' CH. MUHAMMAD IBRAHIM ZIA, J. --- This appeal by leave of the Court is directed against the judgment and decree of the Shariat Court dated 29.3.2013, whereby the appeal filed by respondent No, 1 has been partly accepted.
2. Necessary facts giving rise to this appeal are that the plaintiff-appellant filed a suit for dissolution of marriage on the basis of cruelty, non-payment of the maintenance allowance and in alternate on the ground of mkhula" on 10.12.2009 before- the learned Judge, Family Court, Kotli, whereas, Muhammad Javaid Khan, defendant-respondent, also filed a suit for restitution of conjugal rights on 26.2.2011. Both the suits were consolidated and a decree on the basis of "Khula" without any consideration was passed in favour of the plaintiff-appellant, whereas the cross suit filed by the defendant-respondent, was dismissed. The defendant-respondent feeling aggrieved, challenged the judgment and decree of the Family Court through an appeal before the Shariat Court on 1.2.2012, The learned Judge, Shariat Court vide order dated 29.3.2013 partly accepted the appeal and set aside the judgment and decree of the Family Court with the modification that the defendant-respondent is entitled to receive 16 tolas and 6 mashas ornaments as dower consideration for "khula". The plaintiff-appellant was ordered to return ornaments as consideration for "khula". The plaintiff-appellant has challenged the propriety of the judgment and decree of the Shariat Court through the instant appeal.
3. Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the appellant after narration of necessary facts submitted that the impugned judgment through which modification has been made in the judgment of the Trial Court is violative of the principle of administration of justice. He forcefully argued that the appellant in para-2 of the plaint has made a specific regarding the lying of ornaments with the respondent. Firstly, this assertion has not been specifically denied in the written statement, moreover, the evidence adduced by the appellant on this point remained un- rebutted, thus, it was clear proof of the fact that the ornaments given to the appellant as dower were taken back by the defendant-respondent. Therefore, the modification made in the decree for dissolution of marriage by the Shariat Court to the extent that the appellant has not returned the ornaments weighing 19 tolas, 3 masha and 4 ratti, is against the pleadings of the parties, record of the case the principles of administration of justice thus, the impugned judgment requires modification. He further argued that the judgment passed by the Trial Court is quite in accordance with law. The respondent has not claimed the amount of K' iula. According to law, when the husband has not claimed the consideration amount of khula, in case of dissolution of marriage, wife cannot be forced to return the same. Even otherwise, modification in the impugned judgment is against law. He referred to the case reported as Noor Muhammad v. Judge, Family Court Burewala, District Behari and another [PLD 1989 Lahore, 31] and Zohra Bi v. Mohammad Saleem and others [PLJ 2005. SC (AJ&K) 171], in support of his contentions.
4. Conversely, Mr. Asghar Ali Malik, Advocate, the learned counsel for the respondents, strongly opposed the appeal on the ground that it is an admitted fact that the dower ornaments weighing 19 tolas, 3 masha and 4 ratti had been given to the appellant which was in her possession. She has failed to bring on record any cogent evidence regarding snatching of the same by the defendant- respondent. Therefore, the Shariat Court is justified in modifying the judgment and decree of the Trial Court. He further. contended that the defendant respondent clearly denied the assertion made in para 2 therefore, it is not correct that the same has not been denied. So for as the question that the respondent husband has not claimed the amount of Khula, hence, is not entitled to the decree on the basis of khula is concerned, is against law. According to the personal law of the parties, i,e, Shariah Law, if the marriage is dissolved on the basis of khula, according to the celebrated principle of Shariah, wife will have to return the property received from her husband, therefore, on this point, judgment of the Trial Court was against law, hence, the same has been rightly set at naught by the Shariat Court. Therefore, this appeal has no merits He placed reliance upon the cases reported as Mr. Bilqees Fatima v. Najamul-Ikram Qureshi [PLD .1969 Lahore, 566] and Khurshid Bibi v. Baboo Muhammad Amin [PLD 1967 SC 97].
5. We have considered the arguments of the learned counsel for the parties and also carefully examined the record. The first proposition which requires attention in this case is whether the ornaments were taken back by the defendant respondent as asserted in the plaint as this fact not been specifically denied in the written statement; their this fact has been proved by the appellant.
The next point is that if the husband has not claimed the amount of khula, in case of dissolution of marriage on the basis of khula, whether the Court can declare him entitled for return of the property received from him by the wife.
6. For resolution of first proposition, it will be useful to reproduce here the specific assertions on this issue made by the parties in their pleadings:--- {{URDU TEXT}}
7. A perusal of the above reproduced parts of the pleadings of the parties clearly proves that the appellant has made a specific assertion in the plaint. The defendant-respondent although has on one hand averred in reply that it is totally incorrect and false story and on the other hand also submitted a detailed reply. Regarding the taking back of the ornaments, not a single sentence has been brought on record by the defendant. The comparison of the pleadings of the parties clearly speaks that this clear specific assertion of the plaintiff has not been denied specifically. Thus, in the context of the pleadings of the parties, this reply appears to be evasive.
8. The next aspect of the matter is whether the fact of snatching away the ornaments by the defendant-respondent has been proved by the appellant through her evidence or not. The plaintiff-appellant appeared before the Court, got her own statement recorded, wherein she has categorically deposed that the ornaments were taken back by the defendant-respondent. She further stated that this happened between both of them and no one else was present. The defendant-respondent has not appeared in the Court to get his statement recorded rather his attorney has appeared on his behalf as a witness. As it has been hereinabove observed that the appellant has clearly deposed that the event of taking back of the ornaments took place between the spouses without presence of anybody else, hence, this evidence can only be disproved by the personal appearance of the defendant-respondent and no other evidence can be treated as relevant in this behalf. Thus, the failure of the defendant-respondent to appear as a witness and rebut the specific assertion relating to taking back of ornaments resulted into drawing the inference against him. Therefore, while considering all the aspects i,e, the evasive denial in the written statement, failure of persona! appearance of defendant-respondent before the Court; when compared to the specific assertion made by the plaintiff-appellant in her plaint, the clear statement recorded in support of the plaint resulted into drawing the conclus'on that the plaintiff's assertion on this specific proposition has been affirmatively proved.
9. The next legal proposition emerged is the findings of the Trial Court that the defendant- respondent has not claimed the amount of khula, hence, without the claim of husband, the Court cannot declare him entitled to the property to be returned to him from the wife. According to the clear principles of Qur'an and Sunnah. In case of dissolution of marriage on the basis of khula, it is prerogative of the Court to determine the amount of khula and pass decree to return the husband the amount whether it has been claimed by him or not. In this regard, reference can be made to an unreported latest judgment of this Court in the case titled Mah Jabeen Akhtar v. Zahid-ur-Rehman (civil appeal No, 5/2012) wherein it has been observed as under:-- "8. The next argument of the learned counsel for the appellant is that the husband in his pleadings has not claimed the consideration of 'khula' therefore, he is not entitled for the same and the decree for payment of consideration amount of 'khula' in his favour cannot be passed. In our opinion, the argument is misconceived, being not consistent with the fundamental principle of law settled in the Holy Qur'an as well as the undisputed Rules framed by the Holy Prophet (peace be upon him). The origin of the concept of 'khula' is based upon the principle of law laid down in the Holy verse No, 229, of Surat Albagarah. We would like to refer here English Translation of the Holy verse from the text of Holy Book, printed by King Abdul Aziz, Printing Press Madina, the Presidency of Islamic Researches, AIFTA, calis, guidance which reads as under:-- 'A divorce is only permissible twice, after that the parties should either hold together on equitable terms or separate with kindness. It is not lawful for you (men), to take back any of yours gifts (from your wives). Except whom both parties fear that they would be unable to keep the limits ordained by Allah. If ye (Judges) do indeed fear that they would be unable to keep the limits ordained by Allah. There is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah. So do not transgress them. If any do transgress the limits, ordained by Allah Such persons wrong (themselves as well as there): ' It will be useful to reproduce here the note given for the translation relating to the principle of 'khula' derived from this Holy Quranic verse, which reads as follows:--- "Exception:- If there is any fear that in safe guarding her economic rights her very freedom of person may suffer, the husband refusing the dissolution of marriage, and perhaps treating her with cruelty then in such exceptional cases, it is permissible to give some material consideration to the husband, but the need and equity of this should be submitted to the-judgment of impartial Judges (properly constituted Courts). A divorce of this kind is called 'Khula.'
' Thus, from the above-quoted command of Allah, it is clear that the Court is vested with the powers when the marriage is to be dissolved on the basis of 'khula' irrespective whether the husband has claimed or not or agrees upon dissolution of marriage on the basis of *hula' to determine the amount of 'khula' to be granted to the husband. In presence of this direct command of Allah, there is hardly any necessity to run for any other argument. <b>The contention of learned counsel for the appellant is not legally acceptable, hence, the same stands repelled.</b>"
' On this legal proposition, there is also a scholarly judgment of the apex Court of Pakistan in the case reported as Khurshid Bibi v. Baboo Muhammad Amin [PLD 1967 SC V]. Without adding anything we would like to reproduce here the relevant portion of the judgment which is comprehensive and cover all the aspects of the case:--- "12. The basis and foundation of khula is verse 2.229 of the Holy Qur'an, though the word khula finds no mention therein or in the Holy Qur'an. It has been translated as:--- 'Divorce must be pronounced twice; then either retain them in honour or release them with kindness. And it is not lawful for you that you take back from women anything out of what you have given them unless they both fear that they cannot observe the limits imposed by Allah. But if you fear that they cannot keep within the limits prescribed by Allah, then it is no sin for, either of them in what she gives up to be free, (i,e, ransoms herself). These are the limits imposed by Allah. Trangress them not For who so transgresses Allah's limits, it is they who are the wrong-doers.'
13.It is accepted by the Jurists and commentators that "you" in the words "if you fear" in the relevant verse refers to ulil-amar, and includes the Qazi, who represents the community for adjudication of disputed between the parties. Ample authority in support of this view having been quoted-by S.A. Rahman, J., in his judgment, it is unnecessary for me to repeat it here. I may however, add that the words (if you fear) by which the relevant part of the verse commences, also appear in the well-known verse 35, Section 6, Chapter IV of the Holy Quran in the context of shiqaq (Schism or breach) between the spouses:-- 'And if you fear a breach between the two, then appoint an arbiter from his people and an arbiter from her people; if they both desire agreement, Allah will effect harmony between them; surely Allah is knowing Aware.' Here also it is generally accepted that the word "you" refers to ulil-amar.
The word "you" can have no reference to the spouses, who are referred to in the relevant verse as "they two" and "them two". Therefore, the verse, in the relevant part, reads:--- 'but if the Qazi fears that they will not be able to keep within the limits prescribed by Allah, then it is no sin for either of them in what she gives up to be free.'
14.The following conclusions follow from a careful analysis of the verse:--- 15.Firstly, the words "if you fear" involved by necessary implication a reference to the Qazi and adjudication by him. The occasion for a reference to him arises only where the husband refuses to release his wife, when she demands a divorce, for if the matter is mutually agreed upon between the parties, the husband will divorce her, and there will be no reference to the Qazi, and no occasion for him to arrive at the conclusion that the parties will not keep within the limits of Allah. In consequence, the verse is a rule of decision in cases, where the husband refuses to release his wife, and is not in express terms applicable to cases of khula by mutual agreement where there is no reference to the Qazi. In khula, under the verse, the husband is permitted to accept what the wife may give him to be free and this is an exception to the general rule stated in cases of divorce by the husband in verse 2:229 and verses 19 and 20 of Sura Al-Nisa that it is not lawful for him to take back any part of what he has given to the wife, but it is lawful "if the Qazi entertains the fear".
Therefore, the verse contemplates an adjudication by the Qazi as justification for the husband's accepting what his wife gives him for being free. The provision of adjudication in the verse is evidence of Divine wisdom, for it ensures on the one hand that there are not too many too frequent and unrestricted dissolution of marriage (and thus there need be no fear of frequent breaking of family ties, as was expressed by M. Jan, J. in Mst. Saeeda Khanum v. Muhammad Sami), and on the other that the wife is not oppressed in order to deprive her of her property. Dr. Sabuni in his book "Madi Hurriat-uz-Zaujain Fittalaq" at page 572 states:-- 'A large Section of Muslim Jurists believe that Khula is lawful only if there is dislike on the part of the wife so that the husbands do not start oppressing their wives to make them seek khul, so as to get back the property they gave them.'
' All this does not mean that khula by mutual arrangement is not lawful, for as stated in Hedaya, the justification for such khula is in the words of the verse "there is no blame on them two in what she gives up to be free."
16.Secondly, it confers a right and a privilege on the wife to seek dissolution of marriage. Khula is thus a right conferred on the wife. In the prior verse 2.228 the Holy Qur'an itself mentions "women have rights against men similar to those that met have against them, according to the well-known rules of equity". The opinion of Allam Ibne Rushud that khula is a right of the wife has already been cited. Ameer Ali in his book "Muhammadan Law", Chapter 6, Volume II, at page 466, of 1965 Edition has emphasized that previous to Islamic Legislation the wives had no right to claim dissolution of marriage on any ground whatsoever, and as a rule neither the Hebrews nor the pre-Islamic Arabs recognized the right of divorce for women, but the Qur'an (meaning verse 2:229) allowed them this privilege. Mian Sir Abdur Rashid, Retired Chief Justice of Pakistan, as Chairman of the Commission on Marriage Laws, has, in his report, reached the conclusion that the consensus of opinion is that Islam has granted a right of khula to the women, if she foregoes the mehar or a part of it, if it is demanded by the husband. Maulana Muhammad Ali in his book 'Religion of Islam' states that the rights of the wife to claim divorce is not only recognized by the Holy Qur'an and Hadith, but also in fiqh. The view stated in Aziz Ahmed's Muslim Law at page 235 also is that the Court has the power to grant khula if it is so moved by the wife. Kaikaus, J. also relied on a similar opinion of a living Author, Maulana Adul Maudoodi in his book `Haquq-uz-Zaujain', and though the latter's views on questions of Muslim Law, are entitled to respect, his opinion is not so weighty as of those, who are no more amongst us, as the possibility of a change is his opinion cannot be ruled out. Al-Khafif in eifrit-1-173&,)13) strongly supports the right of the wife to khula when discord between the spouses is established. The right is not, however, an absolute right by which the* wife can herself dissolve the marriage, but is a controlled right. The success of her right depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God, this being the rule of decision provided for his guidance.
17.Thirdly, the verse by making it not lawful for the husband, where he pronounces a talaq to take back anything from the wife and permitting I where she seeks khul, indicates that talaq is in a category different from khula. There is a clear distinction between the two, for khula, is the right of the wife, and talaq is the right of the husband. A talaq is pronounced by the husband on his own, but khula under the verse is sought by the wife, and is effected by the order of the Qazi for a consideration to be paid by her. The nature and the character of the talaq and khula are different, though their effect may be the same, namely, dissolution of the marriage tie, but it will be shown latter that their respective effects are even different, and khula effects a issolution of marriage and not a talaq. In case of Kh la by mutual agreement, a talaq is usually pronounced by the husband, but this is pronounced to effect a dissolution of the marriage tie, and though it is in the form of a talaq, what is brought about is in effect a khula. Khula is not the same thing as talaq and the two- cannot be equated.
18.Fourthly, as the verse confers a right on women to seek dissolution of marriage, names the Qazi as a Judge of the cause and provides the rules of decision, it virtually adds a ground for dissolution of marriage, and thus authorities the Qazi to dissolve the marriage in appropriate cases, even without or against the will of the husband. When it confers a right to sue on women and provides a forum and a rule for dissolution of marriage, it is the Qazi and not one of the parties to the cause, who can have the authority to decide the cause, for otherwise, the reference of the cause to him, serves no purpose and the verse has no objective. If the husband's consent is necessary, the verse has no efficacy or usefulness as a right conferred on women.
19.Obviously therefore, the dissolution cannot rest on the consent of the husband, but must depend on the order of the Qazi. When he has the power to order dissolution of marriage and to enforce his decision in cases of li'an, ila and inin and where the husband becomes Mafqood-ul- Khabar (absent without news) even without and against the consent of the husband as is supported by Hedaya, Raddull Mukhtar, Ahkamul-Qur'an and jasas, and when dissolution can take effect without his pronouncing a talaq, the Qazi must have the power to dissolve the marriage by khula also, independent of the husband's consent and his pronouncing a talaq. Ibne Hazan in "Al-Mohalla" supports the Qazi's right to effect separation by khula after efforts at reconciliation have failed.
20.The verse is thus, in particular, a rule of decision in cases where reference to the Qazi is necessitated by the refusal of the husband to divorce his wife and in such cases dissolution is by the order of the Qazi and is not dependent on the consent of the husband or on his pronouncing a talaq. There are no words in the verse indicating that the consent of or talaq by the husband is necessary for khula. 21.The recorded traditions of khula by the Holy Prophet and the Caliphs lend strong support to the above conclusions. The classical instance of khula is that of the wife of Sabit bin Qais to be found in various collections of Ahadith including Bukhari, Tirmizi, Abu Daud, Nisai and lbne Maja, but there are two versions, one referring to jamila and of the other to Habiba. Some Commentators say that they relate to two different wives of the same Sabit. The instance of Jamila, as stated in Mishkat-ul- Mussabih, (volume II, page 703) is that Jamila went to the Holy Prophet and said that she did not blame her husband Sabit bin Qais about his character or piety, but she feared "heresy in Islam". The Holy Prophet asked her if she was prepared to return the garden given to her as dower, and on her replying " yes, Oh Prophet of God and even more", the prophet said: " No more but you return the garden that he gave you". She agreed and the Prophet said to Sabit: "Take the garden and divorce her". According to another version in Bukhari, when she agreed to return the garden, the Prophet ordered Sabit and he separated her. The other traditions of Habiba, as stated by Imam Malik Holy and Abu Daud, is that one day early in the morning, when the Holy Prophet came out of his house, he found Habiba standing there. He enquired from her what the matter was. She said: I and Sabit can never pull on together." When Sabit appeared, the Holy Prophet said: "This is Habiba daughter of Sahel. She has stated what God wished she should state." Habiba said: "Oh Prophet of God, let Sabit take from me whatever he has given me, for that is all with me." The Holy Prophet ordered Sabit to take back what he had given her, and to release her. In some versions the words used by him are mentioned as "khale sabilaha" and in others "faiqha", which both mean "divorce her". About this very instance, there is another version reported by Abu Daud and Ibne Gharir as coming from Hazrat Ayesha, stating that Sabit had beaten Habiba and broken her bone, but it is clear enough that she made no complaint on this score, and demanded dissolution of her marriage on account of her aversion for his ugliness. The case is one, therefore, of khula in which there was an order of separate by the Holy Prophet.
22.In the days of the Holy Prophet, as reported by Ibne Abbas in Mishkat, Volume II, page 702, Barirah was married to Mughis, who was intensely in love with \ her and used to roam, about the lands of Madina, weeping and crying in quest of her. One day the Holy Prophet expressed a wish to her that she should go back to her husband. "Is this an order" asked Barirah, and as the Holy Prophet said: "No, I am only trying to intercede", Barirah did not go back to her husband. This instance has been used in Mst. Saeeda Khanam v. Muhammad Sami as implying that as the Holy Prophet did not forced Barirah to go back to her husband, he was not like to force Sabit bin Qais to divorce his wife. With the greatest respect, it appears to me that this instance instead of reflecting adversely on the efficacy of the cases of Jamila and Habiba, as instances of khula under the orders of the Holy Prophet, enhances their value. The difference between those cases and the case of Barirah is that in those cases the wives approached the Holy Prophet, demanding a dissolution of their marriage, while there was no such demand by Barirah, and the Holy Prophet decided the cases referred to him as head of the State of Islam, and ordered the husband to release them on restoration of benefits conferred. Thus, khula was decreed by the Holy Prophet on the ground that the wives having developed intense hatred for their husband, it had become impossible for them to live with him and to perform their marital obligations.. No clear proof can be had of Qazi's'power and authority to dissolve a marriage in appropriate case by khula. In the case of Barirah, there being no cause before him as a Qazi or a Judge, he gave no order and merely tendered an advice.
Her instance also proves that the Holy Prophet was not in favour of forcing an unwilling wife to live with her husband, where there is fixed aversion.
23.The two instances of the days of Khulafa-i-Rashidin cited by Kaikaus, J., in Mst. Bilqees Fatima v. Najam-ul-Ikram Qureshi, are these:- (1)A woman alongwith her husband appeared before Hazrat Umar, a companion of the Holy Prophet, wanting a divorce, and though he advised her to live with her husband, she refused. The Caliph shut her up in a dungeon, full of refuse, and when, after being kept there for three days, she was brought before him, asked her how she had fared. She replied: "I swear by God, I have never passed more peaceful nights." This answer is clearly indicative of what misery and torture her life had become with her husband. At this, Hazrat Umar said to the husband: "Giver her khula even if it be in lieu of her earrings." (kashf-ul-ghuma)
(2)Another instance is of the days of Hazrat Usman, companion of Holy Prophet. This is the case of Rabi, daughter of Maooz. When she approached him for separation from her husband, Hazrat Umar ordered her husband to take al that she had and to grant her a divorce.
24.If in each of these cases, the Holy Prophet and the Caliphs, in ordering dissolution, directed the husband to pronounce a talaq, this was the form in which it was decreed, but from the form of the order it cannot reasonably be argued that pronouncement of a talaq by the husband is a necessary condition of khula, though it could have been urged that the Courts should follow the same form in making the order. So long as the order was made by the Holy Prophet and the Caliphs in exercise of the authority of the State or Judge, the form of the order is not destructive of the source or substance of the authority of the Qazi, nor makes the pronouncement of talaq a necessary condition of khula. The question of the form in which the order should be made by the Courts is not one of substance and is not, in any case, of any particular importance, in the instant case, as the Courts have power, by their own authority, to dissolve a marriage on the ground stated in Section 2 of the Dissolution of Muslim Marriages Act, VIII of 1939, and if they were to order khula under sub-section (IX), a talaq by the husband is not necessary.
25.The word "khula" literally means to put off, as a man is said to khula his garment, when he puts it off. Verse 187, Chapter II of the Holy Qur'an recites "You are garment or apparel for them and they are garment for you", meaning that the husband is a garment for the wife and vice versa, "khula", therefore, should mean the putting off or doffing of the clock of marriage. According to the Kifaya, Volume II, page 278, "khula" means to put off, as a man is said to khula his garment, when he puts it off. According to Durrul Mukhtar (at page 256), it means in law "demission or laying down by a husband of his right and authority over his wife for an exchange to take effect on her acceptance by means of the words khula, and it is some time validly effected by the words of sale and purchase. Its condition is that of talaq or repudiation, and its effect one irrevocable repudiation".
According to Hedaya, (page 112 of Hamilton's Translation by Grady), relied upon by the learned counsel for the respondent, "khula" signifies an agreement between the spouses for dissolving a connubial connection in lieu of a compensation by the wife to the husband out of her property. The reason stated in it in justification of such khula is that whenever enmity takes place between the husband and wife and they both see reason to apprehend that the ends of marriage are not likely to be answered by a continuance of their union, the woman need not scruple to release herself from the power of her husband, by offering such a compensation, as may induce him to liberate her, because the word of God says: "No crime is imputed to the wife or her husband, respecting the matter in lieu of which she hath released herself'-- (these words are from verse 2:229), that is to say, there is no crime in the husband's accepting such compensation, nor in the wife's giving it". The discussion Durrul Mukhtar, Hidaya, the relevant Chapter in Fatawa-i-Alamgiri, Volume II, in which a large number of authorities, a'ima and their disciples are quoted as to the manner in which dissolution of marriage by khula takes place, the consideration for khula, its quantum,. the validity of consideration, and rights which flow from such a divorce impart the impression that divorce by khula is an act of the husband, and not a unilateral exercise of a right by the wife. It is also a necessary condition of khula that a desire for separation should emanate from the wife In Mst.
Saeeda Khanam v. Muhammad Sami, the full bench of the Lahore High Court following the above, defined the khula as dissolution of a marriage by agreement between the parties for a consideration paid or to be paid by the wife to the husband. The emphasis in the above opinions of the jurists and commentators on mutual agreement between the spouses indicates the category of cases to which they relate. These are cases of khula without reference to a Qazi or Court, where without the consent of the husband and his pronouncing a talaq, dissolution of marriage tie is not possible. It is these considerations which provide the reasons for their opinions that khula is the act of the husband, and it cannot be effected without his pronouncing talaq.
26.There are thus two classes of cases of khula:
(1) by mutual agreement, and (2) by order of Qazi or Court, where dissolution of marl 'age takes place by the husband's pronouncing a talaq in the first class of cases, and by the order of the Qazi or the Court in the second. Sanction for khula under the orders of the Qazi is to be found in the express words of verse 2:229 of the Holy Qur'an which is the word of God. Cases of khula by mutual agreement do not strictly fall under the terms of the verse itself, but what is so effected is also khula and justification for such cases has been found by the Jurists by a process of reasoning and deduction from the words of the verse, referred to in Hidaya and mentioned above, or from the contract between the parties. The principle so deduced amply justifies the conclusion drawn by the Jurists that khula by mutual agreement is permitted in Islam, but the concept of khula derived from instances of mutual agreement should not in any event, be used to confuse the issue, and made to bear on cases of khula under the orders of the Qazi which are expressly covered by the verse of the Holy Qur'an."
' In presence of the clear principles of law enunciated by this Court as well as per apex Court of Pakistan, no further deliberation is required. Therefore, it is declared that the observation of the Trial Court on this point is not according to law which stands recalled.
10.For the reasons stated hereinabove, as we have drawn the conclusion that the appellant has succeeded in proving the fact that the ornaments are in possession of the defendant-respondent, therefore, the impugned judgment and decree of the Shariat Court is hereby set aside and the decree for dissolution of marriage granted to the plaintiff-appellant is maintained with the modification that the marriage on the basis of khula for consideration of the dower amount paid in shape of ornaments which are already in possession of the defendant-respondent, hence, nothing has to be returned by the appellant.
' The appeal is accepted in the manner indicated above.