' IJAZ AHMAD, J.---Learned counsel for the petitioner impugns the decree dated 17-12-2011, passed by the learned Additional District Judge, Malakwal.
2. Respondent No.3 instituted a suit for payment of dower, return of gold ornaments and maintenance allowance, on 22-9-2010. The suit was contested by the petitioner. The parties led evidence. The suit to the extent of maintenance allowance and gold ornaments was dismissed, however, to the extent of payment of dower was decreed for an amount of Rs.50.000 by the learned Judge Family Court, Malakwal, vide decree dated 1-2-2011. The petitioner preferred an appeal. It was dismissed vide the judgment and decree dated 17-12-2011, passed by the learned Additional District Judge, Malakwal. a. On 7-2-2011, respondent No.3 instituted a suit for dissolution of marriage. On 30-3-2011 i.e. The first date of hearing, the statements of the petitioner and that of respondent No.3 were recorded. The petitioner in his statement admitted that the right to pronounce the divorce had been delegated to respondent No.3 in column No.18 of Nikahnama Exh.P-1. Respondent No.3, however, in her statement did not desire to exercise the right of dissolution of marriage delegated to her and stated that she had developed extreme hatred against the petitioner, therefore, her suit for dissolution of marriage be decreed, on the basis of Khula. The learned Judge Family Court, in view of the statements made by the parties and on account, of the failure of pre-trial reconciliation proceedings, decreed the suit for dissolution of marriage on the sole ground of Khula vide decree dated 30-3-2011. The respondent/plaintiff was directed to return Rs.1,000 received by her, as prompt dower, at the time of her marriage.
4. Learned counsel for the petitioner contends that at the time of arguments before the learned appellate Court in the earlier instituted suit for payment of dower, the petitioner had apprised the appellate Court that in view of the decree dated 30-3-2011 for dissolution of marriage having been passed on the basis of 'Khula' in favour of respondent No.3 (in the 2nd suit) respondent No.3 was not entitled to the decree for payment of Rs.50,000 as "Ghair Moajjal" dower, as the same also to be returned to the petitioner. He relies on 2009 SCMR 1458 titled Saadia Usman and another v.
Muhammad. Usman Iqbal Jadoon and another to argue that there is no distinction between the prompt or deferred dower. He refers 2006 CLC 1662 titled Babar Ismail v. Mst. Sheeba Bashir and anotheL and PLD 2006 Lahore 158 titled Mst. Shaista v. Sh. Liaquat Ali Sathi and 2 others and argues that if the prompt dower already received is to be returned, there is no justification in allowing the wife to receive the deferred dower if a decree for dissolution of marriage has been passed in her favour on the basis of Khula.
5. Dr. Muhammad Mohey-ud-Din Qazi, the learned Advocate/Amicus Curiae, contends that in the first suit, the appeal was pending which is the continuation of the lis. The appellate Court seized with the appeal while deciding the entitlement of respondent No.3 to receive Rs.50,000 payable, as the amount of deferred dower should have taken care of the decree for dissolution of marriage dated 30-3-2011, passed on the basis of Khula and should have accepted the appeal preferred by the petitioner and dismissed the claim of respondent No.3 for payment of the deferred dower. He argues that respondent No.3 has not exercised her delegated power to pronounce divorce as is evident from head note of the plaint. Paragraph No.5(vi) and the prayer made in the suit for dissolution of marriage indicate that respondent No.3 has sought the decree for dissolution of marriage on the basis of Khula and not on the basis of the right of divorce having been delegated to her by the petitioner. He further refers to Nikahnama Exh.P-1 and paragraph No.3 of the plaint in the suit for the payment of dower to argue that the dower payable is bifurcated into "Moajjal"
Rs.1,000 and "chair Moajjal" Rs.50,000; that the decree dated 30-3-2011 in the suit for dissolution of marriage, passed on the basis of Khula has been accepted by both the parties and has not been challenged in appeal. Respondent No.3 accepting the decree has returned Rs.1,000 received by her as prompt dower. She is under a legal obligation to relinquish and not to receive Rs.50,000 and if she has already received it to return the same to the petitioner.
6. The learned counsel appearing on behalf of respondent No.3 supports the decree and contends that it is not a mandate of law that the whole amount of dower should be returned by the wife to the husband as a consideration for dissolution of marriage passed in her favour on the basis of Khula. She can be made to return part of it only.
' Relies PLD 2011 Karachi 196 Abdul Aleem Khan v. Tabinda Naseer Qazi and another to argue that if the decree for dissolution of marriage is conditioned with the restoration of benefits, it will be tantamount to deprive a destitute wife of her right to get rid of an abhorrent husband simply because of her incapacity to return the benefits. He also relies on 2011 CLC 566 (Lahore) titled Wahid-ul-Islam v. Shaheen Akhtar and 2 others to argue that in order to entitle a husband to the return of the dower, already paid, he must in his written statement make a specific claim for return of the dower in lieu of a decree for dissolution of marriage passed in,favour of the wife on the basis of Khula.
7. I have heard the learned' counsel for the petitioner, the learned Advocate! Amicus Curiae, the learned counsel for respondent No.3 and also gone through the impugned decrees.
8. The proviso to subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964, makes it imperative for the Family Courts to pass a decree for dissolution of marriage forthwith in consequence of failure of the pre-trial reconciliation proceedings and further to restore to the husband Haq-ul-Mehr received by the wife in consideration of marriage, at the time of marriage. It reads as under:-- `[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 shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage".
' Bare reading of the Proviso manifestly lays down restoration of the Haq-ul-Mehr, received by the wife in consideration of marriage, at the time of marriage. The language is quite plane and unambiguous. It only talks of the restoration of Haq-ul-Mehr already received and its restoration withholding or relinquishment of deferred dower cannot be added to this Proviso which the Legislature never intended. Had that been intention of the Legislature, after the word received, the words, or agreed to be received" should have followed. In the judgment cited as 2009 SCMR 1458 though it has been remarked that the Holy Quran is silent on two types of dowers yet the ratio decidendi is that the prompt dower is payable on demand during the subsistence of marriage whereas the deferred dower is payable on the time agreed between the parties and where no time was stipulated, it ' will be payable at the time of dissolution of marriage either by death or divorce.
In the judgment cited as 2006 CLC 1662 titled Babar Ismail v. Mst. Sheeba Bashir and another and PLD 2006 Lahore 158 titled' Mst. Shaista v. Sh. Liaquat AR Sathi and 2 others, it has been held that the dower amount if already paid to the wife was to be restored and if not so unpaid, it was not to be paid to the wife.
9. In the instant case, in her plaint in the suit for dissolution of marriage, respondent No.3 has so many times averred that she was subjected to cruelty, allegations on her character were levelled, financial constrictions were imposed, the petitioner had developed extra matrimonial relations, therefore, she had developed abhorrence against the petitioner. With due deference to the judgments referred by learned counsel for the petitioner, I am inclined to agree to the judgments referred to by learned counsel for respondent No.3 and two other judgments that conform more to the Proviso to subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964. It has been held in PLD 2009 Lahore 484 titled Muhammad Kaleem Asif v. Additional District Judge that wife in lieu of dissolution of marriage on the basis of Khula is not liable to restore dower or other benefits received by her, if she claims the dissolution of marriage on account of husband's fault. As the right of Khula has accrued to a wife for redressal of her grievance against her husband, the return of whole amount of dower becomes unnecessary and returnable amount may be reduced, in a case when the dissolution of marriage on the basis of Khula is claimed also due to fault or wrong on the part of the husband. PLD 2007 Lahore 626 titled Khalid Mehmood v. Anees Bibi and 2 others is relied upon, There is a logic in not conditioning the relinquishment of the deferred dower in lieu of the decree for dissolution of marriage, passed on the basis of Khula. The wife has already been deprived of the use of the deferred dower which though was agreed to be paid yet has been withheld and kept away from her. She was not to be deprived twice by asking the wife to relinquish and not to receive the dower that she has, been longing for since her marriage.
' For the foregoing reasons, I do not uphold the decrees passed by the learned courts below. This petition has no force. It is dismissed.