1. ATIR MAHMOOD, J.--- Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Syed Haroon Ahmed Sultan Bokhari has challenged the legality of judgment and decree dated 20-10-2010 passed by learned Judge, Family Court, Lahore whereby the suit of respondent No.1 Mst. Syeda Mubarak (the respondent) for dissolution of marriage on the basis of khula was decreed.
2. 2.Brief facts of the case are that the respondent filed a suit for dissolution of marriage on the basis of khula on 5-10-2010 with the averments that her nikah was performed with the petitioner on 19-11- 2009, however, rukhsati took place on 16-7-2010; that the attitude of the petitioner towards the respondent was not good from the very beginning who used to beat and torture her physically and mentally; that due to severe beating on 24-9-2010 by the petitioner to the respondent when she was pregnant, there occurred miscarriage, therefore, she asserted that the parties could not live together within the limits ordained by Allah Almighty. Written statement was filed by the petitioner.
3. Learned counsel for the petitioner conceded to decreeing of the suit subject to relinquishment of dower of Rs.100,000 and a plot given to her as dower. However, learned counsel for the respondent submitted that she was required to relinquish only a sum of Rs.100,000, i.e. the dower amount and not the plot received by her. Vide judgment and decree dated 20-10-2010, learned Judge Family Court, Lahore decreed the suit of the respondent on the basis of khula subject to relinquishment of her dower amount of Rs.100,000 or portion of the plot equal to Rs.100,000. Hence this writ petition.
4. 3.Learned counsel for the petitioner inter alia contends that at the time of marriage, the dower of the respondent was fixed as Rs.100,000 mentioned in Column No.13 and a plot measuring one kanal situated in Sui Northern Officers Co-operative Society; that the value of the plot at present is about Rs.10,000,000; that the divorce has not been given by the petitioner but it was sought by the respondent herself on the basis of khula; that under the prevailing law as well as Islamic Injunctions, a wife seeking dissolution of marriage on the basis of khula is bound to return everything including dower as well as the gifts received by her from her husband; that the allegations levelled against the petitioner are false and baseless; that the petitioner belongs to a respectable family; that the learned trial court has incorrectly held that Haqmehr is only Rs.100,000 and not the plot mentioned in Column No.16; that there was a settlement agreement arrived at between the parties on 19-10-2010 whereby it was settled that the petitioner would have no objection if the suit for dissolution of marriage filed by the respondent is decreed on the basis of khula and since the compromise was effected and it was incumbent upon the respondent to return the above referred plot (mentioned in Column No.16 of the Nikahnama) to the petitioner; that provision of section 10(4) of the West Pakistan Family Courts Act, 1964 has illegally and unlawfully been applied by holding that the respondent lady is only bound to relinquish the amount of dower and not the plot; that the petitioner is entitled and the respondent is under legal obligation to relinquish/return whatsoever she has received from the petitioner in the capacity of his wife; that the impugned judgment and decree is against law and fact as well as injunctions of Islam, therefore, this writ petition be allowed and the impugned judgment and decree be set aside.
5. He has relied upon the case-law reported as Flight LT. Anwarul Haasan Siddiqui v. Family Judge, Court No.III, Karachi and 2 others (PLD 1980 Karachi 477), Abdul Majid v. Razia Bibi and another (PLD 1975 Lahore 766), Mst. Khurshid Bibi v. Baboo Muhammad Amin, (PLD 1967 Supreme Court 97), Allauddin Arshad v. Mst. Neelofar Tareen and 2 others 1984 CLC 3369 and Mst. Saleha Babar v. Basit Saleem (2005 YLR 1648).
6. 4.On the other hand, learned counsel for the respondent submits that under section 10(4) of the West Pakistan Family Courts Act, 1964, a wife seeking dissolution of marriage on the basis of khula is only bound to relinquish the dower/Haqmehr and not the gifts received by her from her husband.
7. Learned counsel asserts that the dower amount of Rs.100,000 is clearly mentioned in Column No.13 of the nikahnama whereas the plot is mentioned in Column No.16; that had the plot been fixed as dower, it would have been written in Column No.13 and not in Column No.16; that the plot was given to the respondent as a gift which cannot be returned, however, the respondent has no objection on relinquishment of dower amount of Rs.100,000 mentioned in Column No.13. Learned counsel asserts that since the petitioner is not entitled under the law to receive back the gifts given by him to the respondent being her husband, therefore, this writ petition is without any force and prays that the same be dismissed. He has relied up the case-law reported as 2005 CLC 1844 2006 CLC 1662, 2006 SCMR 100, PLD 2009 Lahore 227, PLD 2009 Lahore 484, Abdur Rashid and another v. Mst. Shaheen Bibi and 2 others (PLD 1980 Peshawar 37), Shakeel Saood Khan v. Rizwana Khanum and another PLD 2012 Lahore 43 and Mst. Mussarat Iqbal Niazi v. Judge Family Court and others 2013 CLC 276.
8. 5.I have heard the arguments advanced by learned counsel for the parties and also perused the record made available before me.
9. 6.The only question which is to be resolved by this Court is as to whether the respondent was liable to relinquish her right in the Property bearing Plot No.2 measuring one Kanal situated in Sui Northern Officers Co-operative Society, Lahore and return of the same to the petitioner as a consideration for grant of khula or as to whether the amount of-Rs.1,00,000 which was mentioned in Column No.13 of the nikahnama as dower amount was the only consideration for "Khula".
10. 7.In this case, the plaint reflects that serious allegations of physical and mental torture were levelled against the present petitioner by the respondent and dissolution of marriage was sought on the basis of cruelty, habitual assault and cruelty by conduct (mental torture). Though there is an assertion that the respondent/plaintiff has developed severe hatred against the petitioner/ defendant but she never sought the dissolution of marriage on the basis of khula. While filing the written statement the respondent controverted the allegations but submitted that due to the intervention of respectable persons of both the parties, a settlement agreement is executed between the parties on 19-10-2010 and accordingly the respondent received the gold ornaments and valuable articles in the presence of the witnesses. He however, stated that he has no objection if the suit for dissolution of marriage is decreed on the basis of khula provided that all the benefits derived out of this relation be surrendered by the plaintiff including the dower amount as well as the rights in the Plot No.2 Block-C, Sui Gas Co-operative Housing Society Lahore received by her at the time of marriage. Subsequent to the filing of the written statement, the statement of learned counsel for the petitioner/defendant was recorded on 20-10-2010 stating that he has no objection if the suit for dissolution of marriage is decreed on the basis of khula whereas the respondent/ plaintiff made a statement on the same day to the effect that she was used to be tortured by her husband from the very first day of the marriage who remained drank most of the time and in the same condition, he tortured the respondent due to which her four months' pregnancy was miscarried and she remained in Services Hospital for her treatment. She stated that she is ready to forego the dower amount of Rs.1,00,000 for dissolution of marriage on the basis of khula.
11. 8.The contents of the settlement agreement dated 19-10-2010 have been taken into consideration.
12. The clause IV of the said agreement reads as under:--- "That the party of second part has no objection if the suit for dissolution of marriage filed by the first part on the basis of Khula is decreed. Furthermore, the party of second part shall appear before the Family Court on 20th October, 2010 and give his statement accordingly."
13. According to this clause, no condition has been imposed upon the respondent to surrender the rights of Plot No.2 in Block-C situated in Sui Northern Officers Co-operative Society nor any such claim was raised at the time when a conceding statement was made by the learned counsel for the petitioner.
14. 9.Under the Mohammadan Law, if the dissolution of marriage is made on the basis of khula, the wife is under an obligation to return/forgo the dower amount and the benefits derived from the husband but this principle is applicable when the khula is claimed by the wife without any fault of the husband. As there may not be any fault on the part of the husband due to which the wife develops aversion or hatred but if this aversion or hatred is result of the conduct of the husband which could be mental or physical torture, non-payment of maintenance allowance etc., then the return of dower amount is not essential. In the present case, the respondent has categorically mentioned the cause for developing the aversion against the petitioner which has not been controverted in any manner by the petitioner during proceedings before the trial Court.
15. 10.The marriage of the parties was dissolved under section 10(4) of the Family Courts Act, 1964 which reads as under:--- "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." (underline is mine)
16. Perusal of above referred provision of law reflects that the wife is liable to return the dower amount which is received by her at the time of marriage ceremony/nikah from the husband.
17. 11.In Column No.13 of the nikahnama, the amount of Haqmehr is mentioned whereas in Column No.14, the nature of Haqmehr as to whether it is deferred or prompt is specified and if any part of the Haqmehr is paid at the time of marriage, then Colum No.15 comes into picture wherein the amount paid is mentioned. Column No.16 of the nikahnama is very specific in its nature and is a corresponding column to Column No.13. The amount of the dower is mentioned in Column No.13 and if any property in lieu of haqmehr or any of its part is given in the shape of some property, then description and detail of that property is given in Column No.16. If the plot in question was given in lieu of the dower, the dower was prompt but as per Column No.14, it is deferred. In the present case, the dower amount was fixed as Rs.1,00,000 in Column No.13 which was a deferred one as mentioned in Column No.14, therefore, it cannot be presumed that the property mentioned in Column No. 16 i.e. Plot No.2 Block-C, Sui Gas Co-operative Housing Society Lahore was given to the respondent No.1 as dower. Another aspect of the matter is that the plot given to the respondent admittedly values at Rs.10,000,000 (rupees one crore) which can neither become part of the deferred dower of Rs.100,000 nor can be considered in lieu thereof because the plot given to the plaintiff lady is of much greater value than the amount of Rs.100,000 fixed as dower. In my considered view, this property was given to respondent No.1 as a bridal gift which cannot be termed as "Haqmehr", therefore, it is not returnable in consideration of "khula". The case-law relied by the learned counsel for the petitioner is distinguishable and is not attracted in the present case.
18. 12.The epitome of the whole discussion is that the entry of Column No.16 of the nikahnama which shows giving of a plot of one kanal worth Rs.10,000,000 can neither become part of the deferred dower of Rs.100,000 nor it can be presumed to have been given in lieu thereof. Had it been given in lieu of dower, the dower must have been prompt and not deferred. In addition, there is no comparison of Rs.100,000 (rupees one lac) of deferred dower fixed as per Column No.13 and a plot of Rs.10,000,000 (rupees one crore) mentioned in Column No.16 of the nikahnama, as such, the plot, in my considered view, was given as a bridal gift which by no stretch of imagination can be considered as the part or in lieu of the dower. Resultantly, this writ petition fails which is accordingly dismissed.