' In two consolidated suits, one for dissolution of marriage by Mst. Surta respondent herein against the petitioner, her husband and the other by petitioner, her husband, against her for restitution of conjugal rights, as many as six issues were framed. However, Issue No, 5 which reads:- `Is the plaintiff entitled to have Talaq' on the basis of slchula" and if so on what conditions was found in favour of respondent, Surta Bi, by all the subordinate Courts and finally by the High Court.
The High Court's judgment was passed on 22-5-1980. All the Courts ordered the separation of the spouses on payment of Rs, 10,000, to be made by Mst. Surta Bi to her husband, the petitioner.
2. The petitioner now seeks leave to appeal to impeach the finding of the Courts below on the grounds:-
(i) that no case for `Talaq' by khuhi` is established as benefits received by the wife had not so far been returned :4.3 her husband. To elaborate his argument, it was pointed out by Ch. Muhammad Sharif Tariq, the learned counsel for the petitioner, that the respondent, Surta Bi, admits that she was given 18 tolas sold ornaments, in addition to Rs, 5000, cash at the time of her marriage and these benefits have not been returned to the husband. So Talaql, according to him, by khula` is not permissible; and
(ii) that without the consent of husband decree of Tilaq' by khida` cannot validly by recorded.
3. It is true that receipt of the ornaments and cash to the time of marriage is admitted by Mst. Surta Bi but at the same time he statement shows that the ornaments were left at the house of her husband at the time she left his house for her parents. This part of her statement, as rightly held by the learned Judge in the High Court, remains unchallenged and un-rebutted and naturally is to be believed.
4. Apart from it there is nothing in the evidence to flow that the ornaments and the cash was paid to the respondent in consideration the marriage. It is now settled principle of law that all those benefits which have been departed by the husband in consideration of the marriage are to be returned. The argument therefore, that all the benefits received by the lady has not been returned, is not available to the husband.
5. Let us determine the issue from still another angle. The petitioner, in para. 8 of written statement, as observed by the High Court, demands only Rs, 10,000, for divorce on the basis of khuld. No doubt divorce operates on the return of, as stated earlier, gifts and benefits received by the wife in consideration of the marriage but the husband is at liberty to forego as the benefits or .Any part of it as observed in Abdul Majid v. Razia Bibi and another (1) It has been held in that case:- "One of the conditions for grant of khula` enjoined by Law of Islam and as held by the superior Courts of Pakistan is that if the wife has obtained any tangible returnable benefits from the husband, she should be made to return the same as a condition precedent on grant of khula` in case the husband does not forego the same but asks for their return. If a husband during a trial does not make any claim with regard to the return of benefits despite the knowledge that the 'Courts have ruled that he can claim the return, this conduct would show that he has not conferred any benefits or he would not seek the retain thereof."
6. In the case before me the respondent only demanded Rs, 10,000, for separation on the basis of khula, and never insisted for the return of ornaments etc. The decree is passed in terms of the demand made in para. 8 of the plaint and the petitioner is now estopped to turn round and made a demand in addition to the demand made in the plaint.
7. Mr, Muhammad Sharif Tariq, the learned counsel for the petitioner, however, vehemently argued that the learned Judge in the High Court as well as subordinate Courts fell in error to hold that the petitioner had only demanded Rs, 10,000, ea. Consideration for the separation on the basis of khula.
According to him, the demand of the petitioner was for Rs, 15,000, and not for Rs, 10,000, as said by the subordinate Courts. To strengthen his argument he has taken me through the plaint. Para. 8 of the plaint enters in clear words that the petitioner demands My Rs, 10,000, as consideration for separation on Inc. Basis of Had. In the last para. Of the plaint, no doubt, it is stated that an amount of Rs, 15,000, is the bar on the marriage but it is nowhere said in this para. That this amount is demanded as consideration for khula . Therefore, the argument is without substance and the judgments of the Courts below, on the issue, which are based on critical examination of the facts need no interference.
8. So for the question of the consent of the husband for separation on the basis of khula, is concerned, it has been squarely met in Bakis Fatima v. Najam-ul-Ikram (2), and I have no reasons to have a different view. In that car it. After discussing different authorities on the controversy, it was observed:- "Beal (by the Full Bench) that the wife is entitled to a dissolution of 7.Narriage on restoration of what she received in consideration of marriage if the Judge apprehends that parties will not observe the limits of God.
' I' his is not equivalent to granting a right to wife to come to the Court at any time and obtain a khula if she is prepared to restore the benefits a he has received. There is an important limitation, on her right. It is only if the Judge apprehends that the limits of God not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that he will grant a dissolution. {{FOOT NOTE}} PLD 1975 Lab. 766 (2) PLD 1959 Lah. 566 {{FOOT NOTE}} ' The wife cannot have a divorce for every passing impulse. The Judge will consider whether the rift between the parties is a serious one though he may not consider the reasons for the rift.
' That the wife may go wrong if dissolution is not ordered is rather a reason for grant of dissolution for Islam prefers divorce to adultery.
' The husband can effect a dissolution himself by pronouncing a divorce, while the wife has to approach the Court and she is to get a dissolution only if the Court regards further continuance of the marriage as not proper. But if it does regard continuance of marriage as improper, there is not further limitation on its jurisdiction to dissolve the marriage.
' The verse of the Holy Qur'an which is the basis of the right of khula' is verse No, 229 of Sura Baqr.
This verse permits the termination of a marriage by the wife passing consideration to the husband.
The question for consideration is whether this termination can be effected only by agreement between the husband and the wife or whether the wife can claim such termination even if the husband be not agreeable, ' The words 'if you fear' being addressed to the state or the Judge, they can only mean that the Judge is entitled to pass an order even though the husband does not agree.
' Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received. The jurisdiction of the Qazi to dissolve a marriage in cases of shiqaq is limited only by what is stated in the Qur'an, i. e. 'if you fear a breach' which means that there is real discord between the parties, and in the case of khula` by the words 'if you fear that they will not observe the limits of God', while effecting separation, the Qazi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife.
' As regards procedure to be followed in enforcing wife's right of khula' the law provides that in matters of marriage and divorce Muslim Law shall apply to the Muslims. If the Muslim Law provides a particular procedure for the enforcement of a right of dissolution either we regard that as a substantive provision and apply it as such or we regard that as a mere matter of procedure and having regard only to the substance of the right enforce it by whatever procedure is available. But the right of the wife cannot be defeated Either we should appoint Hakams or we should ourselves assumes the jurisdiction of the Hakam in so far as it relates to dissolution for that is a judicial function.
' The word `.1-1akam' is to he regarded in its ordinary sense of Judge or arbiter. One who is only a conciliator is neither a Judge nor an arbiter. Their Lordships were unable to accept the view that the ' jurisdiction of the Qazi is exhausted by the appointment of the arbiter, that if the effort at reconciliation fails, there is nothing further to be done and that the wife must be forced to live with the husband even though she be unhappy and may be in no way to blame and though the result would be that the spouses `do not observe the limits of God'.
9. The Courts below, after discussing the evidence in details, found-
(i) that the relations between the parties were extremely strained an there was no hope of reconciliation; and (ii)that the parties, in the circumstances of the case may not live in the limits ordained by God and the separation had become must.
' This finding of fact cannot be vitiated unless it is not shown that suffers from misreading or non- reading of evidence or is based on surmise and conjectures. The view taken by the High Court regarding the scow of the appeal is quite correct.
10. A fallacy in appraising the evidence (which is not the case before me) of a fact unless it amounts to a mistaken assumption is merely an error in coming to a finding as to a fact and such an error has never been held an error of law justifying interference in second appeal before the High Court.
' For the view I have taken in the matter, no good ground is made out for acceptance of this petition for leave to appeal. The petition, therefore, stands dismissed. No order as to costs.