2012 PLP 1943 (MLD)

IBAD-UR-REHMAN LODHI, J.

Through this constitutional petition, Mst. Razia Bibi petitioner No.1 has challenged the condition attached with a decree for dissolution of marriage granted on the basis of Khula and in addition to the benefit of dower also the right of maintenance was ordered to be relinquished in lieu of condition of Khula. The learned Judge Family Court, Malakwal, District Mandi Baha-ud-Din, vide judgment and decree dated 8-9-2010, while giving findings on Issue No.1 in Family Suit No.80 of 2010 has given the following relief:-- Relief (i) The marriage between the parties is dissolved on the sole ground of Khula. The plaintiff shall return dower amount to the defendant and shall not claim maintenance allowance. The findings so arrived at by the learned Judge Family Court were called in question through regular appeal, but the learned Appellate Judge on 28-2-2011 affirmed the findings of the learned trial court .and the condition of not claiming the maintenance allowance remain attached with relief of dissolution of marriage as was granted to the petitioner on the basis of Khula.

2. Respondent No.1 herein was summoned through every possible means and finally after proclamation in Press as a substituted service, he was proceeded against ex parte vide order dated 20-6-2012.

3. The learned counsel for the petitioner, in support of this petition, has argued with vehemence that some "benefit" is to be attached in case the marriage is to be dissolved on the demand of the wife on the basis of Khula but the right of maintenance can never be considered a "benefit" and thus, the same cannot be ordered to be taken away or to be withheld as a condition of grant of decree of dissolution of marriage.

4. In view of Paragraph 320 of Muhammadan Law by D.F. Mulla, a divorce effected by Khula or Mubara'at operates as a release by the wife of her dower, but it does not affect the liability of the husband to maintain the wife during her Iddat.

5. This Court in case of "Shafigan Bibi v. Senior Civil Judge/Judge Family Court, Okara and another" (1999 CLC 160) has examined the question of return of benefits in case of dissolution of marriage on thebasis of Khula and the maintenance has been considered as no "benefit" but a "right" of wife and it was held that the judgment and decree of the learned Judge Family Court to the extent of withdrawing the benefit of dower in lieu of Khula was correct in making decree conditional on returning of the same but the claim of maintenance was held as not a "benefit" received by the wife from husband and, therefore, it was not returnable in case of Khula, for, it was a duty of the husband to maintain his wife so long as she remained in wedlock. In the reported matter, the decree passed by the learned trial court for dissolution of marriage on the basis of Khula to the extent of relinquishment of claim of maintenance allowance was declared to be without lawful authority and of no legal effect. Earlier in case of "Iftikhar Ahmed v. Husan Pari and others (1988 CLC 2355); it was held that wife was entitled in law to maintenance and would not forfeit such right merely because she had sought divorce on the basis of Khula and a wife was held entitled and not to be deprived of her right to be maintained during pendency of suit based on the ground of Khula and until expiration of Iddat period. Such principle of law, as noted above, also found support from another reported case of "M. Saglain Zaheer v. Mst. Zaibun Nisa Zaheer alias Zaibi and another" (1988 MLD 427).

6. Adjudged the impugned judgment in light of the above settled position there would be no other finding than that the direction for relinquishment of claim of maintenance of the petitioner in lieu of decree for dissolution of marriage on the basis of' Khula is without lawful authority and of no legal effect.

7. Resultantly, this petition is allowed and the condition attached with the decree for dissolution of marriage for relinquishment of claim of maintenance of the petitioner as against respondent No.1 is declared as without lawful authority and of no legal effect. KMZ/R-36/L Petition allowed.