' MAZHAR ALAM KHAN MIANKHEL, J.---By way of this single judgment, we intend to dispose of Writ Petitions Nos. 1275 of 2012, 217 and 1493of 2013 as the subject matter is the same and common in all the three petitions between the same parties.
2. By way of Writ Petition No, 1275 of 2012, the petitioner has questioned the legality of the judgment and decree dated 27-9-2011 of Additional District Judge-IV, Peshawar whereby the appellate Court by partially allowing the appeal of respondent/ wife, set aside the judgment and decree of Civil Judge-VIII/Judge Family Court, Peshawar dated 28-2-2011 regarding restitution of conjugal rights.
Whereas in Writ Petition No, 217-P/13, the petitioner has questioned the judgment, and decrees of the Judge Family Court and that of the appellate Court (in subsequent round of litigation) for dissolution of marriage. Writ Petition No, 1493-P of 2013 filed by present respondent Bibi Nasim is against order dated 14-2-2012 of Judge Family Court/executing Court whereby application dated 9-1-2012 of present petitioner for assessment of market value of five Tolas gold prevailing in the year 2006 was accepted and her appeal thereagainst was dismissed vide judgment dated 23-7- 2012 of Additional District Judge-II, Peshawar.
3. Learned counsel for the petitioner argued that the learned Judge Family Court in his suit for restitution of conjugal rights has unlawfully and illegally passed a decree dated 14-7-2012 for dissolution of marriage without recording of evidence at the time of pre-trial reconciliation. He further argued that on failure of pre-trial reconciliation, the dissolution should have been on the basis of 'Khula' as per proviso to section 10(4) of the Family Courts Act, 1964. The learned counsel supported the impugned order dated 14-7-2012 in W.P. No, 1493-P/13 for assessment of market value of gold, prevailing in the year 2006.
4. Learned counsel for respondent argued that the Writ Petition No, 1275 of 2012 has become infructuous in the given circumstances as the petitioner has filed present suit for restitution of conjugal rights. He further argued that the decree for dissolution of marriage is within the sphere of law in the peculiar circumstances of the case. While arguing his Writ Petition No, 1493-P/2013, he argued that the claim of respondent at the time of institution of her suit (earlier round of litigation) was for recovery of ten Tolas gold or prevalent market value besides other claims, so the findings of the executing Court and that of appellate Court regarding assessment of market price of gold prevailing in the year 2006 is totally against the law; that the petitioner is bound to pay the gold in kind or its market price prevailing these days.
5. Learned counsel for the parties were heard and record of the case was perused.
6. Perusal of the record would reveal that 'Nikah' of the parties was performed on 19-10-2006 but 'Rukhsati' had not taken place between the parties. Both the spouses were the employees of Health Department and because of common place of service, both used to meet each other frequently.
The petitioner was allegedly an addict person and he off-and-on compelled the respondent to pay him money to satisfy his strong restless desire of addiction. So, the respondent as a last resort in the year 2008 filed a family suit for recovery of dower in the shape of cash, gold and maintenance.
After conclusion of trial, the Judge Family Court granted her a decree for half of dower i,e, 5 Tolas gold and dismissed her remaining suit as 'Rukhsati' between the parties had not taken place. The Judge Family Court, besides the above, also granted a decree for restitution of conjugal rights in favour of petitioner but I ppeal, the appellate Court while maintaining the decree of half of dower for wife, set aside the decree for restitution of conjugal rights but also permitted him to file another suit for the same relief after fulfilment of obligation on his part. Present writ petition is against the judgment and decree of appellate Court.
7. Since the petitioner subsequently filed another suit for restitution of conjugal rights, hence this writ petition against setting aside of decree for restitution of conjugal rights by the appellate Court has become infructuous and dismissed as such.
8. Now comes Writ Petition No,217- P/13 of the petitioner wherein he has questioned decree for dissolution of marriage between the parties. Though it was a subsequent suit of petitioner for restitution of conjugal rights but the Judge Family Court on failure of the pre-trial reconciliation proceedings, dissolved the marriage of the parties on the ground of second marriage of the petitioner without permission and consent of wife/respondent and the Judge Family Court also recorded the statements of both the spouses in this regard. The judgment and decree dated 14-7- 2012 of trial Court is well reasoned judgment. The relevant part of the same requires reproduction:- "At this stage at the failure of pretrial reconciliation proceeding, due to extreme aversion and disliking of defendant towards plaintiff, there is no chance of their happy matrimonial life in future, because free consent of wife is necessary for strong nuptial bond and happy matrimonial life, without the consent of defendant, she cannot be compelled to go and live with plaintiff. Islam does not thrust upon the parties a marriage devoid of bliss and happiness. At the failure of pre- trial re-conciliation proceeding, there is no need to proceed further and record evidence of the parties. Therefore, added proviso of Section 10 of Muslim Family Courts Act, 1964 (Amended Ordinance 2002) is hereby invoked, according to that at the failure of pre-trial reconciliation, Court then and there dissolve the marriage tie and there is no need to proceed further and record evidence of the parties. As plaintiff has contracted 2nd marriage without the permission of defendant; this fact has already been admitted by him in the Court and in this respect his statement has already been recorded which is placed on file. Without proving any other grounds on the said ground too she/defendant can get a decree for the dissolution of marriage because under the law contracting second marriage without the permission of first wife is a good ground for the dissolution of marriage! Obviously, first wife feels an insult if her husband, contract 2nd marriage, such conduct of husband breaks her heart if not bones and when heart is broken it is simply immaterial if bones are intact. Thus defendant is entitled for the decree of dissolution of marriage."
A look at the above quoted part of the judgment would make it clear that the Court by keeping in view the question of second marriage of the petitioner without the consent and prior permission of wife/ respondent granted a decree, for dissolution of marriage. The learned Judge Family Court though referred to provisions of Section 10(4) of Family Courts Act, 1964 as added by Family Courts (Amendment) Ordinance, 2002, which provides dissolution with restoration of benefits of marriage but the Judge Family Court by keeping in view the peculiar circumstances of the case does not opt to order the return of benefits. This, under the law, is within the domain of Qazi/Judge Family Court.
It is for the Qazi/Judge Family Court to decide the matter of return of benefits of marriage.
Reference in this regard can be made to Dr. Fakhr-ud-Din v. Mst. Kausar Takreem and another (PLD 2009 Peshawar 92), Mst. Sarwat Begam v. Farmanullah and 2 others (PLD 2012 Peshawar 164) and Nasir v. Mst. Rubina and 2 others (2012 MLD 1576). The stance of the learned counsel for the petitioner throughout remained that the dissolution so ordered should have been on the basis of "Khulla" for which the respondent/wife had to surrender the only benefit of marriage granted to her by the decree of Family Court dated 28-2-2011 in the shape of 5 Tolas gold (which is yet to be paid).
His entire exercise was to wriggle out of the said liability by asking for return/surrender of marriage benefits. The peculiar circumstances of the case required that the respondent/wife should have been compensated more but the Courts of law cannot grant which is not provided in the law. The learned counsel for the petitioner tried his level best to make out a case for interference but was unable to convince us on the issue. So, we in the circumstances see no merit in this writ petition which is dismissed as such.
9. Now comes the third and last writ petition bearing 'No, 1493-P of 2013 filed by respondent Bibi Nasim.
10. The bare reading of the plaint of respondent lady would reveal that she had claimed ten Tolas of gold ornaments in kind or its prevalent market price. This claim does not mean that she has claimed the market price of gold prevailing at the time of "Nikah" or filing of suit for recovery. It would be the price of the gold prevailing at the time of its payment. If the petitioner disputes the price, then he is bound to pay the gold in kind. Reference 'in this regard can also be made to Mst.
Ayesha Shaheen v. Khalid Mehmood and another (2013 SCMR 1049).
' The executing Court and the revisional Court in the given circumstances failed to exercise their jurisdiction in accordance with law which are not tenable and thus have committed illegality. The findings of the two Courts below worth reversal, hence set aside and consequently this writ petition is allowed.