MIAN FASIH-UL-MULK, J.- Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Muhammad Ehsan has questioned the impugned judgment and decree of learned Additional District Judge-V, Abottabad dated 27-11-2008, whereby he passed a decree for recovery of dower amount of Rs,1,50,000 and maintenance allowance of Rs,2000 per month from June, 2007 to September, 2007 in favour of respondent No, 1.
2. Briefly stated the facts of the case are that the marriage between spouses, petitioner and respondent No,l, took place on 21-9-2006 in consideration of Rs,1,50,000 as dower, dowry articles to the tune of Rs,2,50,000 and Rs,2000 as maintenance allowance in case of desertion; that the relations between the parties became strained and petitioner was allegedly forced to leave the house. The respondent requested the petitioner to rehabilitate her but all in vain. The learned Civil Court Judge-X/ Judge Family Court, Abbottabad vide judgment and decree dated 20-6-2008 granted decree for dissolution of marriage on the basis of khula, dowry articles as per list annexed with the plaint or in alternate their market value i.e, Rs,2,50,000 and maintenance allowance for the period of Iddat. Feeling aggrieved the respondent filed an appeal which was allowed and decree for recovery of dower amount to the tune of Rs,1,50,000 and maintenance allowance @ Rs,2000 per month was passed in favour of respondent No,l. Hence, this writ petition by the husband/petitioner.
3. Learned counsel for the petitioner mainly contended that in case of dissolution of marriage on the basis of khulla the wife was not entitled to the recovery of dower amount. Further, impugned order of dissolution of marriage on the basis of khulla was not appealable. Therefore, the impugned judgment and decree is not sustainable to this extent.
4. As against that, the learned counsel for the respondent supported the impugned judgment and decree.
5. We have heard the learned counsel for the parties at length and perused the available record.
6. A perusal of record would show that the judgment and decree for dissolution of marriage on the basis of khulla was not appealable. The learned appellate Court conveniently ignored this important aspect though the ground of competency of appeal was agitated by petitioner in his arguments as mentioned in the impugned judgment but the same was dealt with in a slipshod manner. The learned appellate Court failed to appreciate that in the instant case the relief of dower amount could not be considered in isolation but the same had nexus with the dissolution of marriage based on khulla and, therefore, the findings of trial Court for not granting dower could not be reversed without disturbing the ground of khulla which essentially would tantamount to an appeal against dissolution. No appeal lies against dissolution whether it is on the ground of cruelty of khulla. The learned appellate Court exercises appellate jurisdiction and has wrongly presumed himself as Qazi which is not only against Islamic jurisprudence but also Family Laws prevalent and governing family disputes. Para. 4 of the impugned judgment is also disapproved with the result that the grant of dower by the appellate Court is without jurisdiction. As far as maintenance allowance is concerned that has been proved on record and findings of appellate as well as trial Courts are maintained.
7. Consequently, we partially allow the petition to the extent that the impugned judgment and decree granted to respondent No,l for the recovery of dower amount of Rs,1,50,000 is set aside while remaining decree of maintenance granted by trial as well as appellate Court is upheld and left intact. No orders as to costs.