Sunday 20 May 2012

Wife is not liable to return dower in all khula cases

PLJ 2006 Karachi 273

Present: Ali Sain Dino Metlo, J.

AURANGZEB--Petitioner

versus

Mst. GULNAZ and another--Respondents

Const.P. No. 121 of 2006, decided on 24.3.2006.

Constitution of Pakistan, 1973--

----Art. 199--Dissolution of marriage on the ground of Khula'--Restitution of dower is not an indispensable condition for grant of Khula' and non-restoration of dower and other benefits will not have any effect upon the validity of the decree--Once the Family Court comes to conclusion that a wife was entitled for Khula it must pass such decree in her favour--Decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability--If the contention that Khula' cannot be granted without restitution of dower and other benefits, is accepted, then a destitute wife, who is found otherwise entitled to Khula', will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice--Wife, in the present case, admittedly lived with the husband for over one and half year, such living can be treated as sufficient reciprocal benefit received by the husband for a dower of Rs. 42,000--Wife who belonged to a lower class, seemed to be not in a position to pay the amount particularly after undergoing the litigation for two and half years, Family Court, taking into consideration the overall facts of the case, had rightly considered proper to dissolve the marriage by way of Khula' without ordering restoration of dower, it was within the discretion of the Family Court, and therefore, the decree could not be termed as without lawful authority' so as to warrant interference of the High Court under Constitutional jurisdiction.               [Pp. 276 & 277] A, B & C

2003 YLR 70; 2003 YLR 599; PLD 1959 (W.P.) Lah. 566; PLD 1977 Kar. 855; Verse 20 of Sura Al-Nisa; NLR 1982 SC 104 and PLD 1983 SC 169 ref.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 5, 14 & Shedl.--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Khula--Maintainability--Alternate remedy, availability of--Suit for dissolution of marriage was decreed on ground of Khula'--Determination and restoration of mutual benefits--Decree for marriage on the ground of Khula' though was not appealable in view of S. 14, West Pakistan Family Courts Act, 1964, a decision with regard to determination and restoration of mutual benefits was appealable--Alternative remedy of appeal being available, Constitutional petition was not maintainable.           [Pp. 277 & 278] D & E

1982 CLC 2057; PLD 1987 Lah. 420 and 2003 YLR 2708 ref.

Mr. Muhammad Ali Abbasi, Advocate for Petitioner.

Nemo for Respondents.

Date of hearing: 24.3.2006.

Judgment

Petitioner Aurangzeb, by way of this petition under Article 199 of the Constitution, seeks declaration to the effect that the decree passed on 17.12.2005 by the Family Court IV, Karachi Central, in Respondent No. 1's Family Suit No. 302 of 2003, dissolving marriage between the parties on the ground of Khula' without restitution of dower was without lawful authority and of no legal effect, and mandatory injunction to direct her (Respondent No. 1) to join him (petitioner) and perform her marital obligations.

2. Briefly, the facts are that the marriage between the parties, which took place in January 2000 at Darband, Abbotabad, proved unsuccessful. The parties lived together for about one and half year but no child was born to them as, according to the petitioner, the Respondent No. 1 was using contraceptive devices against his wish. In or about the month of July, 2003, the Respondent No. 1 filed the suit for dissolution of marriage, past maintenance and dowry alleging that the conduct of the petitioner, right from the beginning, was very harsh and cruel and he used to beat her severely on every petty matter and ultimately he drove her out from his house in three clothes. According to her, the ornaments of dower were also taken away from her by petitioner's mother just after few days of the marriage on the pretext that they were to be worn only on ceremonial occasions, and were never returned back, and the dowry, which was worth about rupees two lac, was also retained by the petitioner. She further pleaded that due to the conduct of the petitioner she had developed intense hatred for him and it was not possible for her to live happy life with him within the limits prescribed by Allah. The petitioner contested the suit and contended that there was nothing wrong with him and the Respondent No. 1 had been simply misguided by her maternal uncle. He denied that his mother had taken away the ornaments from her and contended that the dowry was hardly of rupees ten or fifteen thousand.

3. By an order dated 15-7-2003, the Family Court, on failure of its reconciliatory efforts, dissolved the marriage on the ground of Khula' and directed the Respondent No. 1 to return dower to the petitioner. On appeal, filed by the Respondent No. 1, the matter was remanded to the Family Court to decide the issue about the restitution of dower after recording evidence. The Respondent No. 1 examined herself and her father, while the petitioner examined himself and two other witnesses. In spite of its finding that the Respondent No. 1 had failed to prove that petitioner's mother had taken away the ornaments of dower from her, the Family Court, by its judgment and decree dated 7-12-2006, dissolved the marriage without ordering for the restoration of dower holding that for the grant of Khula' restitution of dower was not necessary. The prayer for maintenance was refused on the ground that the petitioner was not obliged to provide maintenance for the period she lived separate from him and the prayer for dowry was allowed only to the extent of the dowry admitted by the petitioner.

4. Mr. Muhammad Ali Abbasi, learned counsel for the petitioner argued that the decree was `without lawful authority and of no legal effect' as, according to him, Khula' can't be granted without restitution the dower. However, he could not cite any authority in support of his argument.

5. The finding of the Family Court that the Respondent No. 1 had failed to prove that petitioner's mother had taken away the ornaments of dower from her is premised only on the ground that in support of her contention she had examined herself and her father and no other independent witness, ignoring that the petitioner had also not examined his mother to deny the allegation and in view of Section 17 of the Family Courts Act, 1964, the rules of evidence as contained in the Qanun-e-Shahadat, 1984, were not applicable in family matters. Thus, one may reasonably differ with the finding. But as far as the present petition is concerned, the question raised in it can be decided without disturbing the finding and, therefore, it will be unnecessary to reappraise the evidence.

6. The contention of the petitioner that Khula' cannot be granted without restitution of dower is not tenable in law. The view taken by the Family Court is not only consistent with the view taken in the cases of Mst. Saiqa v. Additional District Judge, Rawalpindi PLD 2003 Lahore 70 and Munawar Iqbal Satti v. Mst. Uzma Satti and others 2003 YLR 599 Lahore, referred to in its judgment, but is also in accord with the judicial opinion expressed in many other judgments of the superior Courts.

7. In his landmark judgment in Mst. Balqis Fatima's case PLD 1959 (W.P.) Lahore 566, which was first of its kind in the field of family laws in Pakistan, B.Z. Kaikaus, J. speaking for the Full Bench observed in paragraph 24 at page 582 of the report:

"Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restoration. If the husband is not in any way at fault, there has to be restitution of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received."

In the case of Mst. Shamshad Begum v. Abdul Haque alias Nawaz and 2 others PLD 1977 Karachi 855 a Division Bench of this Court, referring to verse 20 of Sura-al-Nisa and opinion expressed in `Radd-ul-Muktar.' observed that it was not lawful for a husband to take back anything from his wife particularly when Khula' was due to some fault on his part. In the case of Mst. Razia Begum v. Saghir Ahmed NLR 1982 SC 104 Karachi Saleem Akhtar, J. (as his Lordship then was) held that after dissolution of marriage on the ground of Khula', a decree for unpaid dower could validly be passed as it was not necessary to forgo dower in lieu of Khula'. In the case of Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169 the Hon'ble Supreme Court was pleased to hold that non-restoration of consideration for Khula' did not invalidate the dissolution of marriage by Khula' and once the Family Court came to the conclusion that the parties could not remain within the limits of God, the dissolution must take place and the inquiry and finding with regard to the benefits to be returned by the wife to the husband would only create civil liabilities upon the wife and would not have any effect upon the dissolution itself.

8. Thus, the consensus of judicial opinion is that restitution of dower is not an indispensable condition for the grant of Khula' and non-restoration of dower and other benefits will not have any effect upon the validity of the decree. Once the Family Court comes to conclusion that a wife was entitled for Khula' it must pass such decree in her favour. The decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability. If the contention of the petitioner that Khula' cannot be granted without restitution of dower and other benefits is accepted, then a destitute wife, who is found otherwise entitled to Khula, will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice.

9. The Respondent No. 1 admittedly lived with the petitioner as his wife for over one and half year and in the light of the weighty observations made in Mst. Balqis Fatima's case, such living can be treated as sufficient reciprocal benefit received by the petitioner for a dower of Rs. 42,000 which is not a big amount in these days. Moreover, the Respondent No. 1, who belongs to a lower class, seems to be not in a position to pay the amount particularly after undergoing the litigation for two and half years. The Family Court, taking into consideration the over all facts of the case, considered it proper to dissolve the marriage by way of Khula' without ordering restoration of dower. It was within its discretion and, therefore, the decree cannot be termed as `without lawful authority' so as to warrant interference in the exercise of constitutional jurisdiction.

10. The petition is not maintainable, from another angle also. Though a decree for the dissolution of marriage on the ground of Khula' is not appealable in view of the proviso to Section 14 of the Family Courts Act, 1964, a decision with regard to determination and restoration of mutual benefits is always appealable and for this view reference may be made to the cases of Muhammad Shafi v. District Judge Gujrat and another 1982 CLC 2057 Lahore, Muhammad Sanaullah v. Muhammad Ilyas, Senior Civil Judge/Judge Family Court Toba Tek Singh and 2 others PLD 1987 Lahore 70,  and  Muhammad  Shaban  v.  Judge  Family  Court and others 2003 YLR 2708 Lahore. In presence of the alternate remedy of appeal, constitutional petition under Article 199 is not maintainable.

11. It was for the above reasons, recorded now, that the petition, being not maintainable and meritless, was dismissed in limine by a short order passed on 24-3-2006.

(Fouzia Fazal)   Petition dismissed

No comments:

Post a Comment

Contact Lawyers Network

If you have any queries related with this post you can contact at lawyergolra@gmail.com

Regards,
Salman Yousaf Khan
CEO
Lawyers Network
+92-333-5339880