PLJ 2012 Peshawar 13 (DB)
Present: Miftah-ud-din Khan and Syed Sajjad Hassan Shah, JJ.
ABDUL WAHAB--Petitioner
versus
Mst. SADIA and 2 others--Respondents
W.P. No. 2356 of 2010, decided on 13.1.2011.
West Pakistan Family Courts Act, 1964--
----Scope--Dissolution of marriage on the basis of `Khula'--Return of `Haq Mehr'--It is not the requirement of law, that in case of `Khula' divorce, the wife would be compelled to return the entire consideration, benefits/"Haq Mehr" received by the Wife. [P. 17] A
PLD 2009 Pesh. 92, rel.
Limitation Act, 1908 (IX of 1908)--
----Arts. 103 & 104--Suit for the recovery of dower was filed beyond the period of three years, as prescribed under Arts. 103 & 104 of Limitation Act--In the pleadings of the petitioner no ground of limitation agitated, hence, no issue framed, no evidence led and no findings recorded by trial Court, likewise, the petitioner neither in his memo of appeal nor during the arguments agitated the same, therefore, by no strech of imagination, it is permissible to agitate such question for the first time in the constitutional jurisdiction of High Court. [Pp. 19 & 20] B
1985 CLC (Kar.) 2735, ref.
Pleadings--
----Question of law and fact in their pleadings--Be awared of the allegations made by them against each other and to meet them by leading evidence at the trial if at any subsequent stage much less, in the constitutional jurisdiction of High Court to have agitated, the Court shall not consider the same, unless not plead before the fora below in their pleadings--Raising the new plea for the first time in constitutional petition not permissible under the law, thus, same neither can be agitated nor argued before the High Court. [P. 21] C & D
1996 SCMR 336, rel. 2002 CLC 1964 & 2004 YLR 2541, rel.
Mian Iqbal Hussain, Advocate for Petitioner.
Malik Ahmad Jan, Advocate for Respondents.
Date of hearing: 13.1.2011.
Judgment
Syed Sajjad Hassan Shah, J.--Abdul Wahab, the petitioner, through the instant constitutional petition called in question the propriety and validity of the judgment and decree dated 14.5.2010 passed by the learned Additional District Judge/Izafi Zilla Qazi-IV, Swat, whereby appeal filed by the petitioner against the judgment and decree dated 22.2.2010 passed by the learned Civil Judge-I/Judge Family Court, Swat, was dismissed.
2. Briefly stated facts of the case are that Mst.Sadia the plaintiff-respondent (herein after called as respondent) filed a suit seeking the recovery of dower in the shape of gold ornaments weighing 29 tola or the market value of the same and also the recovery of maintenance allowance at the rate of Rs. 5000/- per month from April 2003 till the decision of the suit including the period of "Iddat", recovery of dowry articles as per detail mentioned in the list or the market value of the said articles and also prayed for the dissolution of marriage, in case the pronouncement of divorce denied by the defendant-petitioner (herein after called as petitioner).
3. Admittedly the "Nikah" of the parties was performed in the year 1990. 29 tola gold ornaments fixed as dower of the respondent. During the wedlock, the spouses not blessed with any child, as such, the respondent faced the nasty attitude and maltreatment by the petitioner, however, in order to save the honour and respect of her family, avoided to lodge protest and remained, silent. In April 2003 the petitioner divorced and ousted the respondent in her wearing apparel from his house, since then the respondent residing with her parents. The dowry articles and afore stated gold ornaments taken by the petitioner are in his possession. The petition has neither paid maintenance allowance nor ready to restore marital relationship, therefore, the instant suit was instituted.
The petitioner contested the suit by filing written statement. In view of divergent pleas raised in the pleadings of the parties, the learned trial Court framed the issues. The learned trial Court recorded the evidence of both the parties as they wished to produce. The learned trial Court while seized of the matter decreed the suit of the respondent. The recovery of dowry articles as per list appended with the plaint and the recovery of gold ornaments weighing 29 tola, maintenance allowance at the rate of Rs. 5000/- per month from April 2003 till the decision of the suit and for the period of "Iddat" and also the dissolution of marriage as per prayer made by the respondent in her plaint. However, the learned appellate Court while accepting the appeal modified the judgment and decree to the extent of return of dowry articles mentioned in the list of dowry at Serial Nos. 2 to 5, 7 to 9 and the articles of grocery as mentioned at Serial Nos. 1 to 14 in the list of grocery articles and set aside the judgment and decree regarding the rest of dowry articles and she has also been declared as entitled for the furniture mentioned in the list at Serial Nos. 1 to 8 valued Rs. 65,600/- and other dowry articles mentioned at Serial Nos. 1 to 6 valued Rs. 16000/- and decreed the claim of maintenance, further recorded the findings that the petitioner had divorced the respondent as the same has been proved. The finding of learned trial Court to the extent of dower was also maintained.
4. The learned counsel for the petitioner contended that the learned trial Court while passing the decree failed to consider the evidence on record, because the suit of the respondent was time barred, the respondent was divorced by the petitioner as per the findings of the learned trial Court. He further contended that the respondent declared to be entitled for the dissolution of marriage, in such circumstances the decree for dissolution of marriage may be converted into "Khula" divorce, the petitioner may be relieved to pay the dower. He further contended that the findings of both the Courts below are self contradictory and not maintainable.
5. The learned counsel for the respondent while rebutting the arguments of the learned counsel for the petitioner contended that the judgment and decree passed by the learned appellate Court is in accordance with law. The learned counsel for the petitioner can not seek the setting aside of the judgment and decree without pointing out that the judgments and decrees passed by the Courts below are without lawful authority and suffering from material illegality and irregularity and thereby caused miscarriage of justice to the petitioner. He further contended that the learned trial Court resolved all the controversial questions between the parties, the findings of the learned trial Court confirmed by the learned appellate Court, however, with a little modification in judgment and decree passed by the learned trial Court.
We have considered the arguments of the learned counsel for the parties and carefully perused the record.
6. Record examined in view of the arguments of the learned counsel for the parties and judgments of the learned Courts below. So far as the question of divorce is concerned, no doubt that the wife-respondent in Para-4 of the plaint averred that the husband-petitioner in April 2003 pronounced the divorce in his house where after ousted the respondent and she took shelter in the house of her parents. In reply of Para-4 of the plaint, the petitioner in his written statement categorically denied that he has not pronounced "Talaq", the respondent still legally wedded wife of the petitioner.
7. The learned trial Court while deciding the question of "Talaq" recorded the findings while discussing Issue No. 9 to the effect that the petitioner has failed to prove the divorce, however, the statement of respondent was relied upon by the learned trial Court that in the year 2003 the petitioner had divorced the respondent. In such circumstances the decree passed by learned trial Court regarding the maintenance was upheld by the learned appellate Court. The other plea of the petitioner i.e. the substitution of judgment and decree to the extent of dissolution of marriage by the decree of "Khula" divorce not tenable as it cannot be agitated at this stage, because of the reason that the ground neither taken in pleadings nor issue framed, nor evidence produced in order to substantiate the claim agitated before this Court to substitute "Khula" divorce after setting aside the findings regarding dissolution of marriage. It is worth mentioning that both the Courts below have granted the decree for recovery of dower i.e 29 tola gold ornaments, however, the petitioner has not sought for relief of the substitution of dissolution of marriage on the basis of "Khula". This is for the reason that he was fully satisfied that the divorce has already been pronounced by him, hence, not sought the relief in fora below. Respondent has proved on record that 29 tola gold ornaments fixed as dower, not paid so for, she was entitled for the decree of dower amount, therefore, rightly granted by the Courts below. Even otherwise the arguments of learned counsel for the petitioner not maintainable, because it is not the requirement of law, that in case of "Khula" divorce, the wife would be compelled to return the entire consideration, benefits/"Haq Mehr" received by the wife. In this regard reliance placed upon a case titled "Dr.Fakhr-ud-Din vs. Mst.Kausar Takreem and another (PLD 2009 Peshawar 92). For convenience sake the relevant paras i.e 26,27,28.29 and 30 are reproduced as under:
"26. The words used "some consideration" is of paramount importance because if the Commandment of the Allah Almighty was to the effect that the wife has to return all that which she had received from the husband, then of course, no room was left to deviate therefrom but the verse of the Holy Quran has reduced the burden on the wife by commanding to return some consideration to the husband, therefore, the same in no manner places the wife under obligation to return each and every thing whether in cash or kind she has received from her husband at the time of her release from the wedlock on the basis of "Khula". Even the word "Haq Mahr" has not been used in this verse nor all benefits received by the wife have been referred to. In this view of the matter, some discretion is left to the Judge to determine the consideration which is to be returned by the wife to the husband.
27. The first case in the Islamic history is that of Sabit Bin Qais (R.A), who was having unattractive complexion and short stature, therefore, his wife Jameela Bin Abi Bin Salul (R.A) made supplication to the Holy Prophet (peace be upon him) to release her from the marital bond. On hearing these words, the Holy Prophet (peace be upon him) asked her as to whether she is ready to return the orchard which she has received from her husband to which she expressed willingness and then the Holy Prophet (peace be upon him) directed the husband to receive back the orchard and release his wife from the wedlock. The second precedent on the issue also relate to Hazrat Sabit Bin Qais (R.A) where his second wife got herself released from the wedlock in the same way.
28. In the above two cases, it is not clear as to at what stage divorce on the basis of "Khula" was sought by the two wives of Hazrat Sabit Bin Qais (R.A). No details are available as to whether by then they were blessed with a child or not, the deducible inference would thus be that the marriage was dissolved probably at the initial stage, on the personal dislike of the wife.
29. The cited Verse of the Holy Qur'an would suggest that the wife has to return some consideration to the husband on seeking dissolution of marriage on the basis of "Khula". It does not command in express words and clear terms that the entire consideration benefits/Haq Mehr received by the wife has to be repaid, therefore, in our view, in peculiar and exceptional circumstances, the Judge has the authority to determine that the Haq Mehr/consideration as a whole is not to be repaid by the wife but a part of it. Similarly, it can also determine as to what extent the husband can be relieved from the payment of dower, to the wife, if not already paid.
30. While exercising such discretion in that regard, the Judge while dissolving marriage on the ground of "Khula" amongst other, may take into consideration the following conditions and circumstances.
(i) If it is proved before it that the wife was neither disobedient nor was a major contributory or a cause for the hateful and strained relations, rather the fault on this account is attributable to the husband;
(ii) In a case where "Khula" is sought by an orphan lady who has no resources or insufficient financial means to pay back the compensation/consideration or part of it, in such a situation, she had not to be forced to return the whole or part of the same as any strict view in this regard would force the lady to live a sinful life to arrange money for payment. Such a course would be in disregard for the injunctions of Islam being a detestable act;
(iii) In case where the husband has taken some steps for contracting a second marriage without the required permission although it has not been solemnized by then and the fault of crossing the limits of Allah Almighty is well attributed to him;
(iv) In case where the wife has spent the full blooming, the blossom full and peak of her life with the husband and at the fag-end of her life when her youth and beauty both have faded and is unable to remarry after divorce/"Khula". The same shall be taken into consideration;
(v) If the wife is a destitute and after divorce/"Khula", she is left with no shelter to live a graceful life and after considering all the surrounding-circumstances, it is evident that she is unable to repay the dower or part of it, and
(vi) The Judges of the Family Courts shall give deep thought to the facts and circumstances of each case so that the above concession based on the interpretation/construction of Islamic injunctions are not extensively misused.
The Judge may also consider other similar circumstances so that the wife is not forced to live impious life for arranging money to repay in full or part of the consideration to the husband. Similarly, the husband is not to be let off from the payment or part payment of the dower if still outstanding enabling the divorced wife to live a pious life with grace and dignity."
However, in the instant case apart, that the ground of "Khula" not agitated in the trial Court, as well as in appellate Court, the reason was quite obvious that the petitioner pronounced the divorce in year 2003, much earlier to the institution of the suit, thus, there was no reason claiming for the "Khula" divorce, thus, the petitioner now have sought the passage of judgment and decree in his favour on the basis of "Khula" to avoid the payment of dower. The Courts while adjudicating the question of "Khula" between the parties to the suit, the principles and guidelines laid down in the judgment `supra' shall be followed in its letter and spirit.
8. The contention of the petitioner is that the respondent sought the recovery of dower by filing instant suit beyond the period of three years, as prescribed under Articles 103 and 104 of the Limitation Act, thus, barred by limitation and was liable to be dismissed at its very inception, but the learned Courts below have not adverted to this legal aspect of the case. The argument of the learned counsel not sustainable for the reasons that in the pleading of the petitioner no ground of limitation agitated, hence, no issue framed, no evidence led and no findings rendered by the learned trial Court, likewise, the petitioner neither in his memo. of appeal nor during the arguments agitated the same, therefore, by no stretch of imagination, it is permissible to agitate this question for the first time in the constitutional jurisdiction of this Court. Moreover, had this been pleaded in the written statement of the petitioner, the respondent might be in a position to meet the same by leading evidence as required under the law, which could be helpful in calculating the same from the date when demand was made by the wife and refused to pay by husband. In absence of cogent and convincing evidence supporting the demand and refusal of payment of dower to the respondent, the application of Articles 103 and 104 cannot be made as permissible. It is apt to say that the petitioner has also not brought on record any material worth the name whereby the requirements of Articles 103 and 104 could be satisfied. Conversely admitted in his statement recorded as DW-1 that 29 tola gold ornaments was fixed as dower of the respondent. Reliance placed on a case "Mst.Tahira Khatoon (1985 CLC Karachi 2735), the relevant para is reproduced as under:
"The period of three years should be calculated from the date when the demand was made and refused or if no such demand was made from the date of death or divorce. The suit from the date of divorce is within time. However, the learned counsel for the appellant relying on the aforestated two notices has pressed the bar of limitation. Article 103 provides twin conditions for the purpose of calculating the period of limitation. These conditions are (1) that the demand has been made and (2) that the husband has refused to pay the dower. Mere demand without any refusal by the husband will not attract Article 103. Similarly if no demand has been made and the husband refuses to pay, it will not amount to a case of demand and refusal both. The requirement of law is to make a demand which should be refused by the husband. Unless these two conditions have been fulfilled the period of limitation will not start running. Reference can be made to Rani Khajoorunnisa v. Rani Raeesunnisa (1875) 24 WR 103 P C. Under Article 103 time does not run unless there has been a demand by the wife and clear and unambiguous refusal by the husband. In the present case two notices relied upon by the learned counsel for the appellant establish that a demand was made by the respondent but no clear and specific refusal was made by the appellant. The entire letter of 28th September, 1956 is silent about the claim of dower. The respondent was not cross-examined and her statement with regard to the demand and refusal by the appellant has remained unchallenged. Even the appellant in his statement did not say that when the demand was made by notice, dated 13.9.1956 he refused to pay. He merely stated that he replied the notice by Exh.D-2. This reply does not amount to a refusal to pay. The plea of limitation is based on letter, dated 28.9.1956 which cannot be construed as a refusal."
9. It is by now, well settled principle of law of pleadings that the parties ought to raise all the material question of law and fact in their pleadings, so that they must be aware of the allegations made by them against each other and to meet them by leading evidence at the trial and not to be taken by surprise. If at any subsequent stage much less, in the constitutional jurisdiction of the High Court to have agitated, the Court shall not consider the same, unless not pleaded before the fora below in their pleadings. Reliance placed upon dictum of august Supreme Court in case titled "Binyameen and 3 others vs. Chaudhry Hakim and another" (1996 SCMR 336), the relevant para is reproduced as under:
"It is a well settled principle of law that a party can prove a case which has been pleaded by it. In support of his contention, the learned counsel for the appellants referred to Government of Pakistan (Now Punjab) through Collector, Bahawalpur Vs. Haji Muhammad (PLD 1976 Supreme Court 469). It is also a well settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law."
10. Raising the new plea for the first time in constitutional petition not permissible under the law, thus, same neither can be agitated nor argued before the High Court. Reliance placed on a case titled "Ch.Arfan Jabbaz alias Ch. Zafar IqbaI vs. Mst.Rizwana Jabeen and two others" (2002 CLC 1964) the relevant para is reproduced as under:
"The grounds of the revision petition are attached with the said writ petition. The petitioner did not raise point of jurisdiction in the contents of the revision petition. Therefore, he is not permitted to argue the same before this Court. In arriving to this conclusion I am fortified by the following judgments:
(1) John E.Brown Lee v. Vivan Mac Millan AIR 1940 PC 219,
(2) Ashfaq Rehman Khan V. Ch.Muhammad Afzal PLD 1971 SC 766."
The reference made to a case titled "Muhammad Saleem Akhtar vs. Judge Family Court and others" (2004 Y L R 2541) the relevant para is reproduced as under:
"As regards the violation of the Dowry and Bridal Gifts (Restriction) Act, 1976, learned counsel has not referred to any provision which was violated by the parties. Moreover, this point which has been now agitated in this Court during arguments, was never raised in the pleadings nor any issue was got framed for that proposition, even in the memo. of writ petition this point does not find any place in it, therefore, the point raised having not been activated and agitated during the trial of the case, cannot be allowed to be canvassed in this writ petition because the other party would be taken aback at this stage and would have no opportunity to meet it especially during the trial of the case. Accordingly, I do not consider it a fit case for the exercise of extraordinary jurisdiction. So, the writ petition is dismissed in limine without any order as to costs."
Since both the Courts below concurrently held that the divorce pronounced by the petitioner in the year 2003 and dower not paid so for, in these circumstances the petition is not maintainable. It is also settled principle of law that this Court has no jurisdiction to substitute its own findings to the findings of the Tribunals below, as law laid down by superior Courts. Reference can be made of Ch.Arfan Jabbaz alias Ch. Zafar Iqbal vs. Mst.Rizwana Jabeen and two others case `supra' :
It is also settled principle of law that writ petition is not maintainable against the concurrent finding of facts arrived by the Tribunals below. In arriving to this conclusion I am fortified by the case of Khuda Bakhsh 1974 SCMR 279. It is also settled principle of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunals below as per principle laid down by the superior Courts in the following judgments:
(1) M. Musaddaq's case PLD 1973 Lah. 600;
(2) Qaisar Saif Ullah's case PLD 1994 SC 859.
In view of the above discussion the judgments and decrees of both the Courts below are maintained as not being suffering from any illegality, irregularity, misreading and nonreading or jurisdictional error.
This petition is hereby dismissed being without any substance.
(M.S.A.) Petition dismissed.
Present: Miftah-ud-din Khan and Syed Sajjad Hassan Shah, JJ.
ABDUL WAHAB--Petitioner
versus
Mst. SADIA and 2 others--Respondents
W.P. No. 2356 of 2010, decided on 13.1.2011.
West Pakistan Family Courts Act, 1964--
----Scope--Dissolution of marriage on the basis of `Khula'--Return of `Haq Mehr'--It is not the requirement of law, that in case of `Khula' divorce, the wife would be compelled to return the entire consideration, benefits/"Haq Mehr" received by the Wife. [P. 17] A
PLD 2009 Pesh. 92, rel.
Limitation Act, 1908 (IX of 1908)--
----Arts. 103 & 104--Suit for the recovery of dower was filed beyond the period of three years, as prescribed under Arts. 103 & 104 of Limitation Act--In the pleadings of the petitioner no ground of limitation agitated, hence, no issue framed, no evidence led and no findings recorded by trial Court, likewise, the petitioner neither in his memo of appeal nor during the arguments agitated the same, therefore, by no strech of imagination, it is permissible to agitate such question for the first time in the constitutional jurisdiction of High Court. [Pp. 19 & 20] B
1985 CLC (Kar.) 2735, ref.
Pleadings--
----Question of law and fact in their pleadings--Be awared of the allegations made by them against each other and to meet them by leading evidence at the trial if at any subsequent stage much less, in the constitutional jurisdiction of High Court to have agitated, the Court shall not consider the same, unless not plead before the fora below in their pleadings--Raising the new plea for the first time in constitutional petition not permissible under the law, thus, same neither can be agitated nor argued before the High Court. [P. 21] C & D
1996 SCMR 336, rel. 2002 CLC 1964 & 2004 YLR 2541, rel.
Mian Iqbal Hussain, Advocate for Petitioner.
Malik Ahmad Jan, Advocate for Respondents.
Date of hearing: 13.1.2011.
Judgment
Syed Sajjad Hassan Shah, J.--Abdul Wahab, the petitioner, through the instant constitutional petition called in question the propriety and validity of the judgment and decree dated 14.5.2010 passed by the learned Additional District Judge/Izafi Zilla Qazi-IV, Swat, whereby appeal filed by the petitioner against the judgment and decree dated 22.2.2010 passed by the learned Civil Judge-I/Judge Family Court, Swat, was dismissed.
2. Briefly stated facts of the case are that Mst.Sadia the plaintiff-respondent (herein after called as respondent) filed a suit seeking the recovery of dower in the shape of gold ornaments weighing 29 tola or the market value of the same and also the recovery of maintenance allowance at the rate of Rs. 5000/- per month from April 2003 till the decision of the suit including the period of "Iddat", recovery of dowry articles as per detail mentioned in the list or the market value of the said articles and also prayed for the dissolution of marriage, in case the pronouncement of divorce denied by the defendant-petitioner (herein after called as petitioner).
3. Admittedly the "Nikah" of the parties was performed in the year 1990. 29 tola gold ornaments fixed as dower of the respondent. During the wedlock, the spouses not blessed with any child, as such, the respondent faced the nasty attitude and maltreatment by the petitioner, however, in order to save the honour and respect of her family, avoided to lodge protest and remained, silent. In April 2003 the petitioner divorced and ousted the respondent in her wearing apparel from his house, since then the respondent residing with her parents. The dowry articles and afore stated gold ornaments taken by the petitioner are in his possession. The petition has neither paid maintenance allowance nor ready to restore marital relationship, therefore, the instant suit was instituted.
The petitioner contested the suit by filing written statement. In view of divergent pleas raised in the pleadings of the parties, the learned trial Court framed the issues. The learned trial Court recorded the evidence of both the parties as they wished to produce. The learned trial Court while seized of the matter decreed the suit of the respondent. The recovery of dowry articles as per list appended with the plaint and the recovery of gold ornaments weighing 29 tola, maintenance allowance at the rate of Rs. 5000/- per month from April 2003 till the decision of the suit and for the period of "Iddat" and also the dissolution of marriage as per prayer made by the respondent in her plaint. However, the learned appellate Court while accepting the appeal modified the judgment and decree to the extent of return of dowry articles mentioned in the list of dowry at Serial Nos. 2 to 5, 7 to 9 and the articles of grocery as mentioned at Serial Nos. 1 to 14 in the list of grocery articles and set aside the judgment and decree regarding the rest of dowry articles and she has also been declared as entitled for the furniture mentioned in the list at Serial Nos. 1 to 8 valued Rs. 65,600/- and other dowry articles mentioned at Serial Nos. 1 to 6 valued Rs. 16000/- and decreed the claim of maintenance, further recorded the findings that the petitioner had divorced the respondent as the same has been proved. The finding of learned trial Court to the extent of dower was also maintained.
4. The learned counsel for the petitioner contended that the learned trial Court while passing the decree failed to consider the evidence on record, because the suit of the respondent was time barred, the respondent was divorced by the petitioner as per the findings of the learned trial Court. He further contended that the respondent declared to be entitled for the dissolution of marriage, in such circumstances the decree for dissolution of marriage may be converted into "Khula" divorce, the petitioner may be relieved to pay the dower. He further contended that the findings of both the Courts below are self contradictory and not maintainable.
5. The learned counsel for the respondent while rebutting the arguments of the learned counsel for the petitioner contended that the judgment and decree passed by the learned appellate Court is in accordance with law. The learned counsel for the petitioner can not seek the setting aside of the judgment and decree without pointing out that the judgments and decrees passed by the Courts below are without lawful authority and suffering from material illegality and irregularity and thereby caused miscarriage of justice to the petitioner. He further contended that the learned trial Court resolved all the controversial questions between the parties, the findings of the learned trial Court confirmed by the learned appellate Court, however, with a little modification in judgment and decree passed by the learned trial Court.
We have considered the arguments of the learned counsel for the parties and carefully perused the record.
6. Record examined in view of the arguments of the learned counsel for the parties and judgments of the learned Courts below. So far as the question of divorce is concerned, no doubt that the wife-respondent in Para-4 of the plaint averred that the husband-petitioner in April 2003 pronounced the divorce in his house where after ousted the respondent and she took shelter in the house of her parents. In reply of Para-4 of the plaint, the petitioner in his written statement categorically denied that he has not pronounced "Talaq", the respondent still legally wedded wife of the petitioner.
7. The learned trial Court while deciding the question of "Talaq" recorded the findings while discussing Issue No. 9 to the effect that the petitioner has failed to prove the divorce, however, the statement of respondent was relied upon by the learned trial Court that in the year 2003 the petitioner had divorced the respondent. In such circumstances the decree passed by learned trial Court regarding the maintenance was upheld by the learned appellate Court. The other plea of the petitioner i.e. the substitution of judgment and decree to the extent of dissolution of marriage by the decree of "Khula" divorce not tenable as it cannot be agitated at this stage, because of the reason that the ground neither taken in pleadings nor issue framed, nor evidence produced in order to substantiate the claim agitated before this Court to substitute "Khula" divorce after setting aside the findings regarding dissolution of marriage. It is worth mentioning that both the Courts below have granted the decree for recovery of dower i.e 29 tola gold ornaments, however, the petitioner has not sought for relief of the substitution of dissolution of marriage on the basis of "Khula". This is for the reason that he was fully satisfied that the divorce has already been pronounced by him, hence, not sought the relief in fora below. Respondent has proved on record that 29 tola gold ornaments fixed as dower, not paid so for, she was entitled for the decree of dower amount, therefore, rightly granted by the Courts below. Even otherwise the arguments of learned counsel for the petitioner not maintainable, because it is not the requirement of law, that in case of "Khula" divorce, the wife would be compelled to return the entire consideration, benefits/"Haq Mehr" received by the wife. In this regard reliance placed upon a case titled "Dr.Fakhr-ud-Din vs. Mst.Kausar Takreem and another (PLD 2009 Peshawar 92). For convenience sake the relevant paras i.e 26,27,28.29 and 30 are reproduced as under:
"26. The words used "some consideration" is of paramount importance because if the Commandment of the Allah Almighty was to the effect that the wife has to return all that which she had received from the husband, then of course, no room was left to deviate therefrom but the verse of the Holy Quran has reduced the burden on the wife by commanding to return some consideration to the husband, therefore, the same in no manner places the wife under obligation to return each and every thing whether in cash or kind she has received from her husband at the time of her release from the wedlock on the basis of "Khula". Even the word "Haq Mahr" has not been used in this verse nor all benefits received by the wife have been referred to. In this view of the matter, some discretion is left to the Judge to determine the consideration which is to be returned by the wife to the husband.
27. The first case in the Islamic history is that of Sabit Bin Qais (R.A), who was having unattractive complexion and short stature, therefore, his wife Jameela Bin Abi Bin Salul (R.A) made supplication to the Holy Prophet (peace be upon him) to release her from the marital bond. On hearing these words, the Holy Prophet (peace be upon him) asked her as to whether she is ready to return the orchard which she has received from her husband to which she expressed willingness and then the Holy Prophet (peace be upon him) directed the husband to receive back the orchard and release his wife from the wedlock. The second precedent on the issue also relate to Hazrat Sabit Bin Qais (R.A) where his second wife got herself released from the wedlock in the same way.
28. In the above two cases, it is not clear as to at what stage divorce on the basis of "Khula" was sought by the two wives of Hazrat Sabit Bin Qais (R.A). No details are available as to whether by then they were blessed with a child or not, the deducible inference would thus be that the marriage was dissolved probably at the initial stage, on the personal dislike of the wife.
29. The cited Verse of the Holy Qur'an would suggest that the wife has to return some consideration to the husband on seeking dissolution of marriage on the basis of "Khula". It does not command in express words and clear terms that the entire consideration benefits/Haq Mehr received by the wife has to be repaid, therefore, in our view, in peculiar and exceptional circumstances, the Judge has the authority to determine that the Haq Mehr/consideration as a whole is not to be repaid by the wife but a part of it. Similarly, it can also determine as to what extent the husband can be relieved from the payment of dower, to the wife, if not already paid.
30. While exercising such discretion in that regard, the Judge while dissolving marriage on the ground of "Khula" amongst other, may take into consideration the following conditions and circumstances.
(i) If it is proved before it that the wife was neither disobedient nor was a major contributory or a cause for the hateful and strained relations, rather the fault on this account is attributable to the husband;
(ii) In a case where "Khula" is sought by an orphan lady who has no resources or insufficient financial means to pay back the compensation/consideration or part of it, in such a situation, she had not to be forced to return the whole or part of the same as any strict view in this regard would force the lady to live a sinful life to arrange money for payment. Such a course would be in disregard for the injunctions of Islam being a detestable act;
(iii) In case where the husband has taken some steps for contracting a second marriage without the required permission although it has not been solemnized by then and the fault of crossing the limits of Allah Almighty is well attributed to him;
(iv) In case where the wife has spent the full blooming, the blossom full and peak of her life with the husband and at the fag-end of her life when her youth and beauty both have faded and is unable to remarry after divorce/"Khula". The same shall be taken into consideration;
(v) If the wife is a destitute and after divorce/"Khula", she is left with no shelter to live a graceful life and after considering all the surrounding-circumstances, it is evident that she is unable to repay the dower or part of it, and
(vi) The Judges of the Family Courts shall give deep thought to the facts and circumstances of each case so that the above concession based on the interpretation/construction of Islamic injunctions are not extensively misused.
The Judge may also consider other similar circumstances so that the wife is not forced to live impious life for arranging money to repay in full or part of the consideration to the husband. Similarly, the husband is not to be let off from the payment or part payment of the dower if still outstanding enabling the divorced wife to live a pious life with grace and dignity."
However, in the instant case apart, that the ground of "Khula" not agitated in the trial Court, as well as in appellate Court, the reason was quite obvious that the petitioner pronounced the divorce in year 2003, much earlier to the institution of the suit, thus, there was no reason claiming for the "Khula" divorce, thus, the petitioner now have sought the passage of judgment and decree in his favour on the basis of "Khula" to avoid the payment of dower. The Courts while adjudicating the question of "Khula" between the parties to the suit, the principles and guidelines laid down in the judgment `supra' shall be followed in its letter and spirit.
8. The contention of the petitioner is that the respondent sought the recovery of dower by filing instant suit beyond the period of three years, as prescribed under Articles 103 and 104 of the Limitation Act, thus, barred by limitation and was liable to be dismissed at its very inception, but the learned Courts below have not adverted to this legal aspect of the case. The argument of the learned counsel not sustainable for the reasons that in the pleading of the petitioner no ground of limitation agitated, hence, no issue framed, no evidence led and no findings rendered by the learned trial Court, likewise, the petitioner neither in his memo. of appeal nor during the arguments agitated the same, therefore, by no stretch of imagination, it is permissible to agitate this question for the first time in the constitutional jurisdiction of this Court. Moreover, had this been pleaded in the written statement of the petitioner, the respondent might be in a position to meet the same by leading evidence as required under the law, which could be helpful in calculating the same from the date when demand was made by the wife and refused to pay by husband. In absence of cogent and convincing evidence supporting the demand and refusal of payment of dower to the respondent, the application of Articles 103 and 104 cannot be made as permissible. It is apt to say that the petitioner has also not brought on record any material worth the name whereby the requirements of Articles 103 and 104 could be satisfied. Conversely admitted in his statement recorded as DW-1 that 29 tola gold ornaments was fixed as dower of the respondent. Reliance placed on a case "Mst.Tahira Khatoon (1985 CLC Karachi 2735), the relevant para is reproduced as under:
"The period of three years should be calculated from the date when the demand was made and refused or if no such demand was made from the date of death or divorce. The suit from the date of divorce is within time. However, the learned counsel for the appellant relying on the aforestated two notices has pressed the bar of limitation. Article 103 provides twin conditions for the purpose of calculating the period of limitation. These conditions are (1) that the demand has been made and (2) that the husband has refused to pay the dower. Mere demand without any refusal by the husband will not attract Article 103. Similarly if no demand has been made and the husband refuses to pay, it will not amount to a case of demand and refusal both. The requirement of law is to make a demand which should be refused by the husband. Unless these two conditions have been fulfilled the period of limitation will not start running. Reference can be made to Rani Khajoorunnisa v. Rani Raeesunnisa (1875) 24 WR 103 P C. Under Article 103 time does not run unless there has been a demand by the wife and clear and unambiguous refusal by the husband. In the present case two notices relied upon by the learned counsel for the appellant establish that a demand was made by the respondent but no clear and specific refusal was made by the appellant. The entire letter of 28th September, 1956 is silent about the claim of dower. The respondent was not cross-examined and her statement with regard to the demand and refusal by the appellant has remained unchallenged. Even the appellant in his statement did not say that when the demand was made by notice, dated 13.9.1956 he refused to pay. He merely stated that he replied the notice by Exh.D-2. This reply does not amount to a refusal to pay. The plea of limitation is based on letter, dated 28.9.1956 which cannot be construed as a refusal."
9. It is by now, well settled principle of law of pleadings that the parties ought to raise all the material question of law and fact in their pleadings, so that they must be aware of the allegations made by them against each other and to meet them by leading evidence at the trial and not to be taken by surprise. If at any subsequent stage much less, in the constitutional jurisdiction of the High Court to have agitated, the Court shall not consider the same, unless not pleaded before the fora below in their pleadings. Reliance placed upon dictum of august Supreme Court in case titled "Binyameen and 3 others vs. Chaudhry Hakim and another" (1996 SCMR 336), the relevant para is reproduced as under:
"It is a well settled principle of law that a party can prove a case which has been pleaded by it. In support of his contention, the learned counsel for the appellants referred to Government of Pakistan (Now Punjab) through Collector, Bahawalpur Vs. Haji Muhammad (PLD 1976 Supreme Court 469). It is also a well settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law."
10. Raising the new plea for the first time in constitutional petition not permissible under the law, thus, same neither can be agitated nor argued before the High Court. Reliance placed on a case titled "Ch.Arfan Jabbaz alias Ch. Zafar IqbaI vs. Mst.Rizwana Jabeen and two others" (2002 CLC 1964) the relevant para is reproduced as under:
"The grounds of the revision petition are attached with the said writ petition. The petitioner did not raise point of jurisdiction in the contents of the revision petition. Therefore, he is not permitted to argue the same before this Court. In arriving to this conclusion I am fortified by the following judgments:
(1) John E.Brown Lee v. Vivan Mac Millan AIR 1940 PC 219,
(2) Ashfaq Rehman Khan V. Ch.Muhammad Afzal PLD 1971 SC 766."
The reference made to a case titled "Muhammad Saleem Akhtar vs. Judge Family Court and others" (2004 Y L R 2541) the relevant para is reproduced as under:
"As regards the violation of the Dowry and Bridal Gifts (Restriction) Act, 1976, learned counsel has not referred to any provision which was violated by the parties. Moreover, this point which has been now agitated in this Court during arguments, was never raised in the pleadings nor any issue was got framed for that proposition, even in the memo. of writ petition this point does not find any place in it, therefore, the point raised having not been activated and agitated during the trial of the case, cannot be allowed to be canvassed in this writ petition because the other party would be taken aback at this stage and would have no opportunity to meet it especially during the trial of the case. Accordingly, I do not consider it a fit case for the exercise of extraordinary jurisdiction. So, the writ petition is dismissed in limine without any order as to costs."
Since both the Courts below concurrently held that the divorce pronounced by the petitioner in the year 2003 and dower not paid so for, in these circumstances the petition is not maintainable. It is also settled principle of law that this Court has no jurisdiction to substitute its own findings to the findings of the Tribunals below, as law laid down by superior Courts. Reference can be made of Ch.Arfan Jabbaz alias Ch. Zafar Iqbal vs. Mst.Rizwana Jabeen and two others case `supra' :
It is also settled principle of law that writ petition is not maintainable against the concurrent finding of facts arrived by the Tribunals below. In arriving to this conclusion I am fortified by the case of Khuda Bakhsh 1974 SCMR 279. It is also settled principle of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunals below as per principle laid down by the superior Courts in the following judgments:
(1) M. Musaddaq's case PLD 1973 Lah. 600;
(2) Qaisar Saif Ullah's case PLD 1994 SC 859.
In view of the above discussion the judgments and decrees of both the Courts below are maintained as not being suffering from any illegality, irregularity, misreading and nonreading or jurisdictional error.
This petition is hereby dismissed being without any substance.
(M.S.A.) Petition dismissed.
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