 14-2-2009. Both the impugned judgment/decrees are in consonance. The petitioner has not managed to convince me that the gifts given at the time of nikah, which he has termed as "Barn" can be claimed back by him. I agree with the findings of the Courts below and do not find an infirmity, irregularity or illegality in the impugned judgments/decrees. Writ petition being without merits is dismissed in limine. M,Y.H./M-381/L Petition dismissed.