1. ' SARDAR ABDUL HAMEED KHAN, J.---As the appeal and contempt application relate to the same matter; therefore, these are being consolidated and disposed off through this single judgment.
2. ' The facts precisely stated are that Mst. Zaheen Kausar, respondent No,1 herein, filed a suit for dissolution of marriage before Judge Family Court Kotli on 18-6-2012 on the ground of cruelty, non- payment of maintenance allowance, non-performance of marital obligations, and alternative on the ground of 'Khula'. Asif Jahangir, appellant herein, resisted the aforesaid suit by filing written statement and also filed a suit for restitution of conjugal right before Judge Family Court Kotli on 8- 6-2012, which was resisted by Mst. Zaheen Kausar through filing written statement. Both the suits were consolidated by the learned Judge Family Court and framed issues in light of pleadings of the parties.
3. ' After conclusion of the trial, the learned Judge Family Court, heard arguments of the learned Advocates for the parties and passed a decree for dissolution of marriage on the ground of 'Khula', whereas the suit filed by Asif Jahangir, appellant, for restitution of conjugal rights was dismissed vide decision and decree dated S-5-2013. Feeling aggrieved, the appellant has challenged the aforesaid decision and decree before this Court, whereas the contempt application has also been filed because according to appellant, Mst. Zaheen Kausar has contracted second marriage during pendency of appeal.
4. ' Raja Tabraiz Iqbal, the learned counsel for the appellant contended that the learned Judge Family Court while passing the impugned decision and decree committed grave illegality. The learned Counsel submitted that the Court below misread the evidence of the parties and did not appreciate the same in its true perspective. The learned Counsel stressed on the point that the Court below went behind the pleadings of the suit committed grave error while passing a decree on ground of 'Khula', without consideration amount; therefore, in case of dissolution of marriage on 'Khula', the dower received in form of ornaments by respondent No,1 be returned to him. The learned Counsel contended that the respondent could not prove her case on the ground of cruelty, non-performance of marital obligations and non-payment of maintenance allowance; therefore, the impugned decision and decree may be set aside and the case be remanded to the Court below for afresh decision. He further submitted that the respondent may also be punished in contempt proceedings. The learned Counsel cited 2005 MLD (Lahore) 376 and 2006 SCR 190 in support of his contentions.
5. ' On the other hand, Malik Muhammad Zaraat Khan, the learned Counsel for the respondents, controverted the arguments raised by the learned Counsel for the appellant and submitted the appellant miserably failed to prove his case for restitution of conjugal rights. Moreover, the appellant failed to cross-examine the respondent on the point of snatching away ornament from her by appellant; therefore, the Court below has rightly passed the decree for dissolution of marriage on the ground of 'Khula', without consideration for 'Khula', which may not be set-aside.
6. The learned counsel agitated that even otherwise a decree for dissolution of marriage on the basis of 'Khula' can be granted by the Family Court if the wife expresses that she has developed severe hatred against her husband and the spouses cannot live together within the limits ordained by Almighty Allah; therefore, the Court below rightly dissolved the marriage on the basis of 'Khula'. The learned counsel defended the impugned decision and decree on all counts and prayed for dismissal of the appeal. In support of the arguments, the learned counsel referred 1985 CLC (Lahore) 2758 and PLD 1986 (Lahore) 272 and prayed for the dismissal of appeal with costs.
7. ' I have heard the learned Advocates for the parties and gone through the available record carefully.
8. In the case in hand, Mst. Zaheen Kausar, respondent, herein, filed a suit for dissolution of marriage while Asif Jahangir filed a cross suit for restitution of conjugal rights before Judge Family Court Kotli.
9. The learned Judge Family Court passed a decree for dissolution of marriage on the ground of 'Khula', without return of dower amount, as consideration for 'Khula', in favour of Mst. Zaheen Kausar, whereas the suit filed by appellant for restitution of conjugal rights was dismissed.
10. In order to arrive at a just conclusion of the matter, I have gone through the evidence of the parties.
11. A thorough perusal of evidence of the parties reveals that Mst. Zaheen Kausar has proved her suit before Judge Family Court regarding dissolution of marriage. Because record shows that she clearly averred in her plaint as well as in her statement that ornaments were snatched away from her by the appellant, but the appellant did not rebut her aforesaid version in the cross- examination, which amounts that he has admitted this fact. The witnesses have also supported her version. Therefore, the learned Judge Family Court has rightly appreciated the evidence of the parties in its true perspective.
12. I am. Also cognizant of the fact that a decree for dissolution of marriage can be passed without consideration for 'Khula' and it is not lawful for a husband to take back anything from his wife particularly when 'Khula' is due to some fault on the part of husband, and in the present case it is fault of the husband that he snatched away ornaments and turned her out from his house, which fact is fully established from the evidence. The aforesaid view finds support from a case reported as Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi (PLD 1959 (W.P.) Lahore 566), wherein it was observed in paragraph 24 at page 582 of the report as under:- "Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received. The jurisdiction of the Qazi to dissolve a marriage in cases of shiqaq is limited only by what is stated in the Qur'an, i,e,, "if you fear a breach" which means that there is real-discord between the parties, and in the case of Khula by the words "If you fear that they will not observe .The Limits of God". While effecting separation, the Qazi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife."
13. Therefore, the learned Judge Family Court has not committed any illegality while passing a decree for dissolution of marriage on the ground of 'Khula', without consideration.
14. ' So far as the argument of the learned counsel for the appellant regarding contempt application is concerned, a perusal of record reveals that the service upon respondent No,1 was effected upon her after contracting second marriage by respondent No,1 and in such state of affairs, she cannot be, punished; therefore, the argument of the learned Counsel for the appellant/petitioner is repelled.
15. The nutshell of above discussion is that finding no force in the appeal as well as in the contempt application, these are hereby dismissed. A copy of the judgment, shall be annexed with other relevant file.