' DR. SAJID QURESHI, J.---The parties were married on 20-10-1999 in Islamabad and soon after marriage the respondent No,2 join the petitioner at his house in Rawalpindi. Out of this wedlock one daughter namely Farwah Zaidi was born and she is presently in custody of respondent No,2. Initially the relationship between the parties was good but after some time the relationship became strained; that on 16-2-2002, the respondent No,2 attended the marriage ceremony with the petitioner and on the next day the respondent No,2 participated in a Walima and she informed the petitioner that she wants to see her ailing maternal grand mother. The respondent No,2 left with her father and brother allegedly taking jeweler, bonds worth Rs,40,000 each. The petitioner went to Lahore but on his return, he found that respondent No,2 was not at home and was informed that she would not be coming back to him and that the relationship had been further strained. The petitioner trying to bring her back, but she and her family refused and he ultimately filed a suit for Restitution of Conjugal Rights in the Court of learned Family Judge, Rawalpindi and the suit was decreed vide judgment and decree, dated 25-7-2003. As a counter blast the respondent No,2 filed the following four cases before the learned Family Judge, Islamabad.
(i) Suit for dissolution of marriage on the basis of khula.
(ii) Suit for recovery of dower amount.
(iii) Suit for recovery of dowry articles.
(iv) And Suit for recovery of maintenance for minor daughter.
2. The petitioner contested the suits and the Hon'ble Trial Court decreed all the suits vide a consolidated judgment, dated 7-10-2003. The suit for recovery of dower amount was decreed in favour of the respondent No,2 in the suit for recovery of dowry articles the decree was passed up to the extent of the list presented by the petitioner (excluding the jewellery), the suit for recovery of maintenance allowance for minor (daughter) was decreed in terms of Rs,2,000 per month. The petitioner assailed the judgment in the suit for recovery of dower amount, recovery of maintenance and suit for dissolution of marriage up to extent of condition imposed by the learned Trial Court.
The respondent No,2 filed an appeal in case of recovery of dowry articles, the Hon'ble Appellate Court dismissed the appeal against dissolution of marriage at limine stage and all the other three suits were decided by a consolidated judgment.
3. The learned counsel for the petitioner stated that the respondent had alleged cruelty, non- maintenance, bad character and eventually wanted a khula; that the allegations were un-founded and the learned trial Court decreed the suit for dissolution of marriage on the basis of khula with a condition that she was not entitled for her maintenance against the consideration of khula.
4. Reliance was made on injunction of Holy Quran and Hadith as envisaged in (Surah Baqra Two Ayat 229). Reliance be made on PLD 1967 SC 97 (Khurshid Bibi v. Muhammad Amin), 1999 CLC 160 (Shafiqan Bibi v. Senior Civil Judge), PLD 2004 Lahore 399 (Muhammad Farooq v. Judge Family Court), 2005 YLR 2799 (Muhammad Ejaz Ahmad v. Judge Family Court and another), 2007 CLC 422 Lahore (Farhana Jabeen v. ADJ), PLD 2006 Karachi 272 (Abdul Sattar v. Mst. Kalsoom) 2003 MLD 1077 Karachi (Muhammad Ali v. Nusarat Jabeen). The learned counsel in the suit for recovery of dowry articles stated that according to the list all the articles had been settled except the jewellery.
In the suit for recovery of maintenance, the learned counsel stated that the finding of the learned Trial Court and Appellate Court is not in accordance with the law and facts of the case and that the lower Court had decided this issue but the respondent had failed to prove her case.
5. The learned counsel for the respondent stated that a dower of Rs,100,000 was fixed at the time of Nikah and the nature of the dower has been mentioned as prompt. The allegation that the petitioner had paid the dower on the night of their wedding is not sustained in presence of witnesses because there would no witnesses and the payment has not been established. On the point of the maintenance, the learned counsel for the respondent stated that the petitioner does have substantial income and the payment of maintenance allowance of Rs,2,000 is correct. As far as, the list of dowry articles is concerned, the list has been agreed upon by both parties except the jewellery. The learned counsel relied on the following judgments, 1996 CLC 250 Karachi (Habib Ahmad Qureshi v. Family Court Judge), 1994 MLD 2188 Lahore (Abdul Rehman Siddiqi v. Nasim Bibi), 2008 CLC 590 Lahore (Muhammad Usman v. Shabana Noreen) and 1995 CLC 296 Lahore (Mst.
Nazir v. ADJ). All judgments indicating that the wife was entitled to dissolution of marriage on the ground of khula, since it was intolerable for the wife to live with the husband and that this was allowed in case of extreme hatred between the wife and her husband.
6. Argument heard. Record perused and case-law examined.
7. The petitioner's contention is simply confined to the fact that his wife has dissolved the marriage on the ground of khula and there is a dispute as to the dower of Rs,100,000. The dispute on the maintenance of the child is not highlighted by both counsel, so, therefore, it is unreasonable to touch upon this aspect. The contention for the dowry articles during the course of arguments, revealed that all items on the list have been returned to each other except the jewellery. This becomes a matter of evidence and statements which is exercisable before the Trial Court or by mediation by both parties. The case-law is very clear in that evidence on record must be established and that the wife could not live with her husband any more, hence the wife filed a suit for dissolution of marriage on the basis of khula. In accordance with the Holy Quran and Sunnah, Khula can be granted, however, this is disliked not only by Allah Almighty but by society as a whole and relying on the judgment of "Khurshid Bibi v. Muhammad Amin." (ibid).
8. In the instant case, I am convinced that if the wife cannot live with her husband any more and she finds him intolerable then khula may be granted in accordance with the principles of Holy Quran and Sunnah. However, she is not entitled to the dowry amount of Rs,100,000 since this is a factual dispute to which no evidence has been provided at the Trial Court level. Relying on the above case-law including Khurshid Bibi's case, the amount of Rs,100,000 is therefore, waived of.
With these observations the writ petition is partly allowed to the extent mentioned above. Parties to bear their own costs.