' SH. AHMAD FAROOQ, J.---Through the instant petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside the order dated 16-3- 2010, whereby the learned Judge Family Court, Lahore has decreed the suit of the plaintiff/present respondent No,2 for dissolution of marriage under section 10(4) of the Family Courts Act, 1964. The petitioner has also prayed that a direction be issued to respondent No,1/Judge Family Court to decide the suit for dissolution of marriage afresh in accordance with law.
2. The facts, essential for the adjudication of the lis in hand, are that the petitioner was married to respondent No,2 on 19-12-2004 in consideration of dower of Rs,20,000 which was paid by the respondent No,2 in the shape of gold ornaments weighing 30 tolas at the time of "Nikah". Two sons namely, Muzammal Mudassar and Faseeh Butt, were born, out of the said wedlock, who are in the custody of respondent No,2. The petitioner contended that respondent No,2 filed a suit for dissolution of marriage and recovery of dower, past maintenance of Rs,3,54,000 and future maintenance at the rate of Rs,9,000 per month and dowry articles in the Court of Senior Civil Judge/Judge Family Court, Lahore, on 3-12-2009. The present petitioner contested the said suit by filing his written statement, wherein averments of plaint were denied. The present petitioner also claimed that the dower in the shape of gold ornaments weighing 30 tolas was paid to present respondent No,2 at the time of "Nikah", which is evident from column Nos. 13 and 14 of "Nikah Nama" dated 19-12-2004. The learned Judge Family Court recorded the statements of the parties on 16-3- 2010 and without passing any order for the return of dower in the shape of gold ornaments weighing 30 tolas and without framing proper issue and recording evidence thereon, decreed the suit for dissolution of marriage of respondent No,2 on the ground of "Khula" vide judgment and decree dated 16-3-2010. Hence, the instant petition.
3. It is contended by the learned counsel for the petitioner that respondent No,1/Judge Family Court, Lahore, erred in law and violated the provisions of section 10(4) of the West Pakistan Family Courts Act, 1964, which provided for passing of decree for dissolution of marriage on the ground of "Khula" subject to the return of the dower or deposit in the court. Learned counsel for the petitioner argued that at the most, a preliminary decree for dissolution of marriage on the ground of Khula could be passed on the return of the disputed dower amount or its deposit in the Court by the present respondent No,2. In support of his arguments, learned counsel for the petitioner has relied on judgments, reported as Abdul Rehman v. Mst. Hakim and another PLD 2007 Kar. 344, Muhammad Ijaz Ahmad Khan v. Judge Family Court and another 2005 YLR 2799 and Abdul Sattar v.
Mst. Kalsoom PLD 2006 Kar.
272.
4. Conversely, the learned counsel for the respondent No,2 opposed the instant petition on the ground that respondent No,2, while getting her statement recorded before the Judge Family Court, Lahore on 16-3-2010, has denied the receipt of the amount of dower. He further submitted that the learned Judge Family Court, while decreeing the suit of the present respondent No,2 for dissolution of marriage' under section 10(4) of the Family Courts Act, 1964, has framed issue No,5 regarding the controversy between the parties in respect of payment of dowerd amount in the shape of gold ornaments weighing 30 tolas at the time of "Nikah" as per contents of the "Nikahnama". He argued that according to the proviso to subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964, an order for restoration of "Haq Mahar" could only be passed along with a decree for dissolution of marriage on the failure of the reconciliation between the parties, in case, the "Haq Mahar" had been received by the wife in consideration of marriage. Learned counsel for respondent No,2 pleaded that in this case, the wife/present respondent No,2 denied the receipt of "Haq Mahar" vide her statement dated 16-3-2010, which she made during the pre-trial reconciliation proceedings. He maintained that the decree dated 16-3-2010 for dissolution of marriage has been rightly passed by the Judge Family Court, Lahore, in favour of present respondent No,2, under section 10(4) of the West Pakistan Family Courts Act, 1964. In support of his arguments, he relied upon judgments reported in Muhammad Ijaz Ahmad Khan v. Judge Family Court and another 2005 YLR 2799 and Aurangzeb v. Mst Gulnaz and another PLD 2006 Kar.
563.
5. Arguments heard. Record perused.
6. In the suit, which the *sent respondent No,2 filed for dissolution of marriage etc. On 3-12-2009, she specifically mentioned that dower amount of Rs,20,000 was fixed at the time of marriage, which has not been paid till date. No doubt, the defendant/present petitioner in his written statement filed in the Court of learned Judge Family Court, Lahore, has contended that the dower amount in the shape of gold ornaments weighing 30 tolas have been paid at the time of Nikah.
From the above divergent contentions of the parties, it is obvious that the learned Judge Family Court, Lahore could not have passed an order on 16-3-2010 for the return of the dower amount to the husband as the wife has specifically denied the receipt of the same at the time of the marriage, not only in her plaint but also in the statement, which she made in the Court on 16-3- 2010. The learned Judge Family Court has, however, framed issue No,5 in this regard as follows:-- ISSUE NO.5 ' Whether the plaintiff has received dower amount in shape of gold ornaments weighing 30 tolas at the time of "Nikah" as per contents of the "Nikah Nama"? OPD.
7. Now only the question which is to be determined by this Court is that whether a decree for dissolution of marriage could be passed by the learned Judge Family Court, Lahore under proviso the subsection (4) of section. 10 of the West Pakistan Family Courts Act, 1964, without passing an order for return of Haq Mahar to the present petitioner. Learned counsel for the, petitioner, during the course of his arguments, has relied upon Muhammad Ijaz Ahmad Khan v. Judge Family Court and another (supra) and Abdul Rehman v. Mst. Hakim and another (supra). However, incidentally, in both the aforesaid cited judgments, the decree for dissolution of marriage was set aside, rather, it was held that the object of proviso of subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964, was to provide specific remedy without any undue delay so as not to keep a wife in a state where she may be deprived of her right to re-marry, while she is of marriageable age, in addition to suffer the mental agony and tension.
8. It was also held in the aforementioned reported judgments that the very object for which the remedy was provided would be defeated, in case, the dissolution of marriage is not allowed till the final decision regarding the controversy of the amount or payment of dower. In such an eventuality, even frivolous claim for dower amount would be used to delay and defeat the purpose of the statute. Moreover, it has been held in Aurangzeb v. Mst. Gulnaz and another (supra) that the restitution of the dower is not an indispensable condition for grant of "Khula" and non-restoration of dower and other benefits will not have any effect upon the validity of decree for dissolution of marriage. It has been further observed in the said quoted judgment that the Family Court, taking into consideration the overall facts of the case, could dissolve the marriage by way of "Khula" without ordering restoration of dower as the same is within the discretion of the Family Court and a decree passed thereon cannot be termed as without lawful authority so as to warrant interference by the High Court under its Constitutional jurisdiction. Similarly, a decree for dissolution of marriage without payment of "Zare-Khula" was upheld and the case was remanded to the learned Judge Family Court concerned for grant of an opportunity to the parties for production of evidence for determination of receipt of amount of Haq Mahar in consideration of the marriage at the time of marriage, vide judgment reported in Muhammad Ijaz Ahmad Khan v. Judge Family Court and another 2005 YLR 2799.
9. In view of above, it is held that passing of an order for restoration of "Haq Mahar", which has not been received by the wife in consideration of marriage at the time of the marriage is not a sine qua non for decree for dissolution of marriage passed by a Family Court in view of proviso of subsection
(4) of section 10 of the West Pakistan Family Courts Act, 1964. In the instant case, the learned Judge Family Court has already framed an issue in respect of the controversy of the receipt of the dower amount by the wife in the shape of gold ornaments weighing 30 tolas at the time of "Nikah" as per contents of the "Nikahnama" and the same would be decided after recording evidence of the parties. However, the decree for dissolution of marriage passed by the learned Judge Family Court, Lahore, on 16-3-2010, is not contrary to the law as the object and scope of amending section 10(4) of the West Pakistan Family Courts Act, 1964, was to avoid delay in the proceedings and to afford a remedy to wife seeking "Khula", expeditiously.
10. In view of the above, the impugned order dated 16-3-2010 is neither illegal nor without lawful authority and as such, no interference is warranted by this Court under its constitutional jurisdiction. Resultantly, the instant petition, being devoid of any merit, is, accordingly, dismissed.