' With the concurrence of learned counsel for the parties, this writ petition is being taken up and disposed of as a notice case.
2. Through this Constitutional petition, a husband, namely Muhammad Zafar, petitioner, after losing hands of his wife, Mst. Shaista Malik, respondent No.2, through a decree of dissolution of marriage, passed on 5-3-2005, by learned Judge, Family Court, Ahmadpur East in a suit titled "Mst. Shaista Malik and others v. Muhammad Zafar) has prayed for restoration of "Haq-ul-Mehr" from respondent No.2, on the basis of Proviso, added to subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964.
3. The facts, as found from the pleadings of parties, narrated by the learned counsel for the parties in this Court and from the record, attached with this writ petition, are that respondent No.2 was married with petitioner on 12-12-1996. In between both the parties, dower settled was 10 Tolas of gold ornaments, out of which 5 Tolas were paid while remaining 5 Tolas were to be paid on demand, and one house, measuring 5 Marlas, situated in Cheema Town, Bahawalpur, which was transferred through registered deed in favour of Mst. Shaista Malik by writ petitioner, Muhammad Zafar. As per written statement, Muhammad Zafar, defendant had also got transferred three more plots measuring 2-1/2 , 2-1/2 and 9 Marlas as additional dower in favour of plaintiff through three separate registered deeds, which were also situated in the same Town of Bahawalpur. With the passage of time, relations between the spouses became strained and estranged. It was asserted by the plaintiff in her plaint, that Muhammad Zafar, had intended to get a third marriage contracted, therefore, had started abusing and attributing false accusations towards plaintiff, and threatening to take her life. The mother and brother of plaintiff when had visited house of plaintiff, they were given beatings and were got arrested at the Police Station Saddar, Bahawalpur, from where they were thereafter got released by father of plaintiff through the intervention of respectables. A fake and false case of dissolution of marriage was got filed by Muhammad Zafar himself on behalf of the plaintiff, to get rid of her, which she had got dismissed through its withdrawal after gaining the knowledge of it. Fabrication of documents, transferring the property of plaintiff, allegations of commission of forgery, causing the death of first wife through electrocution was also made a ground for getting dissolution of marriage from the defendant-petitioner. To prove this imputation, copy of the statement of daughter of Muhammad Zafar from his first wife, with regard to the above accusation, made before the learned Magistrate, was also produced. So, from the above noted narrative, plaintiff had strived to bring on record the grounds to seek dissolution from the defendant-petitioner. Allegations, assertions and accusations, levelled in the suit for dissolution of marriage were controverted by the defendant-petitioner through written statement. So, issues were framed, conciliatory efforts were made parties had adduced their evidence, oral as well as documentary, and after hearing the parties and the appraisal of evidence, learned Judge, Family Court decided to dissolve the marriage of the spouses through his judgment and decree dated 5-3-2005. Aggrieved from that judgment and decree, instant writ petition has been filed.
4. The case was admitted upon the point as to whether it was incumbent upon the learned Judge, Family Court to restore to the husband the "Haq-ul-Mehr", received by the wife in consideration of marriage at the time of marriage, and thereafter during the subsistence of marriage.
5. Asserting through arguments, learned counsel for the petitioner has submitted that newly- added proviso in the year 2002 to subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964 had bound down the learned Judge, Family Court to restore to the husband "Haq-ulMehr", received by the wife, if the marriage was to be dissolved. As to factum of the marriage, settlement and delivery of dower at the time of marriage and additional dower were admitted facts between the parties, therefore, all these properties given in lieu of dower were to be necessarily restored to the husband.
6. Replying to it, with his forceful arguments, learned counsel for respondent No.2, submits that the writ petitioner-defendant had not claimed the dower at the time of filing of written statement or even while, making the statement before the learned Judge, Family Court, therefore, at this stage in the writ petition, the petitioner cannot claim and pray for the grant of return of dower because this Court has to decide case upon those facts, the foundation of which should have been laid before the learned Judge, Family Court. It has also been argued by the learned counsel for respondent No.2 that the plaintiff had not claimed the dissolution of marriage on the basis of "Khula", therefore, return of dower was not ordered. Explaining more, it has been submitted by him that in the written statement, the defendant-petitioner had not even prayed for the restoration of dower property to him. Therefore, prayer in the writ petition is not maintainable. For this purpose, he has cited Abdul Majid v. Razia Bibi and another PLD 1975 Lah.
766. The ground, which has not been raised before the learned Court below, cannot be agitated in the writ petition. For that he has relied upon Muhammad Munaf v. IXth Civil Judge and Family Judge (East) at Karachi and another 1998 CLC 319. As the petitioner had orally pronounced divorce upon respondent No.2 before filing of the suit for dissolution of marriage, therefore, the present suit was filed to get recognized that orally pronounced divorce. In these circumstances, respondent No.2 was not liable to restore the dower property to the petitioner.
7. Replying in rebuttal, the learned counsel for the petitioner has submitted that the claim or demand of dower is not necessary or a precondition for the restoration of Haq Mehr. The Court itself has to order the return of dower when it has decided to dissolve the marriage on the basis of proviso to subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964.
8. After hearing the learned counsel for the parties, perusal of the record and considering the provisions of relevant law, the following conclusions have been drawn by me:--
9. Before proceeding with the discussion, it is necessary to reproduce the wordings of newly-added proviso to subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964, which is as under:-- Section 10
(1) .......................................................
(2) ............................................
(3) .........................................................
(4) .........................................................
"Provided that notwithstanding any decision or judgment of any Court or Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage."
10. The conditions, which are deducible from the above-noted proviso are:--
(a) There must be failure of reconciliatory efforts, in a suit for dissolution of marriage, which task must have been undertaken by the learned Judge, Family Court, in the suit.
(b) The decree for dissolution of marriage shall be passed when the reconciliation efforts do not prove fruitful.
(c) At that stage, the decree for dissolution of marriage has to be passed forthwith.
(d) The restoration of Haq Mehr has to be ordered with the passing of that decree in that event.
(e) Haq Mehr (dower) must have been received by the wife and that must be in consideration of marriage.
(f) Haq Mehr (dower) can only be restored/ordered to be returned which was given at the time of marriage, not before or afterward, in other words, additional Haq Mehr or gift has not been included in it.
11. From analytical study of the above-noted provision, it appears to reason that the aim of this provision was to expedite the disposal of dissolution of marriages suits because it was observed that dissolution of marriage suits were being prolonged on fetish technicalities by the interested persons. This newly-added provision connotes a summary minter and method of disposal of dissolution of marriages suits, at the earliest stage of such suits, particularly at the stage of pre- trial conciliation efforts. If the parties and the Court have entered into full-fledged trial of the suit and parties bring their evidence in Court, the statements of the witnesses are recorded, and the hearing of arguments are resorted, then this provision, to my mind, loses its significance. The stage noted in the proviso is of the date when reconciliation efforts are being made by the learned Judge, Family Court and the Court considers it impossible that the parties would reconcile their differences in future. If this stage is not availed of by the learned Judge, Family Court or by the parties and the matter is taken to contest on the basis of evidence brought on the record, after full hearing and complete trial of the suit, then it would be a discretion of the Court .To pass a decree by invoking the powers of this proviso, in which case the restoration of Haq Mehr would be a pre- condition, but if the Family Court decides or the parties desire that upon the failure of reconciliation efforts, decree may not be passed and the merits of the case should be touched and decided after thorough full reasoned judgment in such a case, this above-noted proviso would have no application.
12. Another important question, which crops up in the mind, is as to whether a husband, who by his acts, deeds and conduct, if makes the life of his wife pitiable and miserable and bring her to such a blind corner wherefrom aforesaid wife would be compelled to knock the door of the Court for dissolution of marriage, as to whether in such case, the wife should return the dower or restore the benefits to such a husband? Whether a husband, who has enjoyed the company of a woman for some time but after that wants to get rid of the company of that woman, as he wanted to kick her out of his house and creates such an atmosphere and circumstances so as to compel his wife to get divorce from a Court, whether in such a case, Proviso above indicated, would require mandatorily the plaintiff to return the dower. The case of Habiba Binte Sohl, who had brought her case before the Holy Prophet (May peace and blessings of Allah be upon him), clearly depicts that aforesaid lady had nothing to complain against the acts, deeds and conduct of her husband, namely Sabit Bin Qais, the Companion (May Allah be pleased with him) of Holy Prophet (May blessing and peace of Allah be upon him). The reason of disliking shown was the dark colour of the aforesaid Sahabi-eRasool (May Allah be pleased with him) and no other complaint or grievance was alleged and shown with regard to the character or conduct of the aforesaid Sahabi-e-Rasool (May Allah be pleased with him). So, from the above instance, we are guided that when the disliking or hatred is not because of the coercion, duress or other hateful and compulsive acts and deeds of the husband, who wants to abandon the company of his wife and has adopted such artful designs as to force his wife to approach the Court/the Qazi of the time, for dissolution, in such cases, the order of return of dower would not be necessary. To be more precise, when disliking, hatred or aversion is the cause having arisen from the unjustified and illegal acts, deeds and behaviour of husband with mala fide intent, then the order of return of dower would not be made.
13. From the appreciation of evidence, if such an atmosphere having created by husband is proved by the wife, in such case restoration of Haql Mehr would not be necessary and mandatory.
14. In the instant case, it is an admitted fact that decree for dissolution of marriage was not granted at the reconciliation stage. The parties had contested till its last stage and the learned trial Court had to E pass the decree after assessment of evidence. Therefore, the requirements of Proviso to subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964 were not present.
15. When the learned Judge, Family Court has not passed the decree under the above-noted Proviso and the defendant husband has also not claimed and prayed for the return of dower given to his wife at the time of marriage, in his written statement or at the opportune moment of the recording of his statement and thereafter in whole of the proceedings of the trial before the judgment of the learned trial Court was announced, it would be deemed and presumed that such claim and prayer was waived by the husband. The demand must be made in the trial Court, so that the other party must have chance to meet with it and the Court should also have the opportunity to ascertain and determine the dower paid or delivered to the bride. The stage in the suit before the learned trial Court was the best and proper place where(?) such question was to be raised. As all the advantageous and proper situations, events and occasions were missed by the petitioner/defendant himself in the case, therefore, the petitioner now cannot claim the indulgence of this Court for the return and restoration of dower. In this extraordinary jurisdiction, this Court has to examine the vires, legality and correctness of the judgment of the learned trial Court having been passed or not in consonance with the provisions of law and facts of the case as prayed and claimed.
16. Accordingly, having not found any illegality and unlawfulness in the judgment and decree of the learned trial Court, I do not intend to exercise this extraordinary jurisdiction, particularly in the above-noted circumstances. The writ petition is, therefore, dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.