' ATIF MAHMOOD, J.---Succinct facts leading to the institution of the instant writ petition are that respondent No,3 Mst. Saba Ahmed (the respondent) filed a suit for recovery of the dower on 10-1- 2008 with the averments that she was married with the petitioner Ali Mobin on 18-4-2004 and an amount of Rs,2,00,000 was fixed as her dower at the time of nikah. It was alleged in the plaint that the relations between the parties had become strained, therefore, she had left the house of her husband and started to live with her parents. She claimed that dower amount was not paid to her.
The suit was contested by the petitioner who filed written statement. He mainly took the objection that the suit was pre-mature as the dower was deferred one. Out of divergent pleadings of the parties, learned Judge, Family Court, Depalpur framed issues. Evidence was led by the respective parties. Thereafter, the learned family court decreed the suit of the respondent vide judgment and decree dated 27-3-2008. Feeling aggrieved, the petitioner filed an appeal which was dismissed by learned Additional District Judge, Depalpur vide judgment and decree dated 18-12-2008 maintaining the judgment and decree of learned family court.
2. During the pendency of the appeal on 21-7-2008, the respondent filed a suit for dissolution of marriage alleging that the petitioner was not a man of good character whose attitude towards the plaintiff had been harsh towards her since inception. It was asserted in the plaint that the petitioner had kicked out the plaintiff from his house after beating her about one year prior to the institution of the suit and since then she was residing in the house of her parents. The plaintiff also stated in the plaint that the parties cannot live more together within the limits prescribed by Allah Almighty but despite demand, the petitioner was not giving her talaq salasa. The summons were issued to the petitioner but he did not put appearance before the court. He was ultimately proceeded against ex parte. Thereafter, ex parte evidence was led by the respondent..
3. Since the plaintiff denied joining the defendant-petitioner as his wife, the suit for dissolution of marriage was decreed on the basis of khula vide judgment and decree dated 18-11-2008, i,e, before decision of the appeal filed by the petitioner in suit for recovery of dower instituted by the respondent. Hence this writ petition.
4. Learned counsel for the petitioner inter alia contends that since the respondent's suit for dissolution of marriage has been decreed on the basis of khula, the judgments and decrees passed for recovery of dower cannot be executed; that under section 10(4) of West Pakistan Family Courts Act, 1964 (the Act), the wife while seeking dissolution of marriage on the basis of khula is required to relinquish her claini of dower and even if it is not done, the court which passes the decree of khula is bound to restore the dower itself. Learned counsel avers that if the wife is not ready to waive her right of dower, the decree for dissolution of marriage on the basis of khula would be considered as void, therefore, this writ petition be allowed and judgments and decrees dated 27-3-2008 and 18-12-2008 passed by learned Judge Family Court and Additional District Judge, Depalpur respectively be set aside. He has relied upon the law laid down in cases titled Mst.
Khrushid Bibi v. Baboo Muhammad Amin (1992 M LD 1294), Muhabbat Hussain V. Mst. Naseem Akhtar and others (1992 PSC 1034) and Mst. Balqis Fatima v. Najm-ulIkram Qureshi (PLD 1959 (Writ Petition) Lahore 566).
5. On the other hand, learned counsel for the respondent has vehemently opposed this writ petition as well as contentions of learned counsel for the petitioner. He avers that it is the discretion of the family court either to fix consideration in lieu of dower or pass the decree of khula without it. He further asserts that since no consideration amount has been fixed by the family court, therefore, the concurrent judgments and decrees passed by learned courts below for recovery of dower amount can be executed and are immune from interference by this Court. He prays that this writ petition having no merit be dismissed.
6. I have heard the arguments advanced by learned counsel for the parties and also perused the record made available before me.
7. The moot point in this case is as to whether a decree for recovery of undisputed deferred dower amount can be executed when the marriage is dissolved by the court on the basis of khula.
8.
Admittedly, a decree for recovery of dower of Rs,200,000 has been passed in favour of the respondent-plaintiff lady upto the level of the learned lower appellate court. During the pendency of the appeal, another decree for dissolution of marriage on the basis of khula has also been passed by the learned Judge, Family Court, Depalpur without fixation of any consideration for khula. There is no dispute between the parties regarding the amount of deferred dower of Rs,200,000 which is unambiguously mentioned in the nikahnama. Undoubtedly, the amount of deferred dower becomes due to be paid to the wife at the time of dissolution of marriage or at the time when the husband leaves this world for the heavens. Since the marriage has been dissolved on the basis of khula through a decree of the court, a dispute has arisen between the parties as to whether the dower is payable or not. The petitioner side has asserted that in presence of the decree for dissolution of marriage on the basis of khula, the decree passed far recovery of dower amount is not executable in view of section 10 (4) of the Act whereas the respondent side has claimed that it is the discretion of the family court either or not to fix any consideration for award of decree and since the decree has been passed without fixation of any consideration for khula, the dower is payable and the judgments and decrees for recovery of dower amount concurrently passed against the petitioner are executable in their present form.
9. The Holy Quran is source of knowledge which provides us guidance in all spheres of life. It has been stated in verse No,229 of Surah Bacot- of Holy Quran that:- "Divorce may be pronounced twice; then kept (them) in good fellowship or let (them) go with kindness and it is not lawful for you to take back any part of what you have given them, unless both fear that they cannot keep within limits of Allah; then if you fear that they would be unable to keep the limits ordained by Allah; there is no blame on either of them if she gives something (to her husband) for her release."
From bare reading of above translation of the verse of the Holy Quran, it is evident that if a husband leaves her wife giving her talaq, he will not be entitled to receive anything back given by him to her spouse. However, if a wife herself wants to desert her husband, she will have to give something in lieu of her release.
10. Section 10(4) of the West Pakistan Family Courts Act, 1964 is relevant in this case which is reproduced below:-- "10(4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for the recording of the evidence; 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 also restore the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage."
(Emphasis provided)
Plain reading of the above proviso makes it crystal clear that it is incumbent upon the court which passes decree for dissolution of marriage on the basis of khula to restore the dower received by the wife to the husband. In my considered view, if both the spouses are unable to live a peaceful and harmonious life and the wife seeks dissolution of marriage on the basis of khula, a wife, if the husband does not relinquish what he has given to her, will have to pay back at least what she has received from her husband, however, no upper limit has been fixed by the Holy Quran for consideration for khula. In this case, the only thing which is disputed between the parties is to the extent of dower amount of Rs,200,000 for recovery of which a decree was passed by the learned Family Judge and upheld by learned Additional District Judge, Depalpur. Since the respondent lady has obtained decree for dissolution of marriage on the basis of khula, she cannot claim the amount of deferred dower as a deferred dower can only be paid to the wife if the divorce is given by the husband or in case the husband dies but in case where the wife has herself resorted to khula, she cannot claim the amount of dower. In this regard, I am fortified by the saying of Holy Prophet (peace be upon him) in the matter of Jamila, wife of Sabit Ibn Qais when she wished to separate from her husband. The Holy Prophet (peace be upon him) said: "Are you prepared to return the garden that he gave you." She said: "Yes, Oh Prophet of 'Allah' and even more." The Holy Prophet (peace be upon him) said: "No more, but you return the garden that he gave you."
11. For what has been discussed above, a wife seeking dissolution of marriage on the basis of khula will have to return or relinquish her dower and the court while passing such decree is bound to restore the dower to the husband, if the husband does not relinquish his right. Therefore, the learned Judge, Family Court when there was no dispute between the parties regarding the amount of dower should have ordered for restoration of dower of the plaintiff lady to the petitioner while passing the decree for dissolution of marriage on the basis of khula which is accordingly modified.
Resultantly, judgments and decrees dated 18-12-2008 and 27-3-2008 passed by learned Additional District Judge and Family Judge, Depalpur respectively for recovery of dower of Rs,200,000 from the petitioner have become redundant and inexecutable which are set aside. The writ petition is allowed in the said terms.