' ASAD MUNIR, J.---The petitioner, Shamas Ali, already married twice, contracted another marriage with respondent No,2, Rubina Anjum, on 10-8-2006. The marriage was evidenced by nikah nama dated 10-8-2006 column 13 whereof mentioned the haq,mehr as 5 tolas of gold ornaments and Rs,1000/-. On 18-10-2010, respondent No.2 filed against the petitioner a suit for the dissolution of marriage by way of khula on the grounds that the marriage had irretrievably broken down with no prospects of reconciliation between the parties and that respondent No,2 had developed deep hatred for the petitioner who was not only involved in personal scandals but also had a criminal record. In response, the petitioner filed his written statement wherein he took the plea that divorce on the basis of khula, if allowed, should be allowed only if respondent No.2 returned the gold ornaments of five tolas which were handed over to her at the time of marriage. In view of the divergent pleadings of the parties, the following issues were framed:- "ISSUES:
(i) Whether the plaintiff is entitled to a decree for dissolution of marriage inter alia on the ground of Khula also? OPP.
(ii) If issue No,1 is answered in positive then what are the benefits to which defendant is entitled to recover back from the plaintiff? OPD.
(iii) Whether the suit of the plaintiff is false and fictitious one and same is liable to be dismissed?
OPD.
2. After recording the evidence, the learned Judge Family Court, Sambrial, vide judgment and decree dated 1-3-2011 decreed the suit for dissolution of marriage on the basis of khula subject to the return of five tolas of gold ornaments received by respondent No,1 as dower or the market value of the same, along with Rs,1000/-. The aforesaid judgment and decree was challenged by respondent No,1 in appeal which has been allowed vide the learned Additional District Judge Sambrial's judgment and decree dated 25-5-2011 to the extent that the condition of return of dower comprising five tolas of gold ornaments and Rs,1000/- has been dispensed with. Through this petition, the legality of the learned Additional District Judge Sambrial's judgment and decree dated 25-5-2011 has been called into question.
3. It is contended by the learned counsel for the petitioner that respondent No.2 sought the dissolution of marriage on the ground of khula only and no other ground having been urged by her in the plaint, the haq mehr whose delivery was proved was liable to be returned. In response, the learned counsel for respondent No.2 has contended that the delivery of the gold ornaments in question was never proved as the nikah khawan, appearing as CW.1, stated that no delivery of gold ornaments took place in his presence. Relying upon Mst. Balqis Fatima v. Najm-ulIkrarn Qureshi (PLD 1939 Lah. 566 (F.B.), Qammar Alam Sheikh v. Mst. Robina and others (1997 CLC 985), Mst.
Zahida Bibi v. Muhammad Maqsood (1987 CLC 57) and Muhammad Kaleem Asif v. Additional District Judge (PLD 2009 Lahore 484), it is also pleaded that the petitioner is not entitled to the return of the dower as it is his conduct which compelled respondent No.2 to seek dissolution of the marriage.
4. In the light of the arguments advanced by the learned counsel for the parties, the issue that needs to be addressed first is whether the gold ornaments, weighing 5 tolas, were delivered by the petitioner to respondent No.1 at the time of their marriage. The delivery of the gold ornaments, asserted by the petitioner, is being denied by respondent No.2. Both the learned courts below have given concurrent findings that the gold ornaments were received by respondent No.2. While doing so, the learned Courts below have placed reliance on Mehmood Ahmed's statement recorded on oath to the effect that that gold ornaments, weighing 5 tolas, had been given by the petitioner to respondent No.2 at the time of marriage. The said statement was made on 1-3-2011 after both the petitioner and respondent No.2 had on 28-2-2011 agreed that any statement given on oath by Mehmood Ahmed with reference to the delivery of the gold ornaments would be binding on them.
In this perspective, the said findings appear to be unexceptionable even though the nikah khawan did not witness the delivery of the gold ornaments to the bride.
5. As regards the return of dower, the learned Judge Family Court while dissolving the marriage on the ground of khula has ordered the return of dower comprising 5 tolas of gold ornaments along with Rs,1000. However, the learned Additional District Judge has held that respondent No,2 is entitled to the dissolution of marriage on the ground of khula but without the return of dower received by her as the evidence discloses that the petitioner has been at fault and it is because of him that the marriage broke down and was finally dissolved.
6. The proposition as to whether a wife can be granted khula without restoration of dower to the husband was discussed in Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi (PLD 1959 Lah. 566 (F.B.), by B.Z. Kaikaus J, who observed that:-- "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."
7. In Mst. Zahida Bibi v. Muhammad Maqsood (1987 CLC 57), the marriage was dissolved on the ground of khula subject to return of Rs,15,000/- being the value of the gold ornaments given as haq mehr at the time of marriage. The said amount was reduced to Rs,10,000/- in appeal but in second appeal the High Court found that the husband had married a second wife and had not only defaulted to give equal treatment to the aggrieved wife but had also failed to maintain her.
Following the observations made in Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi, it was held that the entire amount of dower was not liable to be returned and the return of Rs,4000/- as consideration for availing khula was adequate to meet the ends of justice. Again in Qammar Alam Sheikh v. Mst. Robina and others (1997 CLC 985), it was observed by the Sindh High Court that where fault was found on the part of husband, the Court could reduce the amount of compensation and could even grant decree of khula without any compensation at all.
8. It would also be of great benefit to refer to Muhammad Kaleem Asif v. Additional District Judge (PLD 2009 Lahore 484), a case where a marriage was dissolved on the ground of khula in the backdrop of the wife's assertion that her husband was cruel to her, did not pay her any maintenance and/or dower. While explaining that the need to seek khula can arise in two situations, it was observed by the learned Judge as under:-- "First, the wife may be aggrieved of the unbecoming attitude of her husband and, secondly, she may, for her own personal reasons such as abhorrence of disliking of her husband, may claim "Khula". In the history of Muslim Jurisprudence, the well reputed case of Habiba Bint-e-Sohail, seeking "Khula" against her husband namely, Sabit (may Allah be pleased with him), provides as guidance that in the case, where the disliking or hatred to the wife is not because of coercion, duress, or other untoward behaviour of the husband, the wife may seek separation by the restoration of the dower/the benefits drawn by her from her husband, at the time of marriage, but the in-depth analysis of the circumstances leads to infer that the case where the wife is constrained to seek divorce because of the obnoxious nature or behaviour of the husband, her position and rights are decipherable from the case of Habiba Bint-e-Sohail and she is not under a compulsion to compensate her husband in terms of the restoration of the benefits."
9. From the afore-quoted case-law, the rule that emerges is that in a case of dissolution of marriage on the ground of khula, the question of return of haq mehr received has to be adjudged in the light of conduct of the husband which means that where the evidence indicates that the dissolution of marriage is caused by or is attributable to the faulty conduct, of the husband, then the husband would become disentitled to the return of the dower otherwise due. This rule appears to be based on a sound rationale as it would be unjust to deny dower to a wife who has been forced into seeking dissolution on account of the reprehensible acts or omissions of her husband.
10. A perusal of the plaint shows that respondent No.2 sought dissolution of the marriage as she had developed deep hatred for the petitioner. The cause of respondent No.2's deep hatred towards the petitioner can be found in her affidavit in examination-in-chief, wherein she stated that the petitioner had been cruel to her as he used to subject her to physical beating frequently.
Respondent No,2 reiterated her statement in cross-examination during which it could not be shaken. It appears that respondent No,2, being a virgin less than 20 years old, was lured into the marriage by the petitioner even though admittedly he had contracted two marriages earlier. In his cross- examination, the petitioner also admitted that respondent No,2 had developed aversion to him but offered no explanation for such aversion. As such, the impression cannot be dispelled that it is the cruel conduct of the petitioner that compelled respondent No,2 to seek the dissolution of her marriage with the petitioner. At the same time, the couple lived together as husband and wife for a number of years which must be regarded as a benefit received by the petitioner also disentitling him to seek return of the entire dower. In this perspective, respondent No.2 is not liable to return the dower to the petitioner except part of the dower i,e, Rs,1000/- which she voluntarily offered to return to the petitioner in consideration of the dissolution of the marriage on the ground of khula.
11. As a result of the foregoing discussion, the impugned judgment/decree dated 25-5-2011, passed by the learned Additional District Judge, Sambrial, is maintained with the modification that respondent No.2 is liable to return Rs,1000/- to the petitioner. The petition is disposed in the above terms without any order as to costs.