' MALIK HAMID SAEED, J.---This case pertains to a family dispute between Saima Irum, petitioner No,1/wife and Major Muhammad Tariq Javed, respondent/husband. The petitioner/wife and her children sued the respondent before the Family Court, Peshawar for dissolution of marriage on the ground of cruelty etc., recovery of dower and maintenance etc. The learned trial Court after pre- trial conciliation proceedings passed order under Ordinance No,LV of 2002 whereby section 10 of the West Pakistan Family Courts Act (XXXV of 1964) has been amended to the effect that, "Provided that notwithstanding any decision or judgment of any Court, Tribunal, the Family Court in a suit fdr dissolution of marriage, if conciliation 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". The learned trial Judge although dissolved the marriage of petitioner No,1 with the respondent but with regard to dower and maintenance etc., it was held that the same would be decided after recording of evidence of the parties. Issues in this regard were framed. The case could however not be finally adjudicated upon due to submission of various applications from both the sides on various aspects of the case, including a review application of the petitioners for reviewing the order of the trial Court with regard to dissolution of marriage without dower under amending Ordinance ibid. The learned trial Judge vide impugned order dated 26-6-2004 has however, dismissed the review application of the petitioners and the case has been confined only to the extent of guardianship alone. As according to the injunctions of Islam, it is obligatory for a husband that he while divorcing his wife shall pay to her unpaid part of the dower even where the wife, according to the view of various Muslim jurists, is compelled to resort to 'Khula' due to the cruelty of the husband, and as similar view has been adopted by this Court in the case of Karimullah v. Mst. Shahbana, W.P. No,1102 of 2002, decided on 16-1-2003 wherein it is held that in case of 'Khula' where the Court, through a legal, cogent and convincing evidence, comes to an irresistible conclusion that the husband because of his machismonian attitude and displaying his masculine aggressiveness has compelled the wife to ask for dissolution of marriage on the ground of "Khula", then the Court shall have the power to refuse the return of the dowered property/amount to husband or to release him from the liability of payment of dower, therefore, the necessity of placing the matter before a Full Bench for final decision was felt on the last date of hearing i.e, 3-6-2004.
2. Today the learned counsel appearing for the respondent raised an objection that this Court cannot look into the alleged repugnancy of the enacted provisions of law to the Injunctions of Islam, as it is the job of the Federal Shariat Court, but we are not convinced with the same, as we are not going to adjudge the repugnancy of the added Proviso to section 10 of the Family Courts Act, 1964, but to interpret the same in reference to other provisions of the Act for the future guidance of the Family Court, for, the matter is of much public importance.
3. Perusal of the impugned orders dated 24-7-2003 and 26-2-2004 of the two learned Presiding Officers of the Family Court reveals that the former interpreted it, according to her own wisdom, as if after passing decree for dissolution of marriage in favour of wife at pre-trial conciliation proceedings, the wife is liable to pay/return dower to the husband, but as the nature and value of the dower is disputed as per pleadings of the parties, therefore, the same would require pro and contra evidence, whereas the latter has interpreted it in the sense that after passing decree for dissolution of marriage in favour of wife, the issue of dower had become redundant and the Family Court would only decide'the issue of guardianship involved in the case.
4. Both the aforesaid interpretations offered to the relevant provisions of section 10 by the learned Judges of the Family Court are not correct for the simple reason that while relying on the added proviso to section 10 of the Family Courts Act, 1964, the learned Judges of the Family Court have totally ignored the other added proviso to section 9 of the Family Courts Act, 1964 through the same amending Ordinance No,LV of 2002, which reads as under:-- "9.........................................
' Provided that the proviso to subsection (4) of section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of Khula."
' Here, an expressed 1 intention is conveyed by the legislature that the proviso to subsection (4) of section 10 (requiring the wife to restore to the husband the Haq Mehr received by her in consideration of marriage at the time of marriage) shall be applicable only to those cases in which the Family Courts grant decree on the ground of Khula.
5. The concept of "Khula" not only has been interpreted by various scholars in the number of books on the subject, but this Court in so many judgments, particularly in the case of Karimullah v.
Shabana and 2 others (PLD 2003 Peshawar 146) has thoroughly examined this aspect with the following relevant observations, which are hereby reproduced for the sake of convenience as under:-- "10. We also receive with approval the rationale of the judgment delivered by a learned Single Judge in case of Anees Ahmad v. Uzma (PLD 1998 Lah. 52), wherein it was observed thus:-- "the position is summed up in Al-Huidaya:-- ' if the cruelty is from the side of the husband his realizing a compensation from the wife for her relinquishment (Khula) is disapproved. If insubordination is from the wife, in that case,the husband may take back only what property which he had given to her ' It was further observed that in case where "Khula" is decreed on the basis of cruelty the Court may not give any compensation to the husband."
12. On a logical and philosophical dimension of the matter it can also be argued that a husband if left unchecked shall apprehend no loss if he, for any reason, develops a disposition to break the bondage of marriage and resorts to cruelty with a mind to compel the wife to demand 'Khula' instead of giving her "Talaq". In this way he will secure for him the benefit of retaining or getting back the dowered property/amount. Such a cruelty would un-doubtedly be a purpose-oriented one of which the law and Courts must take notice so as to keep the husband off the ache of cruelty.
13. Thus on the consensus of opinion of the notable jurists of Islam referred above with the breviate of their respective commentaries and in, the light of the cited judgments we legitimately feel to hold that where the Court, through a legal, cogent and convincing evidence, comes to an irresistible conclusion that the husband because of his machismonian attitude and displaying his masculine aggressiveness has compelled the wife to ask for dissolution of marriage on the ground of 'Khula' then the Court shall have the power to refuse the return of the dowered property/amount to husband or to release him from the liability of payment of dower."
The restoration of dowered property in case of Khula in the light of the dictate of Quran, the sayings of Prophet (P.B.U.H.) and the interpretations of the various Muslim Jurists could thus be summed up briefly in the context that if a husband by his cruel attitude compels the wife to seek Khula, keeping behind the purpose of taking back the dowered property given by him to the wife, in that case he would not be entitled to its restoration, but if the attitude of the wife is not good towards her husband and she is reluctant in the performance of her marital obligations or becomes unfair in keeping her modesty, in that case the husband would be entitled to the restoration of the dowered property and same is the crux of the judgment of this Court delivered in the case, referred above.
6. Therefore, in our view, the word 'Khula' should be construed as subject to the presumption that the legislature does not intend, by its general language, to subvert the established principles of Shariah on the subject and has left it for the Family Courts to decide whether to dissolve the marriage between the spouses on the ground of Khula or not. If from the plaint submitted by the wife, the only prayer of the wife is to dissolve her marriage on the ground of Khula, then the Family Court under added provisos to sections 9 and 10 of the Family Courts Act, 1964 could dissolve the marriage between them on the ground of Khula and could also order for the restoration of the Haq Mehr received by the wife in consideration of marriage, but if the claim of the wife is based on other grounds also, such as cruelty etc., then the Family Courts shall proceed with the case in accordance with law to determine by recording of evidence that the fault lies in which of the parties and which of the parties are entitled to it.
7. In this case, the learned Judge Family Court vide order dated 26-2-2004 has not only dissolved the marriage between the parties without specifying as to whether the marriage is being dissolved on the ground of Khula or otherwise, but a look at the plaint of the petitioner/wife would also reveal that she has not at all asked for 'Khula' divorce and merely sought it on the grounds of cruelty, non- maintenance, non-payment of dower, desertion/separation for more than one and a half year and failure upon respondent/husband to perform his marital obligation without any reasonable cause, reason and fault on the part of petitioner/wife. In such a situation, if the learned Judges of the Family Court are correct in dissolving the marriage between the spouses in the pre-trial conciliation proceedings by invoking the provisions of the added proviso to section 10 of the Family Courts Act, 1964, they are wrong on the point of restoration of the dowered property, because neither the case would be proceeded only for adjudging the entitlement of the husband to the restoration of the Haq Mehr, nor the issue of dower would become redundant, but it would proceed for proper determination of the entitlement of both the parties to the receipt of dower even if the marriage is dissolved on the ground of Khula.
8. For the aforesaid reasons, we accept this writ petition and set aside both the impugned orders of the learned Family Court with the directions to proceed with the case in accordance with law and the observations made hereinabove. No order as to costs. The parties are directed to appear before the Family Court on 2-12-2004.
9. The office is directed to send copies of this judgment to all the District Judges and Family Courts in the Provinces for future guidance.