-Decreed on ground of Khula on condition that petitioner shall return three tolas of gold to her husband she will not claim dower, dowry or any maintenance allowance-

 PLJ 2000 Lahore 989 [Bahawalpur Bench Bahawalpur]

 Khula-

—-Art. 199 of Constitution of Pakistan, 1973-Suit for dissolution of marriage-Decreed on ground of Khula on condition that petitioner shall return three tolas of gold to her husband she will not claim dower, dowry or any maintenance allowance-Appeal against-Dismissal of-Writ against- Petitioner in her statement before trial Court stated that she lived haj); !>y with Respondent No. 3 for one month, thereafter, he started to figl: i«f with her-He belongs to shia sect, whereas she is a sunnat-wal-J. at~He used to compel her to follow his faith, she came to house of her parents in her wearing clothes alone~Her ornaments were taken away by him, which he lost in gambling-He was compelling her that if she does not convert to his faith, she will be murdered--She further stated that she cannot pull on as his wife in any circumstances-She was cross examined at length but Respondent No. 3 could not gain anything favourable to him from her-From evidence, this fact is clear that petitioner went to house of her parents in wearing clothes and she did not take any ornaments with her-There is no allegation against her that she deliberately collectedly all clothes, ornaments etc and ran away from house of her husband in his absence—Return of ornaments could only be ordered if it was established on record that same were given to her by husband and were in her possession-Dowry is not a Zar-i-Khula-These articles were given to her by her parents and petitioner could be directed to return only those articles which she received from her husband, therefore, dowry could not be declined to wife for a decree based on Khula-Impugned judgments and decree of khula to the extent of dowry and ornaments declared without lawful authority-However, same was maintained regarding dower and maintenance-Orders accordingly.

[Pp. 991 & 992] A to G PLD 1997 Lah. 108; 1992 MLD 1294; 1991 CLC 1541 ref.

Qazi Muhammad Mukhtar, Advocate for Petitioner. Mr. Ehsan-ul-Haq Tanveer, Advocate for Respondents. Date of hearing: 20.5.1999.

Present: RAJA MUHAMMAD SABIR, J. BUSHRA BIBI-Petitioner

versus JUDGE FAMILY COURT Bahawalpur etc.~Respondents

W.P. No. 1009 of 1998/BWP, heard on 20-5-1999.

JUDGMENT

This petition under Article 199 of the Constitution is directed against the judgment of Additional District Judge, Bahawalpur, dated 23-9-1997, upholding the decree of dissolution passed on the basis of Khula by the Judge, Family Court, Ahmadpur East, on 10-11-1996.

2.     Brief facts of the case are that petitioner filed a suit for dissolution of marriage against Respondent No. 3 Ghulam Abbas on various grounds,  including Khula. The learned trial Judge granted the decree on sole ground of Khula on the condition that the petitioner shall return three Tolas pf gold or its price to the husband. She will not claim dower, dowry or any maintenance allowance also. The petitioner being dis-satisfied with the condition attached with the decree filed appeal before the Additional District Judge, who maintained the decree and dismissed the appeal through theimpugned judgment.

3.   Learned counsel for the petitioner contends that the trial Court has illegally attached the conditions while decreeing the suit of petitioner on the basis of Khula. Such conditions are unwarranted and liable to be quashed. He further submits that the petitioner categorically stated in her evidence before the trial Court that  she has gone to the house of her parents in three wearing clothes without any ornament at the time of her desertion  by Respondent No. 3. The petitioner does not possess the ornaments given to  her earlier by Respondent No. 3, therefore, the direction given in the impugned decree for the return of the same to her husband is against the evidence on the record. The dowry is not a 'Zar-i-Khula', therefore, no such condition disallowing the petitioner to claim it could be imposed and has
relied upon the following judgments :--

(i)   Muhabbat Hussain vs. Mst. Naseem Akhtar & 4 others (1992 MLD 1294);

(ii)  Muhammad Samiullah vs. Muhammad Ilyas, etc. (NLR 1987 Civil 712);

(iii) Dr. Akhlaq Ahmad vs. Mst. Kishwar Sultana and others (PLD 1983 SC 169); and

(iv) Dr. Anees Ahmad vs. Mst. Uzma (PLD 1998 Lahore 52).

4.            Conversely, the learned counsel for Respondent No. 3 submits  that the impugned decree is based on valid conditions which call for nointerference in Constitutional jurisdiction by this Court and relied uponSughran Begum versus Additional District Judge, etc. (NLR 1992 Civil 361).

5.      I have heard the learned counsel for the parties at length and perused the evidence placed on the record. The petitioner in her statement before the trial Court stated that she lived with Respondent No. 3 happily for one month. Thereafter he started fighting with her. He belongs to Shia sect, whereas the petitioner is a Sunnat Wal-Jamaat. He used to compel her to follow his faith. On account of this dispute, he started beating her and became cruel. The Tunchayat' was convened by father of the petitioner, whereupon Respondent No. 3 was more infuriated. She came to the house of her parents in her wearing clothes alone. Her ornaments were taken away by him, which he lost in gambling. He was compelling her that if she does not convert to his faith, she will be murdered. She further stated that she cannot pull on as his wife in any circumstances. She was cross-examined at length but Respondent No. 3 could not gain anything favourable to him from her. She denied the suggestion that Respondent No. 3 has been paying maintenance allowance to her when she was living with him. She admitted¹ that Respondent No. 3 gifted ornaments weighing three Tolas in dower. She denied the suggestion that when she went to attend khatna ceremony of her sister's son, she had brought ornaments and clothes with her. She further clarified that she attended the function without ornaments and Respondent No. 3 lost the ornaments and clothes in gambling. The suggestion by Respondent No. 3 that no dowry was given to her was denied by her. In rebuttal to the evidence of petitioner, Respondent No. 3 appeared as DW-1. He Stated in his evidence that she came in his house only in three clothes. She went to attend khatna ceremony to the house of her father and did not come back and while going she took away the ornaments of three Tolas with her. When she was living with him, he gifted more ornaments of three Tolas. He admitted in the cross-examination that on the Nikahnama whatever was given to the petitioner was not mentioned. He admitted that he belongs to Shia sect. He was suggested that the ornaments have been sold by him which he denied. One fact is clear from the evidence of parties that the petitioner went to the house of her parents to attend KHATNA ceremony of the son of her brother in law namely Shahbaz and did not take any 0 ornaments with her. Respondent No. 3 also stated in the trial Court that she went to attend the aforesaid ceremony and thereafter did not return to his house. She subsequently filed the suit for dissolution of marriage. The statement of the petitioner and that of Respondent No. 3 show that she left his house in routine wearing normal clothes and thereafter she did not come back. There is no allegation against her that she deliberately collected all the clothes, ornaments etc. and ran away from the house of her husband in his absence. Her positive deposition that ornaments given to her by her husband were lost by him in gambling has not been rebutted effectively by him. In the absence of any effective rebuttal, it can be presumed that she has not taken any ornaments with her while leaving the house of her husband. The ornaments having not been taken by her in the house of her parents, the direction given by the trial Court for their return in lieu of Khula decree is unwarranted. The return of ornaments could only be ordered if it was established on record that the same were given to her by husband and were in her possession. Her deposition that she went to the house of her brother in three plain clothes and her ornaments were lost by Respondent No. 3 in gambling has not been rebutted by any cogent, independent evidence. A irection for return of such ornaments in these circumstances could not be made.

6. The petitioner has also been restrained from claiming dowry from Respondent No. 3 through the impugned judgments. Dowry is not a 'Zar-i-Khula' as laid down by this Court in Bibi vs. Ghulam Rasool alias Sulla and another (PLD 1997 Lahore 108). These articles were given to her by her parents and she could be directed to return only those articles which she received from her husband. It is laid down in the Holy Qur'an (Surah Baqara v. 229) :

 

"A divorce is only permissible twice; after thai the parties should either hold together oa equitable terms or separate with kindness. It is not lawful for you (Men; to take back any of your gifts (from your wives) except when both parties fear that they waul'¹ be unable to keep the limits ordained by Allah, If ye (Judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them. If any do transgress the limits ordained by Allah, such persons wrong (themselves as well as others)."

The dowry not being Zar-i-Khula could not be declined to wife for a decree based on Khula. It is laid down in Muhabbat Hussain's case (1992) MLD 1294) that the husband is entitled to return of ornaments which were given by him to wife at the time of marriage. It was the duty of husband to prove the price and nature of the ornaments which he had given to the wife but he failed to prove such a fact and the decree passed on the basis of Khula in favour of wife by Courts below thus could not made conditional on return of ornaments or on the payment of price of the same, specially when the wife had stated that the ornaments were snatched from her by the husband. In the instant case, the husband having not proved taking away of the ornaments and dowry by the petitioner is not entitled to them. Admittedly, the dowry was given to her by her parents and not by the husband and while a decree on the basis of Khula was passed in favour of the petitioner, no such condition for relinquishment of the articles given by her parents could be attached. The High Court further held in Muhammad Shabbir vs. Mst. Zahida and others (1991 CLC 1541) that the recovery of benefits allegedly given by husband to his wife, being a civil liability, the husband could institute a separate suit for its recovery, if so advised and the claim of the husband was rejected in divorce proceedings. Same view was expressed by the same learned Judge in another judgment in Dilshad vs. Judge, Family Court, Kharian and another (1991 CLC 1564), holding that the question regarding determination of benefits allegedly given by petitioner husband to respondent wife being a question primarily related to a civil liability, Civil Court could be moved for determination and recovery of the same and the claim of the husband in a decree on the basis of Khula claiming benefits therein was declined.

7.         The aforesaid judgments clearly indicate that the benefits derived by wife from the husband could be relinquished by her while claiming decree on the asis of Khula. The articles of dowry were not given by therespondent/husband to the wife but were given by her parents, therefore, the petitioner could not be directed to give up the dowry. Similarly, the ornaments having not been taken by the petitioner to her house, and the same having been utilised by Respondent No. 3, the imposition of condition of return of ornaments by lower Courts is wholly without lawful authority.

8.         In Sughran Begum vs. Addl. District Judge, etc. (NLR 1992 Civil  361) referred by the learned counsel for the respondent, the point as to the return of benefits given by the husband to the wife was not taken into consideration at all. Just in the concluding para, the decree on the basis of the Khula declined by lower Courts was granted to the petitioner therein, directing her not to claim her dowry or maintenance from Respondent No. 3 therein. The point involved herein this case was neither agitated nor fully examined in the aforesaid case, and as such that judgment does not support Respondent No. 3 in any manner.

9.         For the aforesaid reasons, the impugned judgments and decree of Khula to the extent of dowry and ornaments are declared without lawful authority. However, same is maintained regarding dower and maintenance. Resultantly, petitioner shall be entitled to claim dowry from her husband,  G the direction for return of 3 tolas of gold or its price is set aside. However, other conditions of decree relating to dower and maintenance allowance are
maintained.

This petition is partly accepted in the terms indicated above.
(MYFK)                                                                         Orders accordingly.