' ARSHAD MAHMOOD TABASSUM, J. --- Mst. Naeema Bibi alias Neelam, respondent No, 2 herein, on 07.02.2011 instituted suit for dissolution of marriage on the basis of Khula and recovery of dowry articles against the present petitioner. The said suit was contested by the petitioner, and on failure of pre-trial reconciliation proceedings, the learned Judge Family Court, Kot Addu passed the following order:- "Arguments of learned counsel for both the parties have been heard today whereas the statements of the parties regarding reconciliation were recorded on 16.04.2011. According to the statement of plaintiff, she categorically stated that she is not ready to reconcile with the defendant in any manner and made prayer for dissolution of marriage even on the basis of Khula and at same time stated that the dower was not given to her. Contrary to that, defendant also got recorded his statement that he is ready to reconcile with the plaintiff, in case the plaintiff does not want to reconcile, then he is entitled to recover the dower as mentioned in the Nikah Nama as a Zarr-e-Khula. According to the statements of the parties, there is no chance for pre-trial reconciliation efforts between the parties and the same are deemed to be failed. Since both the spouses are at variance regarding dower and this can be resolved only after calling evidence of both the parties and there is no legal embargo for passing the decree of dissolution of marriage.
As far as other claim of the defendant in addition to dower are concerned, they do not come under the jurisdiction of Family Court and the defendant may avail the proper remedy for those. The suit of the plaintiff for dissolution of marriage on the basis of Khula in lieu of dower is hereby decreed u/s. 10(iv) of the Family Courts Act, 1964. Decree sheet be prepared. Copy of this order be sent to the concerned Union Council within seven days."
2. Being aggrieved of the above-said order, the petitioner has approached this Court in its Constitutional jurisdiction.
3. Learned counsel for the petitioner has argued that in the Nikah Nama, which is an admitted document between the parties, it is clearly mentioned that gold ornaments weighing 4-tolas, cash amounting to Rs, 1,000/-and a residential house was given to the respondent/wife at the time of marriage, and that the learned Judge Family Court was obliged to pass a decree for dissolution of marriage on the basis of Khula directing the wife to return the benefits, that she had derived in lieu of decree of Khula, but by not restoring the said benefits, the learned Judge Family Court has committed illegality, hence, the impugned order has been passed without any lawful authority.
4. Learned counsel for respondent No, 2 has fully supported the impugned judgment and decree.
5. Heard. Record perused.
6. The impugned order suggests that the decree for dissolution of marriage on the basis of Khula was passed in lieu of dower with the observation that since the parties were at variance regarding dower and the same could be resolved after recording evidence of both the parties. In this regard, the learned Judge Family Court also framed issues and put the parties to trial. The matter will be resolved in due cc course of time, hence, the decree passed in favour of respondent No, 2 has neither any legal infirmity nor is violative of the law on-the subject. In this regard, it may be observed that in the case of Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others PLD 1983 Supreme Court of Pakistan 169, the Hon'ble Supreme Court was pleased to hold that non- restoration of consideration for Khula did not invalidate the dissolution of marriage by Khula and once the Family Court came to the conclusion that the parties could not remain within the limits of God, the dissolution must take place and the inquiry and finding with regard to the benefits to be returned by the wife to the husband would only create civil liabilities upon the wife and would not have any effect upon the dissolution itself. On this point, I am also fortified in my view by the dictum laid down in the case of Muhammad ljaz Khan (2005 YLR 2799), the relevant portion whereof reads as under:--- "The decree for dissolution of marriage having been passed in favour of Mst. Samia Naz is upheld and is not being disturbed but the case is remanded to the learned Judge Family Court concerned, to grant an opportunity of hearing to the parties, record the evidence and to determine as to how much Haq Mahr was received by wife in consideration of marriage at the time of marriage and as to whether the petitioner/defendant was entitled to such benefits or not and to pass a decree strictly in accordance with law. The writ petition to that extent is accepted, with no order as to costs."
7. In the instant case, the decree for dissolution of marriage has been passed on the basis of Khula in lieu of dower, however, the amount of dower paid by the petitioner and received by the respondent wife would be determined by the learned Judge Family Court after recording of evidence of both the parties.
8. For what has been discussed above, this petition has no merits, which fails and the same is hereby dismissed.