' IKRAMULLAH KHAN, J.---By this single judgment, we intend to dispose of both the Writ Petitions bearing Writ Petition No,265-M/2013 and Writ Petition No,558-M/2012, and as both are directed against the common impugned judgment dated 12-10-2012 rendered thereof, by the learned District Judge, Batkhela.
1. Briefly stated facts, necessary for disposal of both the writ petitions are that Mst. Saima Gul, petitioner in Writ Petition No,265-M/2013 (hereinafter as petitioner) and Haider Zaman, petitioner in Writ Petition No, 558-M/2012 (herein after as respondent) had contracted marriage in accordance with the injunction of Islam as ordained by ALLAH AL-MIGHTY, in the year 2002, whereof the dower was fixed as 15 tola gold ornaments, and a land measuring 15 marla, vacant plot situated at Sufaid Dheri, Peshawar through a registered deed dated 4-5-2002, which was produced and marked as Exh.P.W.- 1/1. Petitioner out of the wedlock, has given birth to 3 kids, who are, petitioners too in Writ Petition No,265-M/2013.
2. Petitioner Mst. Saima Gul, herself and being next friend of other minors petitioners instituted a suit there before the learned Family Court at Batkhela in the year 2010 with the following prayers:--
(i) Dissolution of marriage on the ground of cruelty.
(ii) Recovery of dower amounting to 15 tola gold and possession of a vacant plot/landed property measuring 15 marla situated at Peshawar.
(iii) Recovery of maintenance allowance @ Rs, 10,000 for herself and Rs,5000 per child, per month for the past two years and at the same rate in future.
3. The respondent contested the suit and submitted his written statement, whereof categorically refuted all the allegations averred therein the pleadings of the petitioner. However prayed thereof for an order of restitution of conjugal rights.
4. The learned Family Judge framed thereof the respective issues, arising thereout from the divergent pleadings of the parties there to the suit.
5. The learned Family Judge prior to recording of evidence and thereafter on conclusion of the trial, tried its best for reconciliation between the spouses, but without fruitful result and thereupon rendered its judgment in the suit, whereby a decree for 8 tola gold, Rs,5000 per month as maintenance, for minor petitioners since institution of the suit till attaining the age of majority for male minor and till marriage, for female minors petitioners with an annual increase of Rs,20% was awarded thereto. Both the parties went in appeal and on appeal, the judgment of the learned Family Judge was modified to the extent of maintenance, as Rs,1500 per child with annual increase of 5% and also made responsible the respondent to pay Rs,2000 per month to petitioner (wife) since March, 2009.
6. The petitioner and respondent both have challenged the validity and legality of the impugned judgment, by filing their separate respective constitutional petitions, under Article 199 of the Constitution of Islamic Republic of Pakistan, before this Court.
7. Learned counsel for the petitioner argued that, the impugned judgment and decree, passed by learned Family Judge dated 21-2-2012 and that of learned District. Judge dated 12-10-2012, to the extent of reducing the maintenance allowance of minors from Rs,5000 with 20% increase per annum to Rs,1500 with 2% increase per annum, and not granting decree of dissolution to petitioner on ground of cruelty, the finding on issue No, 5 whereas it was held by both the learned Lower Courts that 7 tola gold as dower, was paid to the petitioner is against law, facts and material available on record. It was further contended that, burden of proof was on respondent to prove that he had paid part of the dower to the petitioner but despite the fact that no cogent, reliable and trustworthy evidence was produced by the respondent but even then, both the learned Lower Courts, in utter violation of the established principle of law held that 7 tola gold had been paid to the petitioner, is perverse one. It was also contended that, the findings of the learned Lower Court, that petitioner, had not proved its claim of cruelty upon her by the respondent, had misconstrued, as cruelty does not mean, only physical torture, but includes nonpayment of maintenance, act of destitution and detriment also, but the learned Courts misconstrued the facts in this regard, and illegally had deprived the petitioner of her legal right of dissolution of marriage. At last it was contended that petitioner is entitled to the relief as prayed for in her plaint in toto. Reliance was also placed in this regard on the case of Dr. Fakhr Ud Din v. Mst. Kausar Takreem (PLD 2009 Peshawar 92).
8. On the other hand, the learned counsel who made good its appearance on behalf of the respondent contended, that the impugned judgment is extraneous to the extent of concurrent findings of both the learned Courts that the dower was not paid in its entirety, as the petitioner had herself admitted that at the time of marriage she was given gold ornaments. It was further contended that as the cruelty had not been proved, assigned to the respondent while the petitioner, without any legal excuse had left the house of the respondent, adopted to live with her parents, failed to perform the matrimonial obligation, could not be held entitled for the maintenance allowance. It was also contended that as the respondent is ready to maintain his children, could not be burden to pay an extra amount to the petitioners, being deprived of their love and had left him in a permanent mental torture. At last, argued with vehemence that both the learned Courts, failed to discharge their obligations, conferred upon it thereunder the provisions of the West Pakistan Family Courts Act, 1964, contained in section 10(4) of the Family Courts Act, 1964, which has rendered the impugned judgment illegal, without jurisdiction and void ab initio and prayed for quashment of both the impugned judgments.
9. We anxiously considered the arguments of the learned counsel and carefully gone through the available record annexed hereto with the petitions.
10. It is evident from the perusal of pleadings of the petitioner, that she has claimed dissolution of her marriage on the ground of cruelty, which is one of the recognized ground for dissolution of marriage, provided thereunder the Dissolution of Muslim Marriages Act, 1939, but this Act has not been extended to the PATA, strictly in accordance with the provisions contained thereunder clause-3 of Article-247 of the Constitution of Pakistan, 1973, it was the reason, that no such issue was casted by the learned Family Judge, however issue No,7 was framed in the manner as:-- "Whether the plaintiff No,1 (herein the petitioner) is entitled for the decree of dissolution of marriage?"
' As the respondent, in its written statement had prayed for the relief of restitution of conjugal rights, as such issue No, 8 was framed as:-- "Whether the defendant (herein as respondent) is entitled for decree of restitution of conjugal rights?"
11. After discussing the entire evidence pro and contra produced by both the parties, the learned Family Judge arrived at the conclusion that all the witnesses produced by the petitioner including petitioner herself had failed to substantiate its plea of cruelty on the part of respondent, hence, decided the issue No,7 in negative while the issue No, 8 in positive.
12. The above findings were affirmed by the learned Appellate Court.
13. The question raised in this Court, by the respondent is that whether the petitioner would be entitled for maintenance allowance, in such circumstances, when petitioner has opted in her own accord to reside therewith her parents along with her minors children.
14. Though the learned Appellate Court had held that as being the legally wedded wife, whereas the matrimonial bond is still intact, the respondent-husband is obliged to pay its maintenance, wherever, she may be residing.
15. As the petitioner is not ready to resettle down with the respondent at any costs, on the premise that the respondent had entered into a 2nd marriage, in such a situation the preposition which had also stressed by the respondent that, in such circumstances, whether the petitioner is entitled to receive the maintenance allowance and the unpaid dower, is a question to be resolved by this Court.
16. To resolve the controversy and the' legal proposition, which had been put before this Court by the learned counsel for the respondent in this regard recourse to the Family Courts Act, 1964 and particularly to the proviso attached to subsection (4) of section 10 is necessary which reads as:--
(4) If no compromise or reconciliation is possible the Court shall frame the issue in the case and fix 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 shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.]
17. But the learned Family Court, with reason best known to him, did not dissolve the marriage between the spouses in accordance with the provisions of the law ibid, on the basis of Khula' and framed issues in the suit.
' No ground of dissolution was available to the petitioner, while the one that of cruelty was not being proved by petitioner.
18. The Dissolution of Muslim Marriages Act, 1939 is not so far applied to the Provincially Administered Trible Areas (thereafter PATA) as well the Muslim Family Laws Ordinance 1961; all the family cases shall be dealt purely under the Mohammadan Law.
19. Though the proviso attached thereto subsection (4) of the Section 10 of the Family Courts Act, 1964 has bound down the Family Courts in case of dissolution on the basis of Khula', to return the Haq Mahar to the husband but, as mentioned hereinabove, this area (PATA) is being governed thereunder a special law, the Shari Nizam-e-Adal Regulations, 2009, whereas paragraph 9 of the regulation reads as:-- "(i) A Qazi or Executive Magistrate shall seek guidance from Quran Majeed, Sunna-e-Nabi (Swallaho Alaihe Wassallam), Ijma and Qiyas for the purpose of procedure and proceedings for conduct and resolution of cases and shall decide the same in accordance with Shariah. While expounding and interpreting the Quran Majeed, Sunna-e-Nabwi (Swallaho Alaihe Wassallam) the Qazi and Executive Magistrate shall follow the established principle of exposition and interpretation of Quran Majeed, Sunnah-e-Nabwi (Swallaho Alaihe Wassallam) and, for this purpose, shall also consider the expositions and opinion of recognized Fiqah of Islam.
' In this context it would be more appropriate to recapitulate the Verse of Holy Qur'an, which governs the matter of Khula':-- "Verse No,229 of Surah-e-BAQARA, the translation of which is; "229:- Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from woman aught of which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either, of them if the woman ransom herself, these are the limits (imposed by) Allah. Transgress them not. For whose transgressed Allah's limits, such are wrongdoers."
20. The term of Khula' is not absolute that the whole, property movable or immovable, given to the wife in case of Khula', shall be restored.
21. In case, both the spouses amicably arrived a settlement; it would be applied or when the matter came before a Court, in such a situations, the Court keeping in view the peculiar circumstances of case, fixed an amount to be returned to the husband, in case the Court arrived at the conclusion that it is not possible for the spouses to live within the limits ordained by Allah AL-Mighty and such an amount, determined by the Court (Qazi) would the ransom amount to be accepted by the husband.
' Reliance be placed on the interpretation of "Tafheem Ul Quran" compiled by Abul Ala Mududi.
In this regard guidance may also be taken from the judgment of this Court Dr. Fakhr Ud Din v. Mst.
Kausar Takreein (PLD 2009 Peshawar 92), whereas it para-29 it had been observed and held as:-- "The cited Verse of the Holy Quran would suggest that the wife has to return some consideration to the husband on seeking dissolution of marriage on the basis of "Khula". It does not command in express words and clear terms that the entire consideration benefits/ Haq Mahr received by the wife has to be repaid, therefore, in our view, in peculiar and exceptional circumstances, the Judge has the authority to determine that the Haq Mehr/consideration as a whole is not to be repaid by the wife but a part of it. Similarly, it can also determine as to what extent the husband can be relieved from the paym ent of dower, to the wife, if not already paid.
22. Some of the consideration, which may be determinable factors for a Court/Judge to fix the ransom for the Khula are;
(i) Whether the wife was disobedient, Nasheza, major contributor in causing strained relations or these causes were attributable to the husband.
(ii) Whether the husband has contracted a 2nd marriage and could not sustain, keep the limits of Allah AL-Mighty as for as the first wife is concerned.
(iii) Whether the wife thereafter divorced, would become a destitute, without appropriate income of her to live a graceful life?
23. It has been proved on record, that the respondent, father is a school teacher and having its own family to lookafter and salary is the only source of its income. The respondent is a simple house woman, in case of dissolution of marriage, has to be burden with a hard life to lead, along with 4 kids.
24. The petitioner has arranged a second marriage, though without the permission of the respondent, but as the Muslim Dissolution of Marriages, Act and Muslim Family Laws Ordinance have not been applied to the PATA, and the respondent could not be granted decree of her dissolution on the ground of 2nd marriage, being she herself, opted to invoked the jurisdiction of the Family Court, established in the PATA, but as from the facts and circumstances of the case, when both the spouses, could not live within the limits of God, as ordained, and no one out of both the spouses, is ready either to divorce or to take Khula', in such circumstances, this Court has left with no other option to partially accept both these Writ Petitions, modify the impugned judgments and decree of learned Lower Courts to the extent that the marriage between the parties shall stand dissolve but on the basis if Khula'. The petitioner (wife) is not entitled to demand further for the 8 tola unpaid, Haq Mahr, outstanding against the respondent (Husband) and likewise the respondent is not entitled to receive back the 7 tola gold, and the one plot/price of land fully described thereof in the dower deed dated 4-5-2002 being already given to the petitioners. Rest of the impugned judgment shall stand intact and the respondent is liable to pay the maintenance allowance @ Rs, 2000 per month from the date of institution of the suit till the expiry of the "Iddat" period for petitioner (wife) while have to pay regularly the maintenance allowance @ Rs,1500/- per month per child at the same terms and conditions as decreed by the learned Lower Appellate Court. All these two Writ Petitions are disposed of in the above mentioned terms.