PLJ 2012 Sh.C. (AJ&K) 39
Present: Iftikhar Hussain Butt, J.
ZIL-E-HUMA & another--Respondents
C.A. No. 47 of 2011, decided on 7.2.2012.
Dissolution of Marriage--
----Whereby a decree for dissolution of marriage was passed--If a wife fails to prove all grounds taken in plaint for dissolution of marriage even though a decree on basis ofKhula, can be passed--Validity--If main issues were decided against wife the Court was competent to order dissolution of marriage on payment of khula, if circumstances of the case so warranted--No hard and fast rule can be laid down as to when Court should order dissolution of marriage on basis of khula, it depends upon circumstances of each case. [Pp. 41 & 42] A & B
Factum of cruelty--
----Wife failed to prove factum of cruelty--Personal allegations against character of husband--Validity--Difference of age between spouses, Court below had rightly held that husband had developed a fixed aversion against appellant and it was impossible for them to lead a happy life within limits ordained by almighty Allah. [P. 42] C
----Claim in written statement for restoration of benefits or payment of golden ornaments--Appellant had not put forward any claim in his written statement for restoration of benefits or payment of golden ornaments paid in lieu of dower, therefore, he is not entitled to receive any consideration. [P. 42] D
----When a tie of marriage is annulled on ground of khula, wife has to pay to husband full or part of consideration, she has received from her husband at time of contract of marriage as Court may determine. [P. 43] E
2007 SCR 438 & 2006 SCR 200, rel.
----Dissolution of marriage on basis of khula--Dower amount was fixed at time of marriage which was paid to her in shape of ornaments--Burden of proof--Wife had failed to produce cogent, sufficient and reliable evidence to discharge burden of proof--Evidence was vague and fictitious which cannot be relied--Validity--Ornaments were still in her possession which have to be returned to appellant--Wife remained populated with husband for a period of one month only, as has been averred in plaint--Appeal was accepted. [P. 44] F
Mr. Liaquat Hussain Mughal, Advocate for Appellant.
Raja Muhammad Arif Khan, Advocate for Respondents.
Date of hearing: 7.2.2012.
This appeal has been filed against decision and decree of Judge Family Court Kotli dated 30.09.2011, whereby a decree for dissolution of marriage was passed in favour of the respondent against the appellant.
The facts precisely stated are that Mst. Zil-e-Huma, Respondent No. 1 herein, presented a suit for dissolution of marriage on ground of option of puberty, cruelty and in alternative on ground of `Khula' on 18.9.2009 before Judge Family Court Kotli. She averred that she was married to the appellant on 23.3.2009 while she was a minor whereas the appellant is an old man, who is a habitual drunker. During the period of population he treated her with cruelty and has been physically maltreating her with a hunter. After one month of the marriage, the appellant treated her with cruelty, ousted from his house and threw her in a barren place and also threatened her to do away with her life while showing a dagger. As soon as the appellant disappeared, she arrived at the road side and came to her father. The appellant filed his written statement and refuted the averments of the plaint. He also stated that at the time of marriage ceremony, the respondent was 18 years old and all the ornaments are in her possession. The appellant also filed a suit for restitution of conjugal rights and reiterated the same version taken in his written statement in the suit for dissolution of marriage. The respondent also filed her written statement and repeated the same version, which was taken in her plaint in the suit for dissolution of marriage. The learned Court below consolidated both the suits and framed four issues on 22.01.2010.
The respondent entered the witness box and produced Allah Ditta and Muhammad Ashiq as her witnesses. On the other hand, the appellant appeared in the witness box and produced Haji Abdul Rasheed and Muhammad Azeem as his witnesses.
After completion of the proceedings, the learned Judge Family Court passed a decree for dissolution of marriage on ground of `Khula' without any consideration vide its decision dated 30.9.2011. It is the aforesaid decision and decree which have been assailed through the instant appeal.
Liaquat Hussain Mughal, the learned Counsel for the appellant vehemently argued that the respondent has miserably failed to prove the ground of cruelty and she also failed to prove the circumstances necessary for grant of `Khula' even otherwise if a marriage is dissolved on basis of `Khula', it is incumbent upon the Court to order the wife to return all the benefits but the Court below did not order to return ornaments given in lieu of dower. The learned Counsel finally submitted that the impugned decision and decree may be set-aside or in alternative respondent be ordered to return the ornaments worth Rs.1,82,781/- to the appellant.
On the contrary, Raja Muhammad Arif Khan, the learned Counsel for the respondents argued that Respondent No. 1 has proved her case while producing sufficient and reliable evidence. He further contended that the appellant treated her with cruelty during the period of population and he also did not claim Zar-e-`Khula' while filing his written statement; therefore, he is not entitled to claim ornaments given in lieu of dower from the respondent especially when the same was snatched away by him during the period of population. The learned Counsel defended the impugned decision on all counts and placed reliance on PLJ 2005 Sh.C. (AJK) 17.
I have very carefully attended to the submission made at Bar in the light of the material available on the record.
At the very outset it will be appropriate to mention here that if a wife fails to prove all the grounds taken in the plaint for the dissolution of marriage even though a decree on basis of `Khula' can be passed in her favour keeping in view the peculiar facts and circumstances of the case. In this regard reliance can be placed upon a case reported asMakhdoom Hussain Versus Mst. Habiba Begum and others (1993 SCR 330). Wherein the following principle was enunciated at page 332 of the report:
"It may be stated that if the main issues were decided against the respondent, the Court was competent to order the dissolution of marriage on payment of `khula' if the circumstances of the case so warranted. No hard and fast rule can be laid down as to when the Court should order the dissolution of marriage on the basis of `khula' it depends upon the circumstances of each case."
The respondent has not filed any appeal against the impugned decision and decree therefore, the findings of the Court below have attained finality and it has been proved on the record that the respondent failed to prove the factum of cruelty, however, after taking into consideration the evidence of the parties on the record, the statement of the Respondent No. 1 including the averments made in the plaint whereby she has deposed that she cannot live with the appellant at any cost. She has also levelled certain personal allegations against the character of the appellant. Similarly, keeping in view the difference of age between spouses, the Court below has rightly held that the respondent has developed a fixed aversion against the appellant and it was impossible for them to lead a happy life within the limits ordained by Almighty Allah.
I cannot subscribe to the view of the learned Judge Family Court that the appellant has not put forward any claim in his written statement for restoration of the benefits or payment of golden ornaments worth Rs. 1, 82,781/- paid in lieu of dower therefore, he is not entitled to receive any consideration. The learned Judge Family Court has not cited any authority of the Superior Courts in support of his findings and recorded the impugned decision in a hasty manner without applying its judicial mind, thus, not sustainable. In case titled Muhammad Khalil Versus Shazia Iqbal and 2 others (PLJ 2006 S.C. (AJK) 78) it was observed as under:--
"The dissolution on the basis of `khula' is the power vested in the Court to be exercised in the cases where it is found that the spouses cannot live together and cannot maintain the limits ordained by the Almighty Allah. The marriage in such circumstances is dissolved by the Court normally on the condition of repayment of the dower amount received by the wife, unless there are compelling circumstances to withhold it and order dissolution on payment of `khula'. It is not the demand of the husband for return of the dower money which empowers the Court to dissolve marriage in lieu of the dower amount, but the obligation of the Court to order so if the Court comes to the conclusion that husband is not at fault but wife is compelled to seek dissolution on `khula'. There may, of course, be circumstances where the Court may direct the dissolution without return of the dower money, for example, the dissolution of a long standing union, the destituteness of the wife to return the dower amount etc. In the case in hand, there is no such reason. As stated above the respondent voluntarily contracted marriage with the appellant knowing that he had earlier divorced two wives leaving behind children from both as admitted at bar, and she has not been able to prove cruelty etc, alleged against the appellant, hence in the circumstances of the case the learned Judge of the ShariatCourt was not right in ordering the dissolution on `khula' without repayment of he dower amount."
In view of the, above dictum of
Apex Court the authority P.L.J 2005 Sh.C. (AJK) 17, cited by the learned Counsel for the respondents stands over ruled.
It will not be out of place to mention here that when a tie of marriage is annulled on the ground of `khula' the "wife has to pay to the husband full or part of the consideration, she has received from her husband at the time of the contract of marriage as the Court may determine" (2007 SCR 438). This view finds further support from a case titled Muhammad Shafiq V. Mst. Gul Taj 2006 SCR 260, the observation made at Page 263 of the report may usefully be reproduced:
"It is the principle of Islam that where it is apprehended that the spouses cannot keep together within the limits ordained by Almighty God then the marriage has to be dissolved after directing the wife who claims dissolution of marriage to return the benefits whatever she has derived from her husband. This right is provided through Verse 229 of Sura Baqara".
Now the question arises how much consideration may be fixed for dissolution of marriage on the basis of `Khula'. It has been admitted by the Respondent No. 1 in the plaint that dower amounting Rs.1,82,781/- was fixed at the time of marriage which was paid to her in shape of ornaments. However, she averred in Paragraph No. 9 of the suit that the ornaments were snatched away by the appellant which are in his possession whereas the appellant refuted her claim and contended in his written statement that the ornaments are still in possession of Respondent No. 1.
Allah Ditta, a witness for the Respondent No. 1 did not state about the snatching away of the ornaments in support of claim of the Respondent No. 1.
Muhammad Ashiq, another witness and father of the Respondent No. 1 deposed that the ornaments were snatched away by the appellant.
The Respondent No. 1 also testified that some ornaments were already snatched away by the appellant and remaining ornaments were also taken away by him when she was ousted from the house.
On the other hand, the appellant and his witnesses Haji Abdul Rasheed and Muhammad Asim testified that the ornaments are still in possession of the Respondent No. 1.
A careful perusal of the evidence of the parties reveal that the burden of proof of the aforesaid fact was upon the Respondent No. 1 but she failed to produce the cogent, sufficient and reliable evidence to discharge the burden of proof. Her evidence is vague and fictitious which cannot be relied upon thus, it is held that the ornaments are still in her possession which have to be returned to the appellant. It may be mentioned here that the Respondent No. 1 remained populated with the appellant for a period of one month only, as has been averred in Paragraph (5) of the plaint.
For the reasons listed above, I partly accept this appeal set-aside the impugned decision and decree to the extant that the appellant is entitled to receive Rs. 1,82,781/- the dower amount as consideration for `khula'. Thus, it is ordered that the Respondent No. 1 shall pay the ornaments worth Rs.1,82,781/- to the appellant as consideration for `khula'.
The appeal is disposed of in the manner indicated above. No order as to costs.
(R.A.) Appeal disposed of