1987 PLP 1640 (CLC)

‑‑‑S. 2(ix)‑‑Dissolution of marriage on ground of Khula'‑‑Entitlement of husband to consideration‑‑Husband failing to assert in written statement conferment of benefits on wife in result of marriage‑‑Effect‑ Held, despite absence of such assertion Family Court declaring that her dower, maintenance, articles and other benefits arising out of wedlock would stand relinquished by her‑‑In absence of any assertions or claim for payment of any benefits, husband would not be entitled even to benefits of relinquishment by wife of her dower, maintenance, articles and other benefits. (b) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Husband not asserting any benefits having been conferred on wife during wedlock, held, could not claim any benefits in exchange for grant of Khula' to wife‑‑Constitutional jurisdiction would not be exercised to grant benefits from wife to husband which remained unproved. Shahid Qadeer for Petitioner. A decree for dissolution of marriage passed by the Family Court, Ahmadpur East on 14‑1‑1987 in favour of the respondent Mst. Haleema on the ground of Khula, by simultaneously dismissing the petitioner's suit for restitution of conjugal rights, is assailed in this writ petition on the solitary ground that a definite consideration in that behalf was required to be fixed and made liable to be paid by her, but so has not been done.

2. Certified copies of pleadings of the parties, as also of the evidence led by them, have been placed on the record and although in the written‑statement there is no assertion even obliquely made with regard to the conferment of any benefit on her in consequence of the marriage, there is a casual statement made by the petitioner as D.W.3 to the effect that he had given a buffalo to her for her benefit but he has not further explained as to what may have happened thereto and since she is admittedly living a life of desertion since the last almost two years, therefore, therein can be reasonably inferred that the buffalo may have been left behind in his house and there is no basis for assuming that the buffalo may have either become her property or she may have taken it along.

3. Learned counsel has not assailed the trial Court's decree on merits but has contended that at least the price of the buffalo may have been decreed against her and made payable to the petitioner but there is no indication whatever available on the record even about the price. Despite the absence of an assertion by the petitioner about any benefit having been received by her in result of the marriage, learned Family Judge has declared that her dower, maintenance, articles and other benefits arising out of wedlock will stand relinquished by her. This gratuitous declaration made to the benefit of the petitioner is contested by the learned counsel for the reason of its uncertainty. It is uncontrovertable that a claim for return of such benefits even if made, can be waived by the husband and since the petitioner had not made any claim at all for payment of any benefits, therefore, he is not legally entitled even to the benefit of such relinquishment as has been declared by the learned Family Judge. It has been held in Abdul Majid v. Razia Bibi etc. P L D 1975 Lah. 256 that not merely a demand for return of benefits of marriage is necessary to be made by the husband but also that such a demand must be made in the nature of an insistance for the payment thereof. Since such an element is not to be found in the defence taken by the petitioner, therefore, upon the respondent having been found entitled to have the marriage dissolved on the ground of Khula', the petitioner cannot be heard to say that he may be paid any consideration therefor, either as the price of a buffalo or the dower amount and the value of articles etc.

4. There is no force in the writ petition which is accordingly dismissed in limine . A . A . /G‑49/ L Petition dismissed.