-Whether a gift, if given to a bride at time of nikah, can be returned if marriage dissolved on basis of khula-

 PLJ 2021 Peshawar 13

Constitution of Pakistan, 1973--

----Art. 199--Suit for dissolution of marriage and recovery of maintenance allowance--Decreed--Appeal filed by petitioner was dismissed--Appeal filed by respondent was partially allowed--Modification of judgment--Question of--Physical whether Haveli was actually given and its possession was handed over to respondent--Whether a gift, if given to a bride at time of nikah, can be returned if marriage dissolved on basis of khula--Challenge to--Petitioner/defendant has failed to produce even a single witness to sale consideration rather admitted that amount was transmitted into his account, thus, in such a situation, it has been proved that amount of sale consideration has been received by him and not by respondent/plaintiff--Although marriage was dissolved on basis of Khula but it divulges from evidence that gold in question was given to respondent/plaintiff, besides dower, meaning thereby that same was given to her as gift and it is settled law that gift cannot be reclaimed once given with free will and consent by a donor--Maintenance allowances decreed in favour of minors to tune of
Rs. 5000/- per month to each minor by trial Court and affirmed by appeal Court is not open to any exception keeping in view recent price hike--However, this Court deems it appropriate to reduce annual increase in maintenance allowances from 20% to 10%, keeping in view circumstances of case--Impugned judgment and decree of learned appeal Court is modified only to extent that annual increase of maintenance allowances shall be decreased from 20% to 10% while rest of judgment and decree of learned appeal Court shall remain intact--Petition was disposed of.

                                                                                [P. 16] A, B, C & D

Mr. Haq Nawaz, Advocate for Petitioner.

Mr. Khalid Rehman Qureshi, Advocate for Respondents.

Date of hearing: 24.9.2020.

 PLJ 2021 Peshawar 13
[Abbottabad Bench]
Present: Muhammad Ibrahim Khan, J.
ZAHID AKHTAR--Petitioner
versus
Mst. SAIMA ZIA and others--Respondents
W.P. No. 1619-A of 2019, decided on 24.9.2020.

Judgment

Petitioner Zahid Akhtar through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the judgment and decree dated 05.10.2019 passed by the learned Additional District Judge-V/Model Civil Appellate Court, Haripur, whereby his appeal against the judgment and decree dated 20.03,2018 of the learned Judge Family Court-II, Haripur, was dismissed while that of the respondents/plaintiffs was partially accepted.

2. Succinctly stated fact of the case are that the respondents/ plaintiffs brought a suit against the petitioner/defendant for dissolution of marriage on the basis of Khula and recovery of monthly maintenance allowance for the minors. The learned trial Court put the petitioner/defendant on notice, who appeared and contested the suit by filing his written statements with many legal and factual objections. During trial reconciliation proceedings were conducted wherein the Respondent No. 1/plaintiff flatly refused to live with the petitioner/defendant, thus, the decree for dissolution of marriage on the basis of Khula was granted in favour of the former in lieu of dower i.e a house and 10 tolas gold ornaments;. From divergent pleadings of the parties as many as four (04) issues were framed including relief. The learned trial Court after recording pro and contra evidence and hearing learned counsel for the parties partially decreed the suit as follows:

“As sequel to my issue wise findings, Plaintiff No. 1 succeeded to prove her case partially, therefore, suit of the plaintiff is partially decreed as under:

          Juzz Alif of the plaint has already been decreed in respect of dissolution of marriage on the basis of Khula vide order No. 12 dated 02.05.2016, however, plaintiff is bound to return gold ornaments weighing 10 tolas or its prevailing market price to defendant.

          Juzz Baay of the plaint for recovery. of maintenance allowances of minors No. 2 to 5 stands decreed from 10.11.2015 @ of Rs. 5000/- per month per head with 20% annual increase for minors No. 2, 4 & 5 till their marriages and minor Plaintiff No. 3 till his majority. Interim maintenance allowances so paid during the pendency of the suit are liable to be adjusted. With no order as to cost.”

3. Felt aggrieved from the judgment and decree of the learned trial Court, both the parties filed separate appeals before the learned appellate Court. After hearing learned counsel for the parties, the learned appellate Court dismissed appeal of the petitioner and partially allowed the respondents’ appeal by modifying the impugned judgment and decree to the extent that the respondent/plaintiff is not liable to return 10 tolas gold ornaments to the petitioner/defendant. Dissatisfied with the judgments and decrees of the fora below, the petitioner has preferred the instant petition.

4. Having heard the arguments of learned counsel for the parties, the record was gone through with their able assistance.

5. As apparent from the record, marriage between the spouses i.e. petitioner and Respondent No. 1 was, solemnized on 08.04.2005. No doubt, as per contents of the Nikah Nama, a Haveli is shown to have been given to the respondent in lieu of dower whereas the gold ornament weighing ten (10) tolas was given to her besides dower, which impliedly means that the gold ornament was shown to have been given to her as gift.

6. Before re-appraising the other evidence, the moot point for consideration before the Court is that whether the Haveli was actually given and its physical possession was handed over to the respondent and whether a gift, if given to a bride at the time of Nikah, can be returned if the marriage dissolved on the basis of Khula?

7. In order to meet the above, a threadbare look at the evidence, so furnished by the petitioner/defendant would reveal that admittedly the Haveli was not only mentioned in the Nikah Nama but as per Behi No. 1 Volume No. 502 Registry No. 1090 dated 5.9.2013 the respondent/plaintiff had sold out the said Haveli to one Azhar Mehmood Hashmi s/o Abdur Rasheed Hashmi in lieu of sale consideration of Rs. 25,00,000/-. In this regard, the petitioner/ defendant produced Registry Moharrir as DW-1, who during his cross-examination deposed that the sale consideration was not paid to the

Respondent No. 1 before Sub-Registrar. Besides, the petitioner/ defendant has failed to produce even a single witness to the sale consideration rather admitted that the amount of Rs. 25,00,000/- was transmitted into his account, thus, in such a situation, it has been proved that the amount of sale consideration has been received by him and not by the respondent/plaintiff.

8. So far as the question of gold ornament of ten (10) tolas is concerned, suffice it to say, that although the marriage was dissolved on the basis of Khula but it divulges from the evidence that the gold in question was given to the respondent/plaintiff, besides dower, meaning thereby that the same was given to her as gift and it is settled law that gift cannot be reclaimed once given with free will and consent by a donor.

9. Last but not the least, it is worth to note that the maintenance allowances decreed in favour of the minors to the tune of Rs. 5000/- per month to each minor by the learned trial Court and affirmed by the learned appeal Court is not open to any exception keeping in view the recent price hike. However, this Court deems it appropriate to reduce the annual increase in the maintenance allowances from 20% to 10%, keeping in view circumstances of the case.

10. The nutshell of the above discussed would be that the impugned judgment and decree of the learned appeal Court is modified only to the extent that annual increase of maintenance allowances shall be decreased from 20% to 10% while rest of the judgment and decree of the learned appeal Court shall remain intact.

11. The writ petition stands disposed of accordingly.

(Y.A.)  Petition disposed of