' MS. JAMILA JAHANOOR ASLAM, J.--- The petitioner contends that respondent No.3 filed a suit for dissolution of her marriage on the grounds of habitual cruelty, physical and mental torture. She also took the ground of second marriage. At the very onset it would be apt to mention here that the petitioner denies his second marriage and respondent No.3 has failed to produce any evidence qua the same.
2. On the other hand the petitioner filed a suit for restitution of conjugal rights. The petitioner contended in his suit that as respondent No.3 was living away from the material abode of her own free-will and after sending Jirgas to respondent No.3 to patch up and due their failure to bring respondent No.3 home he was compelled to file the suit for restitution of conjugal rights. This suit was dismissed.
3. When respondent No.3 first filed her suit for dissolution of marriage, the petitioner contested the suit and in his written statement has admitted that 16-1/2 Tolas of gold ornaments along with 6 shops at Station Road, Fateh Jang were given to respondent No.3, which she was liable to return to the petitioner in case respondent No.3 claims dissolution of the marriage.
4. The written statement to the suit for dissolution of marriage was filed on 22-6-2006 and 28-6- 2006 was the next date, was fixed for reconciliation proceedings, which failed and issues were framed which were: ---
(i) Whether suit of the plaintiff is defective, not proceedable and is liable to be dismissed? OPD
(ii) Whether plaintiff is entitled to the decree for dissolution of marriage on the grounds set out in the plaint? OPP
5. The suit of respondent No.3 was decreed in her favour vide impugned judgment and decree dated 5-3-2008.
6. The petitioner being aggrieved of the judgment/decree dated 5-3-2008 impugned the same in an appeal. He prayed that the impugned judgment and decree be set aside and the entire dower and other things mentioned in the written statement be returned to the petitioner. The appeal preferred by the petitioner was dismissed vide order dated 17-11-2008.Being further aggrieved the petitioner has invoked the constitutional jurisdiction of this Court on the grounds that both the impugned judgment/decrees of the Court are against the law and facts on file.
7. The petitioner contends that as the Family Judge had dissolved the marriage under the provisions of section 10(4), Family Courts Act, 1964 it was incumbent on him to order the restoration of the dower amount which, he failed to do. He has brought to the attention of this Court that prior to the decreed suit for dissolution of marriage respondent No.3 had filed a suit for dissolution of marriage on the basis of Khula, which she had withdrawn. This fact has no bearing on the matter in hand.
8. The petitioner also avers that the Trial Court has given no finding qua the return of the dower amount as envisaged by section 14(4) Family Courts Act, 1964. The appeal he had filed, he avers, was not against the dissolution of the marriage but only for the return of dower amount and things mentioned in the written statement.
9. The counsel for respondent No.3 has vehemently opposed the contentions of the petitioner. His claim is that for a start no appeal lay against a suit for dissolution of marriage and consequently the writ petition too was not maintainable.
10. After hearing the arguments of both the counsel and going over the record I have observed that the suit for dissolution of marriage filed by respondent No.3 was on grounds of cruelty and physical and mental abuse/torture.
11. It is very difficult to prove grounds of cruelty and physical and mental torture. Nevertheless it is not an unknown phenomenon in our society, or for that matter in any society in the world. It is obvious that the petitioner was living abroad and respondent No.3 didn't have much of a matrimonial life. Moreover, in his evidence the petitioner has stated in no uncertain terms that he plans to get married in a couple of months, so the fact that there is already somebody waiting in the wings for him cannot be ruled out. Matter of fact, it adds credibility to respondent No.3's version that the petitioner has re-married. Re-marriage is to a ground for dissolution of marriage under the Dissolution of Marriages Act, 1939 but the mental torture a women would go through in the case of her husband's second marriage is something that cannot be appreciated by the male gender to its full extent. Thus the contention of respondent No.3 that she has suffered mental torture at the hands of the petitioner stands proved.
12. The petitioner has taken a stance that the Family Court failed to frame an issue qua the return of things taken by respondent No.3 at the time of her departure from the marital abode despite his bringing up the point. This is not terrible as he could have filed an application for framing of an extra issue and at least made his demand a part of the Court record.
13. The counsel for respondent No.3 has pointed out that in the response to para 6(c), of the plaint where respondent No.3 mentioned the petitioner's second marriage an evasive reply was given. I tend to agree with this.
14. The stance of the petitioner that in both the impugned judgments IF and decrees the provisions of section 10(4) Family Courts Act, 1964 have been misinterpreted and not applied also is not tenable.
15. Section 10(4), Family Courts Act, 1964 reads as under:--- "if no compromise or reconciliation is possible the Court shall frame issues in the case and fix a date for recording of evidence". 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 a 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."
16. Be that as it may, as many as ten grounds are given under the Dissolution of Marriages Act, 1939.
Had the intent of the Legislature been to treat these grounds as grounds for Khula this law would have been abrogated a long time back. It has been held in PLD 2002 SC 273 "Wife would be entitled to recover amount of dower and dowry when marriage is dissolved on various grounds, including Khula. If marriage is dissolved solely on ground of Khula the situation would be different. In such case, it would be examined keeping in view the offer wife made for getting marriage dissolved on ground of Khula". Section 10(4) pertains only to marriages dissolved on grounds of Khula. In present case respondent No.3 did not ask for her marriage to be dissolved on grounds of Khula". She is thus found entitled to keep whatsoever she has acquired by reason of her Nikah to the petitioner despite her decree for dissolution of marriage.
' Writ petition disposed of.