' ASAD MUNIR, J.---The relevant facts as emerge from the record are that the marriage between the petitioner, Mst. Sadia Sultan and respondent No,3, Major Nadeem Khan, was contracted on 28-2- 2003 in consideration of the haq mahr of Rs,100,000. However, the marriage ran into trouble after respondent No,3 got married to Mst. Shagufta Ghazi on 23-7-2004 without obtaining any permission from the petitioner or the concerned Arbitration Council. In order to reassure the petitioner respondent No,3 executed iqrarnama dated 26-8-2004 whereby he enhanced the dower amount from Rs,100,000 to Rs,2,000,000 and also agreed to divorce his second wife. The amount of dower was further enhanced to Rs,2,500,000 vide another iqrarnama dated 10-9-2005, executed by respondent No,3, wherein also an assurance was given by respondent No,3 that he would divorce his second wife. However, respondent No,3 did not divorce his second wife with the result that the relations between the two became so strained that since May, 2005 the couple stopped living together. On 17-2-2007, the petitioner filed a suit for recovery of dower of Rs,2,500,000 which was allowed vide Judge Family Court, Hafizabad's judgment and decree dated 31-10-2007, affirmed by Additional District Judge, Hafizabad's judgment and decree dated 26-3-2008. The said judgments/decrees were assailed by respondent No, 3 through Writ Petition No, 5366 of 2008 which has been dismissed by this Court's judgment of even date.
2. The instant writ petition arises out of the petitioner's suit for dissolution of her marriage with respondent No,3, wherein the petitioner alleged that respondent No,3 was cruel to her and used to subject her to physical and mental torture, had deserted her since May 2005 and had also contracted a second marriage secretly without the permission of the petitioner or the Arbitration Council. It was also averred in the plaint that the petitioner had developed an aversion towards respondent No,1 wherefor she was entitled to a decree for dissolution of marriage. Record shows that on 17-11-2008, when the case was fixed before the Judge Family Court, Hafizabad, for reconciliation between the spouses, the petitioner made a statement to the effect that she had intense hatred towards respondent No,3, could not live with him and wanted divorce by way of Khula'. Thereafter, vide order dated 17-11-2008, the Judge Family Court decreed the suit of the petitioner under the proviso to section 10(4) of the West Pakistan Family Courts Act, 1964, subject to the return of consideration, if any, received by the petitioner from respondent No,3. Against the order dated 17-11-2008, the petitioner filed an appeal wherein it was pleaded by the petitioner that she had never sought dissolution of marriage on the ground of Khula' but had sought it on other grounds and that the statement attributed to her was written not before but after she had affixed her signatures on the order sheet. However, the aforesaid pleas were not accepted by the learned Additional District Judge, .Hafizabad, who dismissed the petitioner's appeal vide his judgment and decree dated 30-1-2009.
3. The legality of the judgments/decrees of the learned courts below have been assailed by the petitioner whose learned counsel has referred to the petitioner's plaint to contend that she sought the dissolution of marriage on three separate grounds only i,e, respondent No,3's ctuelty, his second marriage without the permission of the Arbitration Council and his failure to perform his marital obligations since May, 2005. It is further contended that the petitioner never agreed to restore or relinquish the dower but the marriage has been dissolved subject to the return of dower.
It is also contended by the learned counsel that when a number of grounds including Khula' have been urged by a wife for the dissolution of her marriage, the Family Court cannot dissolve the marriage on the ground of Khula' unless the other grounds have also been addressed and adjudicated upon otherwise the result is injustice as in every case of dissolution of marriage the wife must lose her haqmahr either by restoring it or by foregoing it. On the other hand, the learned counsel for the respondent has referred to the proviso of section 10(4) of the Act to contend that dissolution of marriage on the ground of Khula' has to be made subject to the condition of return of dower if it has been paid or its relinquishment if it is yet to be paid.
4. I have heard the learned counsel for the parties who have advanced arguments for and against the legality of the impugned judgments whereby the marriage has been dissolved on the ground of Khula' subject to the restoration of dower.
5. A wife can seek dissolution of her marriage on any one or more of the grounds mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939. These grounds include husband's cruelty, his desertion of the wife for three years, his taking an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961 and any other ground including Khula' recognized under the Islamic Law. A wife would lose her dower only if she seeks dissolution of marriage on the sole ground of Khula' but not when she urges other grounds in support of her case unless the other grounds are not proved. Her entitlement to receive dower or its retention would remain unaffected and intact if she is able to prove other grounds like cruelty of the husband. This view is fortified by Habib-ur-Rehman v. Additional District Judge, Lahore and others (1984 SCM R 1430), where a wife sought dissolution of her marriage on the ground of cruelty of the husband as well as on account of the hatred she had developed towards him. Another suit for recovery of dower was also filed by her against the husband. Both the suits were decreed in favour of the wife whereupon the husband filed a writ petition which was also dismissed. The matter went up to the honourable Supreme Court where it was argued that the marriage having been dissolved on the ground of Khula', the wife was not entitled to receive any dower in view of the rule laid down in Khurshid Bibi v. Muhammad Amin (PLD 1967 Supreme Court 97). Rejecting the argument, the Honourable Supreme Court observed as under:-- "But the ruling in the cited case cannot be invoked in the present case because here the decree of dissolution had been passed also on the ground of cruelty, in which case the wife is not deprived of her right to the dower amount. If the petitioner could not resist the wife's suit for recovery of the dower amount, had the decree of dissolution been passed only on the ground of cruelty, it is hardly logical that he could resist it merely because the wife had also succeeded on another ground, that is, of Khula'. No case-law has been cited to support that where the dissolution is granted on grounds including Khula', the wife becomes disentitled to recover the dower money".
6. The aforesaid view was followed in Mukhtar Ahmad v. Ansa Naheed and 2 others (PLD 2002 Supreme Court 273), wherein the Hon'ble Supreme Court observed as under:-- "It is an admitted fact that her marriage with the appellant was dissolved on various grounds, including Khula'. Once the marriage is dissolved on other grounds also the wife would be entitled to recover the amount of dower and dowry. If the marriage is dissolved solely on the ground of Khula' the situation would be different and it would be examined keeping in view the offer she made for getting marriage dissolved on Khula'. A woman married under Muslim Law is entitled to obtain a decree for the dissolution of her marriage on anyone or more of the grounds available under the law. Each ground is separate and enough for dissolution. If marriage is dissolved on other grounds also it means that the result would have been the same irrespective of the fact that the plea of Khula' was raised or not. Legal rights cannot be curtailed by implication."
7. Undoubtedly, the petitioner has not sought the dissolution of her marriage on the sole ground of having developed aversion towards respondent No,3 but has also alleged respondent No, 3's second marriage without permission of the Arbitration Council, his failure to perform his marital obligations and his cruel treatment of the petitioner, which, if proved, are recognized as valid and separate grounds for the dissolution of marriage under clauses (ii-A), (v) and (viii) of section 2 of the Dissolution of Muslim Marriages Act,1939. None of these grounds have been adjudicated upon by the learned Family Judge who, on failure of pre-trial reconciliation between the spouses, has vide order dated 17-11-2008 purportedly acted under the proviso to section 10(4) of the Family Courts Act, 1964, to dissolve the marriage subject to the restoration of dower to the husband.
However, while passing the aforesaid order, the learned Family Judge was obviously oblivious of the proviso to section 9(lb) of the Family Courts Act, 1964, which limits the scope of the proviso to section 10(4) of the Act in the following manner:-- "Provided that the proviso to subsection (4) of section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of Khula' ."
8. In view of the proviso to section 9(1b) of the Family Courts Act, 1964, it follows that the proviso to section 10(4) can be enforced or acted upon only when Khula' is the only ground taken for the dissolution of marriage. However, if grounds in addition to Khula' have been taken, an order under the proviso to section 10(4) of the Act cannot be passed to deny the wife the benefit of haqmahr by its return or by its relinquishment. In such a case, the other grounds including second marriage without permission of the Arbitration Council, desertion of the wife by the husband and his cruelty cannot be brushed aside but need to be adjudicated upon by the Family Court in the light of the evidence produced by the parties in order to determine the wife's entitlement as to Haq Mahr. A somewhat similar situation arose in Mst. Saima Irum and 3 others v. Tariq Javed and another (2006 M LD 83 (Peshawar) wherein a Full Bench of the honourable Peshawar High Court observed as under:- "Therefore, in our view, the word "Khul' should be construed as subject to the presumption that the legislature does not intend, by its general language to subvert the established principles of Shariah on the subject and has left it for the Family Courts to decide whether to dissolve the marriage between the spouses on the ground of Khula' or not. If from the plaint submitted by the wife, the only prayer of the wife is to dissolve her marriage on the ground of Khula', then the Family Court under added provisos to sections 9 and 10 of the Family Courts Act, 1964. Could dissolve the marriage between them on the ground of Khula' and could also order for the restoration of the haqmehr received by the wife in consideration of marriage but if the claim of the wife is based on other grounds also, such as cruelty etc., then the Family Courts shall proceed with the case in accordance with law to determine by recording of evidence that the fault lies in which of the parties and which of the parties are entitled to it."
9. For the reasons stated hereinabove, the learned Family Judge Hafizabad's order dated 17-11- 2008 and the learned Additional District Judge, Hafizabad's judgment/decree dated 30-1-2009 are set aside and the case is remanded to the learned Judge Family Court, who shall frame issues, if not already framed and decide the petitioner's suit for the dissolution of marriage in the light of the evidence produced by the parties.