' NISAR HUSSAIN KHAN, J.--Petitioner has questioned the judgments and decrees of learned Judge Family Court, Peshawar, dated 10-9-2011 and that of Appellate Court dated 9-1-2013 whereby family suit of the respondent was partially decreed.
2. Resume of facts forming background of instant petition is that Mst.Sayyida Haleema Bibi plaintiff/respondent No,1 filed suit for dissolution of marriage, recovery of 25 Tola gold ornaments, Rs,10000/- cash, one plot measuring 30 x 60 feet, Margalla Town, Phase-2, Islamabad along with property, described in the heading of the plaint, vide Mutation No,4573, dated 6-6-2002 and mutation No,. 2235, dated 6-6-2002 in lieu of dower. She also claimed maintenance at the rate of Rs,5000/- per month since the date of Nikah i,e, 1-6-2002 till decision of the case. According to the plaint, Rukhsati of the plaintiff/respondent had not taken place when the suit was filed. It is averred that after her Nikah, plaintiff came to know about character and antecedents of the defendants which were not of a noble and gentle person who was interested in someone else, so despite demand, he was reluctant to get Rukhsati effected. The defendant in his written statement controverted all the allegations of the plaintiff with regard to cruelty of second marriage. However, he did not deny execution of the Nikah and fixation of the dower but alleged that the dower fixed was paid to her. The learned trial court after recording evidence, decreed the suit of the plaintiff to the extent of 25 Tola gold ornaments which were already paid to the plaintiff, possession of the land transferred vide Mutation No,2235 dated 6-6-2002 along with monthly maintenance allowance at the rate of Rs,5000/- per month from institution of the suit till her Iddat period while rest of the claim was turned down. The findings of the trial court on Issues Nos.4, 6, 7, 8 and 9 reflect that half of the dower was allowed to the plaintiff because Rukhsati has not yet taken place and she was held entitled to the decree for dissolution of marriage and dower because of cruelty.
Because Rukhsati had not taken place, so second marriage of the defendant/husband was treated as cruelty.
3. Both the parties challenged the judgment of the Family Court by filing their respective appeals, before the District Judge. The learned Appellate Court dismissed the appeal of the plaintiff/respondent being time barred while partially accepting appeal of the petitioner, modified the decree of the trial court only to the extent of maintenance which was reduced to lddat period only while rest of the findings of the trial court were maintained.
4. Learned counsel for petitioner argued that marriage of the parties was dissolved by the Family Court at the initial stage of the suit on failure of pre-trial reconciliation proceedings, so the decree of the trial court for dissolution of marriage on the basis of cruelty is wrong and illegal. He maintained that the marriage has not consummated because the Rukhsati could not take place due to plaintiff herself, so she was not entitled to dower or maintenance. He lastly submitted that both the parties have entered into marriages with their other respective spouses.
5. As against that learned counsel for the respondent contended that the marriage was not dissolved on the basis of Khulla but on the basis of cruelty because of second marriage of the petitioner, so the learned lower court has rightly passed the decree in favour of the respondent.
6. We have scanned the record in the light of arguments addressed at the bar with the valuable assistance of learned counsel for the parties.
7' The question before this court to be resolved is that whether second marriage of the husband can be treated as cruelty and as such the plaintiff/wife is entitled to decree for dissolution of marriage, dower and maintenance and what would be the nature of the dissolution of marriage on failure of pre-trial reconciliation proceedings? Since whole case of the parties hinges upon the aforesaid legal proposition in light of the admitted facts that Rukhsati of the plaintiff has not taken place as yet, who has also entered into second marriage and the marriage of the parties was dissolved by the learned trial court at the very initial stage of the suit ,when pre-trial reconciliation failed. Therefore, to resolve this proposition, we shall have to revert to Section 2(ii-a) of the Dissolution of Muslim Marriages Act 1939 which postulates that a Muslim woman shall be entitled to obtain a decree for dissolution of her marriage if her husband has taken additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961. The decree in favour of plaintiff, purportedly, has been passed by pressing into service ibid clause of the Act. This clause was added through Section 13 of the Muslim Family Laws Ordinance, 1961 (Ordinance VIII of 1961) on the A recommendation of the Commission on Marriages and Family Laws. However, the same was omitted vide Item No,18 of Second Schedule of Federal Laws (Revision and Declaration) Ordinance, 1981 (Ordinance XXVII of 1981). This Ordinance was later on validated by substitution of Article 270A of the Constitution of Islamic Republic of Pakistan, 1973 vide 8th Amendment Act 1985. In view of this legal position, Clause (ii-a) of Section 2 of the Dissolution of Muslim Marriages Act, 1939 has no longer remained part of the Statute since 1981. In consequence whereof taking of second wife in marriage, in presence of the first wife, even without permission or consent of the first wife, is no more a valid legal ground for dissolution of marriage. Pursuant to this legal position, the findings of both the courts below of awarding the decree for dissolution of marriage on the ground of second marriage of husband and consequential decree for recovery of dower and maintenance are unwarranted, illegal and nullity in the eye of law.
8. Beside that the perusal of the judgments of the trial court reflects that on failure of pre-trial reconciliation proceedings, marriage of the parties was dissolved vide order dated 24-2-2007 and thereafter issues were framed and parties were put to trial for recording pro and contra evidence.
The only provision which empowers the Family Court to dissolve the marriage of the parties in such manner is Proviso to section 10(4) of the West Pakistan Family Courts Act, 1964, which for ready reference and to properly appreciate the legal aspect of the case is reproduced herein below:-- "10. Pre-trial Proceeding.--
(1) xxxxxxxxxxxx
(2) xxxxxxx
(3) xxxxxxxx
(4) xxxxxxxx ' 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."
9. Bare reading of the proviso envisages that in case of failure of reconciliation at pre-trial stage, the court shall not only pass a decree for dissolution of marriage forthwith but also restore the husband the Haq Mahr , received by the wife in consideration of marriage. In view of this legal position when it was crystal clear before the trial court that Rukhsati had not taken place and the plaintiff wife is not willing to live with the husband in compliance of her marital obligation and the trial court due to the same reason, reached to a conclusion that re-union of the parties is impossible, had dissolved the marriage at pre-trial reconciliation stage, it was obligatory to restore Mahr/dower to husband received by the wife and there was no reason to go ahead with the trial to determine cruelty of the husband, which as observed earlier, was nothing else except second marriage of the petitioner/defendant. Whereas the same is not cruelty in view of legal position as discussed hereinabove. It follows that the marriage of the parties was dissolved on failure of pretrial reconciliation proceedings by invoking the provision of proviso to Section 10(4) of the West Pakistan Family Courts Act 1964,on the basis of Khulla, so plaintiff was not entitled to the decree for recovery of dower as well as Maintenance. Rather she is legally required to return the articles and property received in lieu of dower. It is established on the record that plaintiff was given 25 Tola Gold ornaments at the time of Nikah and property was also transferred in her name , vide mutation No,4573, dated 6-6-2002 measuring 41 Kanals, 7 Marla and 7 Sarsai and another property measuring 39 Kanal, vide Mutation No,2235, dated 6-6-2002.
11. So far as the maintenance is concerned, she is also not entitled thereto because Rukhsati has not taken place and it was the plaintiff herself who filed suit for dissolution of marriage which was dissolved by the trial court on the basis of Khulla. Admittedly, in view of this factual position, there was no fault on the part of defendant/ husband and he was still seeking restitution of conjugal rights but it was the plaintiff who opted separation due to second marriage of defendant. She was already residing with the parents and marriage has not consummated, therefore, there was no obligation on wife to observe lddat and she was free to marry immediately. The same principle has been provided in para/section 257 of Muhammadan Law by Sir Dinshah Fardunji Mulla. It follows that there was no obligation on the husband to maintain wife in such situation, as such she is not entitled to any maintenance as well even for lddat period.
12. For the reasons discussed above, instant petition is allowed, the impugned judgments and decrees of the lower courts are set aside and claim of the petitioner as averred in his written statement for recovery of 25 Tola Gold Ornaments and property is allowed. The gold ornaments received at time of Nikah shall be returned by respondent and the two mutations, referred to herein above, duly attested in favour of the plaintiff/wife shall stand cancelled while decree of maintenance is set aside.