KHALID MEHMOQD, J.-- Mst. Rabia Rashid petitioner (in Writ Petition No. 172 of ,2010) instituted a suit for dissolution of marriage, recovery of dower amount along with 5 tolas gold ornaments and portion of house, maintenance allowance @ Rs.5000/- per month till decision of suit and dowry articles against Faisal Mir respondent. Respondent appeared and contested the suit by filing written statement and learned trial Court after recording pro and contra evidence and hearing the parties passed a decree for recovery of dower amount of Rs.2,00,000/-, dowry articles as per list or in alternate its market value and future maintenance @ Rs.5000/- per month and rest of the suit of petitioner was dismissed whereas a decree for restitution of conjugal rights was passed in favour of respondent. Feeling aggrieved, both the parties preferred appeals and learned appellate Court after hearing the parties vide impugned consolidated judgment dismissed appeal of respondents and set aside the decree for restitution ot conjugal rights and partially accepted the appeal of petitioner by dissolving the marriage on the basis of khula and she was also held entitled for Iddat period. Both the parties still feeling dissatisfied have filed Writ Petitions Nos. 172 of 2010 and 57 of 2011. Since both the appeals have arisen out of impugned judgments and decrees, therefore, these are proposed to be disposed of by this single judgment.
2. Learned counsel for petitioner (Mst. Rabia Rashid) argued that it has been proved on record that dower has not yet been paid by the respondent and both the courts were legally and morally bound to decree the same and so is the case of maintenance. It was argued that the petitioner was cruelly treated by respondent No.l, which fact has been proved on record, but the appellate Court has wrongly and illegally, dissolved the marriage on the basis of khula. It was argued that judgments and decrees of both the Courts below to the extent mentioned above are against law, facts and evidence on record rather these are based on assumptions and presumptions, therefore, liable to be set aside.
3. On the other hand, learned counsel for respondent Faisal Mir (petitioner in Writ Petition No.57 of 2011) opposed the contentions of petitioner Mst. Rabia Rashid and also assailed the impugned judgments and decrees by arguing that petitioner has failed to Substantiate the factum of cruelty and in case of dissolution of marriage the wife was legally and morally bound to return the benefits so received from the husband. It was argued that learned appellate Court was not justified to dissolve the marriage on the basis of khula. It was argued that decree for recovery of dower and maintenance has wrongly been passed, which is liable to be set aside.*
4. Arguments of learned counsel for the parties have been heard at great length and record perused with their valuable assistance.
5. The main contention of the counsel for the petitioner Faisal Mir was that the lower appellate Court has no jurisdiction to entertain the appeal filed against the judgment of the trial Court/FamiLy Court. His plea was that under section 14 of the Family Courts Act, 1964 no appeal lays wherein marriage is not dissolved by the Family Court. He was also of the view that when the plea of dissolution of marriage of the plaintiff / respondent was rejected by the trial Court, the learned appellate Court was not competent to dissolve the marriage between the spouses. For ready reference we want to reproduce hereunder section 14 of the Act ibid:--
14. Appeal. -- (I) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable:-- (a)To the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status as of a District Judge or an Additional District Judge; and (b)(to the District Court in any other case.)
2. No appeal shall lie from a decree by a Family Court--- (a)for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, I 939; (b)for dower (or dowry) not exceeding rupees (thirty thousand), (c)for maintenance of rupees (one thousand) or less per month.
(3)No appeal or revision shall lie against an interim order passed by a Family Court.
(4)The Appellate Court referred to in subsection (1) shall dispose of the appeal within a period of four months.
7. The object to deprive from filing of appeal against the decree regarding dissolution of marriage is that the agony of the spouses regarding the tie of marriage should be shortened. The wisdom of the legislature is to expeditiously resolve the controversy regarding the disputes which are outcome of the marriage as early as possible especially when the dissolution of marriage is sub judice. The theme behind the proceedings of reconciliation proceedings before and after evidence and taking out of the right of appeal in case of dissolution of marriage by the Family Court is only to settle the matter regarding the marriage of the spouses as early as possible. The right of appeal, if marriage is dissolved by the Family Court, has been taken out of the ambit of Section 14 of the Act ibid. However, when the marriage is dissolved under section 2(viii)(d) of the Dissolution of Muslim Marriages Act, 1939 the right of appeal before the District Judge has been awarded to the judgment-debtor/defendant husband. From the bare reading of section 14(2)(a) of the Act, it is crystal clear that except decree of dissolution of marriage in all other cases decree passed by the Family B Court, appeal can; be entertained by the District or Additional District Judge concerned.
8. The proceedings before the District Judge in case of appeal is the continuation of the proceedings, which are culminated in the shape of decree granted by the Family Court. District Judge/Additional District Judge enjoys all the powers which the Family Court has. In the presentA ease petitioner plaintiff aggrieved from the decree whereby marriage was not dissolved by the Family Court and filed appeal for dissolution of marriage as well as for other relief, hence, in the light of the abovec/.c stated legal position, the learned appellate Court has rightly exercised his jurisdiction by entertaining the appeal filed before him.
9. Admittedly, the marriage between the parties was solemnized in lieu of Rs.2,00,000/-, 5 tolas gold ornaments and share from the house of husband whereas maintenance was fixed at Rs.5000/- per month. The husband and wife lived happily for about 3 months and thereafter the conduct of husband was changed and ultimately husband left for abroad to complete his education at UK or to earn his livelihood and left the petitioner at the mercy of his parents. It was also alleged by the petitioner that during his stay abroad he never bothered to send a single penny to his wife. During this prolong period, the husband also failed to perform his marital obligations being abroad from the country. The parents of petitioner Faisal Mir off and on used to insult her during this period.
10. The contention of the counsel for the petitioner was that when the appellate court has appreciated the evidence regarding the cruelty then decree should not have been passed on the basis of khula rather marriage should have been dissolved on the ground of cruelty. It is also important feature of the case that just after the marriage the husband only spent three months with the petitioner and left the country for the purpose of further education. The petitioner after departure of respondent remained with the parents of the respondent and she was left at the mercy of his parents. The cruelty and torture cannot only be considered when physically one is tortured. In case during the period of matrimonial relation when husband neglects his wife, showed reluctance to pay the maintenance allowance, default in payment of dower and leaves his wife at the mercy of his relatives i.e. parents etc, lives separately for sufficient long time from the wife, especially when D contracts second marriage and that too without the consent of his wife are the grounds of cruelty which the wife mentally, psychologically and spiritually suffer and, hence, in such like cases same acts on the part of husband will be considered as cruelty, which attracts the ground for dissolution of marriage. The relation between the spouses is very delicate, the sacred relation which requires sympathy, loyalty, taking care of each other, sharing the miseries and to provide a cordial atmosphere for the advancement of matrimonial life. When all these ^ grounds which are used for the strengthening of spouses relationship are ignored, overlooked or smashed, the matrimonial relation cannot be .maintained happily through external tie, legal or customary impact. Similar is the case of present parties.
11. It is an admitted fact that respondent has not only neglected the petitioner rather has contracted the second marriage without the consent I-' of the petitioner as well as without fulfilling the formalities as laid down under section 6 of the Muslim Family Laws Ordinance, 1961, which j reads:--
(1) Polygamy.-- (1) No man, during the subsistence of an existing marriage shall except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.
(2)An application for permission under subsection (1) shall be .submitted to the Chairman in the prescribed manner together with the prescribed fee, and shall state reasons for the proposed marriage; and whether the consent of existing, wife or wives has been obtained".
12. The appellate Court enjoys all the powers of the Family Court being in continuation of proceedings initiated before the Family Court and has rightly thrashed rmt the entire evidence and observed the conduct of the parties. The psychological, mental and spiritual torture committed by respondent also considering the statement of petitioner has rightly came to the conclusion that both the parties cannot live within the limits of Almighty Allah. Instead of compelling to live together in spite of the hatred developed between the parties especially in presence of second wife, the learned appellate Court has rightly granted the decree for recovery of Rs.2,00,000/-, which was fixed as dower at the time of nikah but was not paid to the petitioner. The learned court below has rightly come to the conclusion that non-payment of dower as well as contracting second marriage and that too without the consent of existing wife and observing the legal formality warrants dissolution of marriage on the basis of khula but subject to payment of dower as mentioned as above. However, the dower regarding portion of the house has rightly been denied which in the light of dictum laid down in case Dr. Fakhar- ud-Din v. Mst. Kausar Takreem and another reported as PLD 2009 Peshawar 92 in para-29 is found reasonable, as it has been held therein as under:-- "The cited Verse of the Holy Qur'an would suggest that the wife has to return some consideration to the husband on seeking dissolution of marriage on the basis of khula. It does not command in express words and clear terms that the entire consideration beneftts/Haq Mehr received by the wife has to be repaid, therefore, in our view, in peculiar and exceptional circumstances, the Judge has the authority to determine that the Haq Mehr/consideration as a whole is not to be repaid by the wife but a part of it. Similarly, it can also determine as to what extent the husband can be relieved from the payment of dower, to the wife, if not already paid."
13. Almighty Allah in Holy Qur'an has also laid down the principle when the parties cannot live together within the limits of Almighty Allah and to dissolve the marriage on the basis of khula, the criteria has been ( laid down in Qur'anic Verse of Soora-e-Baqra, which is reproduced as under:-- "Divorce must be pronounced'twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that you take from women aught of that which you have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if you fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself. These are the limits (imposed by)
Allah. Transgress them not, for whose transgresseth Allah's such are wrongdoers".
Dealing with the proposition which emanates from the above mentioned holy Verse Maulana Abdul Aala Maudoodi in: Tafheem-ul- Quran (vol.l) page 1756 has commented in the following diction: -- {{URDU TEXT}} Similar matter has also been resolved in case of Mst. Khurshid Bibi v. Baboo Muhammad Amin reported as PLD 1967 Supreme Court 97, wherein it has been held as under: -- "It is necessary for the Court to ascertain in a case of KhulIah what benefits have been conferred on the wife by the husband as a consideration of the marriage and it is in the discretion of the Court to fix the amount of compensation In the facts and circumstances of the case the learned appellate Court has rightly passed the impugned judgment and decree, which needs no interference by this Court.
14. Consequently, both the writ petitions being devoid of merit are hereby dismissed.