-Khula in lieu of dower---Wife/petitioner filed suit on the grounds of cruel behavior and failure to pay maintenance, however, Family Court on failure of reconciliation between the parties dissolved the marriage on the basis of Khula in lieu of dower; which decree was maintained by the appellate Court--

 P L D 2021 Lahore 757

(a) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(ii)(viii)---Suit for dissolution of marriage---Khula in lieu of dower---Scope---Relinquishment of dower---Cruelty by husband---Thirty-two (32) tolas gold ornaments were fixed as dower---Wife/petitioner filed suit on the grounds of cruel behavior and failure to pay maintenance, however, Family Court on failure of reconciliation between the parties dissolved the marriage on the basis of Khula in lieu of dower; which decree was maintained by the appellate Court---Held, that the wife, for decree of dissolution of her marriage, had to forego her claim of dower only in the event of failure of reconciliation between the parties---Family Court on its own could not deprive the lady from the dower and could not order to relinquish the dower as the dower was the right of the lady given by Shariah---Said right could not be discretionarily or arbitrarily exercised by the Court---Family Court in a suit for dissolution of marriage, if reconciliation failed, shall pass decree for dissolution of marriage forthwith and shall restore to the husband the Haq Mehr received by the wife at the time of marriage---Such option could only be exercised if the lady had opted to relinquish the benefit but the Court could not exercise its jurisdiction---Although the Court was empowered to pass a decree on the basis of Khula, but subject to the fact that all the conditions required were fulfilled---In the present case, neither the lady agitated the ground of Khula nor it was her request while making statement before the Court and certain other grounds existed on the basis of which decree for dissolution of marriage could have been passed ---High Court set aside impugned judgments and decrees passed by both the Courts below and dissolved the marriage between the parties on the basis of grounds asserted by the petitioner---Constitutional petition was allowed, in circumstances.

(b) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage on the basis of Khula Talaq-e-Baain---Scope---Held, that if the marriage was dissolved on the basis of Khula, it would be Talaq-e-Baain---If the husband and wife compromised with each other, then only the Nikah would be repeated.

(c) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage---Khula---Scope---Allegation (cruelty etc) asserted by wife---Scope---Held, that the Court framed the issues regarding the allegations asserted by the lady and those were not proved by her ; at such stage the Court could pass decree for dissolution of marriage on the basis of some condition, but it would not be dissolution of marriage on basis of Khula---Wisdom behind this was that the parties should not be forced to live in a hateful union.

(d) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage---Khula---Scope---Held, that decree of Khula could be passed even when there existed no ground but lady was not willing to settle down with the husband, however, the condition had to be fulfilled ; and the lady might be asked to return the benefits, but not the full dower rather the half one---Certainly in such situation the lady would have to forego rights which she had gained from the husband.

(e) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Dissolution of marriage---"Talaq" and "Khula"---Distinction---Held, that there was difference in Talaq and Khula---Dissolution of marriage on the basis of Khula is on the demand of the lady---If offer is accepted by the husband, then Talaq would be effected otherwise in case of refusal by the husband, the condition of Khula had to be fulfilled.

(f) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage---Khula---Scope---Procedural mistakes in passing decree noted/explained---Decree of dissolution of marriage on the basis of Khula cannot be passed ex-parte---Court had to put the offer of the lady to the husband and on the reply of husband in positive, the decree of Khula could be passed; secondly, if the conditions were put by the lady, for which the husband was not ready or he put some more conditions, then the same would be put to the lady---Unless the spouses were ready on the conditions, the decree could not be passed on the basis of Khula---Now the Court would frame the issues, regarding the other grounds agitated by the lady for dissolution of marriage and would decide the same on the basis of available record.