ORDER SYED HASAN AZHAR RIZVI. J.---All these three matters i.e. C.P. No. D-165 of 2010, C.P. No. D-1407 of 2009 and Civil Transfer Application..No.36 of 2009, wherein contesting parties are same, therefore, we intend to dispose of by one and common order.
2. The petitioner through the Constitutional Petition No. D-165 of 2010 has challenged the impugned order dated 6-7-2009 passed by the learned XIV Family/Civil Judge at Karachi Central in Family Suit No.395 of 2009 whereby the application of the petitioner for return of title documents of the property from the Respondent No.2, which was gifted to her, was dismissed. Hence this petition..
3. Precisely the facts of the case as narrated by the petitioner in the memo of petition are that the petitioner married with the respondent No.2 on 24-7-1983 against the dower amount of Rs.19,786 as prompt, out of said wedlock four sons were born. In the year 2001 the Respondent No.2 filed a Suit bearing No.888 of 2001 against the petitioner before learned with Civil and Family Judge, Karachi Central, which was disposed of through compromise in which the petitioner gifted his House bearing No.R-4129, admeasuring 120 sq. Yards in Sector 15-A/4, situated at North Karachi, Buffer zone, North Nazimabad, Township, Karachi. Again in the year 2009 the respondent No.2 filed a Suit bearing No.395 of 2009 for Khula against the petitioner, which is pending adjudication before the respondent No.1 wherein application of the petitioner for return of title documents of the said property from the respondent No.2 (which is impugned. Herein) gifted to her, was dismissed.
4. It is, inter alia, contended by the learned counsel for the petitioner that he has relied upon many case-law of the Honourable Apex Court as well as of this Court in his favour but the learned trial Court has failed to consider the same even she did not take pains to discuss it in the impugned order particularly the judgment reported in PLD 1967 SC 97 (Mst. Khurshid Bibi v. Baboo Muhammad Amin). According to the learned counsel, while passing the impugned order, she did not apply her judicial mind. Learned counsel further contended that admittedly. The petitioner had gifted the said property consequent upon a compromise for disposal of the Suit bearing No.888 of 2001 filed by the respondent No.2 against the petitioner. Learned counsel while referring to an unreported judgment passed by this Court in C.P. No. D-1974 of 2008 has contended that when in various sects, Personal Law is available, that should be made applicable for resolving the dispute between the parties.
5. On the other hand, Mr. Zayyad Khan Abbasi learned counsel appearing on behalf of the respondent No.2, contended that the learned trial Court has rightly dismissed the application of the petitioner for return of title documents of the property from the respondent No.2, which was gifted to her by the petitioner through a Registered Declaration of Gift. According to the learned counsel, the case-law cited by the learned counsel for the petitioner in his favour before the learned trial Court viz. C.P. No.1974 of 2008 and C.P. No. D-1911 of 2008 are not applicable in the instant case, as the parties in the cases referred. To above, belong to Shia Sect where their. Personal Law is applicable. Mr. Abbasi, further emphasized that the learned counsel for the petitioner insisted that the learned trial Court has not discussed PLD 1967 SC 97 (Mst, Khurshid Bibi v. Baboo Muhammad Amin) in her order, which in fact favours the respondent No.2. It is next argued that the petitioner's application for return of title documents of the property from the respondent No.2, moved in Family Suit No.395 of 2009 filed by the respondent No.2 for dissolution of marriage by way of Khula against the petitioner, is not maintainable as the said property was gifted to the respondent No.2 by the petitioner, consequent upon a compromise for disposal of that Suit bearing No.888 of 2001 filed by the respondent No.2 against the petitioner and it was not given to the respondent No.2 by the petitioner against the dower and the petitioner is not entitled to get back the gifted property from the respondent No.2 in lieu of Khula. It is next urged that as per the Law Amendment Ordinance, 2002, section 10(4) of the West Pakistan' Family Courts Act, 1964, the Family Court in a suit for dissolution of marriage if reconciliation fails shall pass a decree of Khula forthwith and shall also restore to the husband the Haq Mehar received by were in consideration of marriage at the time of Marriage and in the Schedule of the West Pakistan Family Courts Act, 1964 nothing has been mentioned with regard to claim of belongings of the husband.
6. We have Heard the learned counsel for the parties and perused the entire record placed before us.
7. Prima facie, it appears from the record that the marriage between the petitioner and the respondent No.2 was solemnized in the year 1983 against the dower amount of Rs.19,786 as prompt.
Thereafter for the first -time in the year 2001 the respondent No.2 filed a Suit bearing No.888 of 2001 against the petitioner, which was disposed of through compromise, the contents of compromise application reads as follows: --
(1) That the defendant will not beat or maltreat the Plaintiff in future and will not do any such act which injure or hurt the self-esteem of the Plaintiff
(2) That the defendant will give due respect to the relatives of the Plaintiff and he will not use foul language for the sisters and deceased mother of the Plaintiff
(3) That the defendant will not make any restriction on the visit of the relatives of Plaintiff and she will be at liberty to meet her relatives whenever she desired.
(4) That the defendant will not level false allegation against the character of Plaintiff and begs apology for all allegations made in the past, further he admits that Plaintiff is a respectable lady and bears good moral character.
6. That the defendant will pay Rs. 3,000 per month to the Plaintiff as her pocket money beside her maintenance and maintenance of her children. That in case of any dispute arise between the parties even then the defendant. Will be bound to pay Rs.5,000 as maintenance to the Plaintiff and the custody of children will remain with the Plaintiff and defendant will pay Rs.2,500 as maintenance to each child.
7. That the defendant will have no objection to the Plaintiff for continuing her teaching job.
8. That the defendant has gifted his House bearing No.R-1129, measuring 120 sq. Yards in Sector 15- A-4, situated at North Karachi Township, Karachi in the name of the Plaintiff out of natural love and affection and she A has accepted and taken the physical possession of the same.
9. That the Plaintiff has joined the defendant on the above mentioned terms and conditions.
(10 )That the defendant is sorry over his wrongful acts and apologies to the Plaintiff.
It is therefore, respectfully prayed that this Hon'ble Court may be pleased to dispose of the above suit in the above terms with no order as to cost.'
8. From perusal of the contents of compromise application filed on 8-2-2002 in Family Suit No.888 of 2001 by the petitioner, respondent No.2 and their counsel, it reveals that the petitioner had gifted the said property, (which is the subject-matter of the instant petition) in the year 2002 to the respondent No.2 out of love and affection through a Registered Declaration of Gift registered on 612-2001 before Sub-Registrar T-Division No.V, Karachi. The said property was not a part of the dowry articles given by the petitioner to the respondent No.2 at the time of their marriage.
9. After seven. Years of the disposal of the Family Suit No.888 of 2001, again the respondent No.2 tiled a Family Suit bearing No.395 of 2009 for dissolution of marriage by way of Khula against the petitioner wherein the petitioner moved an application (impugned herein) for return of title documents of the property from the respondent No.2, though the said suit is still pending adjudication before the learned trial Court.
10. In the cases of Khula filed by the females (wives) against their husbands, where the law protects their rights in section.. 10(4) of the West Pakistan Family Court Act, 1964, which reads as under:-- "10(4) If no compromise or reconciliation-is possible the Court shall frame the issues in the case and Fix a date, for (the recording of the 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 decree for dissolution of marriage forthwith and also restore the husband the Haq Mehar received by the were in consideration of marriage at the time 'of Marriage.
11. After perusal of the law referred to above, we are of the considered view that nowhere has been mentioned in respect of gift to be surrendered given by the husband to his were at the time of marriage except Haq Mehl which is required to be returned by were to his husband consequent upon grant of Khula. It is an admitted position from the record as well as from the compromise application filed by the petitioner in Suit No.888 of 2001 that the defendant (petitioner herein) on 6- 12-2001 had gifted his House bearing No.R-1129, measuring 120 sq. Yards in Sector 1.5-A-4, situated at North Karachi Township, Karachi in the name of the Plaintiff (respondent No.2) out of natural love and affection and she had accepted and taken the physical possession of the same.
12. Insofar as the case-law cited by the learned counsel for the petitioner before the learned trial Court, which according to him, were not discussed and considered, are concerned, we take up the same for a glance perusal vis-a-vis Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SO, 97), Mst. Sabia Naz and others v. Mir Rustam and others 1999 M LD 1763, Raja Muhammad Maqsood v.
Mst. Kausar Nisar 2000 YLR 956, Mst. Nabila Safdar v. Muneer Anwar 2000 YLR 1857 and two unreported judgment passed by this Court in C.P. No.D-1974 of 2008 and C.P. No.D-1911 of 2008:,
13. The case of Mst. Khurshid Bibi (supra) was remanded back by the honourable Supreme Court of Pakistan to the trial Court with a direction to allow the parties to lead evidence as to the benefits, if any, conferred by the respondent herein on the appellant, as a consideration of the marriage. This case law does not support the case of the petitioner pending before the learned trial Court in any manner whatsoever.
14. In the case of Mst. Sabia Naz and others v. Mir Rustam and others 1999 M LD 1763 it has been held that the khula would be granted to were subject to restoration of what she had received in consideration of marriage. Family Court would be justified to dissolve marriage by directing were to restore what she had received in consideration of marriage from her husband.
15. Even this case-law referred to above would not have supported the petitioner, which was relied upon by the learned counsel before the learned trial Court in support of his application for return of property documents, as in the said case khula was granted also subject to the restoration of what were had received in consideration of marriage, but not on return of the gifts etc which might be given by the husband to his were during their marital life.
16. In the case of Raja Muhammad Maqsood v. Mst. Kousar Nisar 2000 YLR 956, it has been held that it is an admitted principle of Islamic Jurisprudence that when a marriage is dissolved on basis of khula, the were is supposed to restore the dower money, the property and all other gifts, etc., which she had received from her husband at the time of marriage.
17. Even this case-law referred to above is not relevant in the case of the petitioner before the learned trial Court, as in that case, the Court had granted the khula to the respondent, but subject to the restoration of the dower money, property and all other gifts, etc., which she had received from her husband at the time of marriage as in the said judgment nothing has been mentioned in respect of gifts etc which might be given by the respondent from the appellant from time to time during his marital life.
18. In the case of Mst. Nabila Safdar v. Muneer Anwar 2000 YLR 1857, it has been held that dissolution of marriage on ground of Khula when were stated that she would prefer death than to live with her husband. In such case, Family Court would be justified in law in directing were to refund either the ornaments she had received from her husband or pay him Rs.40,000 as price of ornaments as she herself had sought dissolution of marriage.
19. If it is presumed that the case of Mst. Nabila Safdar (supra) cited by the learned counsel for the petitioner before the learned trial Court, to be relevant in the case of the petitioner, but nowhere has been. Mentioned in the said judgment that the ornaments or the price of the ornaments was given to the Plaintiff as gift by the defendant and it was ordered to be returned back the same to the husband for grant of Khula, the contents of which, reflects as under:-- "The plaintiff has denied in her suit that she received any amount out of dower money fixed at the time of her marriage with the respondent. Her witness Muhammad Saghir has admitted in his statement that out of dower amount, Rs.40,000 were paid in the shape of ornaments to the plaintiff-respondent. The same is the statement of his other witness Muhammad Ashraf Khan who like Muhammad Saghir has stated that in his examination in-chief that ornaments valuing Rs.10,000 were paid against dower amount. Even Plaintiff in his statement before the Trial Court has admitted that she was given ornaments valuing Rs.40 000. "
Even the case-law cited by the learned counsel for the petitioner before the learned trial Court would not have helped out him, as the impugned order passed by the learned trial Court on the application moved by the petitioner in. Family Suit. No.395 of 2009 for return of title documents of the property from the respondent No.2 which was gifted by the petitioner to the respondent No.2, is in fact an interocutory order though the said suit filed by the respondent No.2 for dissolution of marriage by way of Khula against the petitioner, is still pending adjudication and the case law referred to above is of a case for grant of Khula and the ornaments or the price of ornaments of Rs.40,000 were ordered to be returned back by the Plaintiff, as the said ornaments were given to the Plaintiff out of the dower amount by the defendant.
20. An unreported judgment passed by this Court in C.P. No.D-1974 of 2008, wherein it has been observed that:-- "We have carefully considered the submission of learned counsel, perused the material placed on record as well as the judgments cited at the bar, in none of which it has been held by this Court or the Apex Court that Family Court established under the West Pakistan Family Courts Act, 1964 lacks jurisdiction to adjudicate upon matrimonial disputes of the Muslims belonging to Shia Sect. Indeed, for the purpose of such proceedings presumption is that parties to the proceedings are Sunni, but in the cases where parties belong to Shia Sect their Personal Law is to be made applicable for resolving their disputes, which are amenable to the jurisdiction of the Family Court under section 5 of the Act, 1964 read with Schedule-I of the said Act."
In the said case, as admitted, the Personal Law is to be made applicable as the parties to the proceedings belong to the Shia Sect. Insofar as the order passed in C.P. No.D-1911 of 2008 is concerned, the said petition was disposed of while relying on the judgment passed in C.P. No. D- 1974 of 2008 by this Court.
21. After going through the lengthy discussion on the case-law cited by the learned counsel for the petitioner before the learned trial Court and perusal of the material available on record, we are of the considered view that the learned trial Court has rightly dismissed the application of the petitioner for return of property documents filed in Suit No.395 of 2009, as the said suit has been filed by the respondent No.2 against the petitioner for dissolution of marriage by way of Khula and the case law cited by the learned counsel for the petitioner before the learned trial Court do support the petitioner since in all the case law nowhere has been discussed about the gifts to be returned to the husband given by him to were and all are in respect of the case of granting of khula or otherwise.
22. In view of the above great discussion, we are of the opinion that this petition does not have merit and we dismiss it accordingly.
23. The Prayer "A" made by the petitioner in C. P. No. D-1407 of 2009 cannot be allowed and/or discussed in exercise of the extraordinary constitutional jurisdiction, as this is not a proper forum to agitate the same at this platform. In respect of the Prayer "B" the grievance of the petitioner is that if the Shia Muslim was given the benefit of their Personal Law, the case of the petitioner should be taken by adopting Persona Law as has been taken by this Court in C.P. No. D-1974 of 2008 and C.P.
No. D-1911 of 2008. Neither the petitioner nor his learned counsel has placed any Personal Law which has to be applicable to the Sunni Touheedi School of thought, since the petitioner belongs to Sunni Sect. Accordingly, C.P. No. D-1407 of 2009 is also dismissed having no merits.
24. Now, we take up Civil Transfer Application No.36 of 2009 filed by the applicant for transfer of Family Suit No.395 of 2009 from the respondent No.1 to the learned with Civil and Family Judge, Karachi Central where Family Suit No.888 of 2001 between the applicant and the respondent No.2 was compromised on 8-2-2002.
25. After perusal of the contents of the memo. Of Civil Transfer Application No.36 of 2009, we are of the view that there are no valid and cogent grounds taken by the applicant for the transfer of Family Suit No.395 of 2009 from the learned trial Court since this is no ground for the transfer of the main suit that the learned Presiding Officer did not take into consideration the case law cited by the applicant while deciding the application of the applicant for return of property document from the respondent No.2 and other grounds are based on surmises and conjectures of the applicant against the leaned Presiding Officer, which have no justification to consider by this court. Therefore this Civil Transfer Application No.36 of 2009 is hereby dismissed.
26: The learned Presiding Officer may pass any order in Suit No.395 of 2009 without being influenced by the order passed in these all three matters i.e. C.P. No.D-165 of 2001, C.P.C. No.D-1407 of 2009 and Civil Transfer Application No.36 of 2009 by this Court.