2008 PLP 1337 (CLC)

ALI AKBAR QURESHI, J.

The petitioner filed the instant writ petition challenging the vires of order and decree dated 8-3-2008 whereby the learned Judge Family Court decreed the suit for dissolution of marriage and dismissed the claim of the petitioner to the extent of her dower amounting to Rs.10,00,000.

2. The facts in brief are that the petitioner filed a suit for dissolution of marriage on the basis of Clauses (ii) and (iv) of section 2 of Dissolution of Marriages Act, 1939. The petitioner also filed a suit for recovery of maintenance allowance for herself as well as for her minor son, aged 5 years. The respondent submitted his written statement before the learned Judge Family Court and the case was adjourned for reconciliation. In reconciliation proceedings, the learned trial Court recorded the statement of both the parties and failure of pre-trial reconciliation, decreed the suit for dissolution of marriage while suit for restitution of conjugal rights was dismissed. The learned trial Court also fixed Rs.1,000 as interim maintenance allowance of the minor, framed the issues out of the pleadings of the parties and fixed the case for petitioner/plaintiff evidence. The learned trial Court, however, dismissed the claim of the petitioner for recovery of dower money, hence this Constitutional petition.

3. It is contended on behalf of the petitioner that the petitioner has not claimed the dissolution of marriage on the basis of `Khula', neither any statement to this effect was given before the learned trial Court. The learned counsel to substantiate her contention referred the plaint as well as the statement recorded by the learned trial Court whereby the marriage of the petitioner was dissolved disentitling the petitioner to claim the dower amount. Reliance has been placed on Farida Khanum v. Maqbul Ilahi and 2 others 1991 MLD 1531, Mukhtar Ahmed v. Ansa Naheed and 2 others PLD 2002 SC 273 and Mst. Saiqa v. Additional District Judge and others 2003 YLR 70.

4. Conversely, the learned counsel for the respondent contended that the statement recorded by the petitioner can easily be construed `Khula' and the learned trial Court rightly decreed the suit to the extent of dissolution of marriage and held disentitled to the petitioner to claim the dower amount of Rs.10 Lac. Further contended that even the petitioner refused to enter into the reconciliation proceedings as ordered by the learned trial Court and has categorically stated that the petitioner in any case, is not ready to live with the respondent so the petitioner has claimed the dissolution of marriage on the basis of 'Khula' and under the law, is otherwise not entitled to claim the dower amount.

5. I have heard the learned counsel for the parties and perused the record.

6. I have myself perused the contents of the suit filed by the petitioner wherein nowhere the petitioner has claimed the dissolution of marriage on the basis of 'Khula' rather has mentioned the different instances of the cruelty and bad behaviour of the respondent. From the statement recorded before the learned trial Court, it cannot be presumed that the petitioner claimed the dissolution of marriage on the basis of 'Khula' thus, the learned trial Court wrongly interpreted the statement. The right of `Khula' can only be exercised if the same is stated in clear words whereas in this case neither such sentence was used nor the word of 'Khula' so the petitioner cannot be deprived of her valuable right of dower amount on this score. The judgment cited by the learned counsel for the petitioner fully supports the contention of the petitioner, wherein their lordships have observed that the petitioner/wife cannot be deprived of her valuable right of recovery of dowr amount if the dissolution of marriage on the ground of 'Khula' has not specifically been asked. In this view of the matter, the decree for dissolution of marriage passed by the learned trial Court in favour of the petitioner is maintained and condition as placed by the Family Court to forego the claim of dower amount is declared to be without lawful authority and of no legal effect.

7. Consequently, this Constitutional petition is allowed in the above terms with no order as to costs. H.B.T./T-9/L Petition allowed.