1. ' MUHAMMAD MUSHTAQ CHAUDHARY, J.--- The above titled appeal has been preferred against the decision and decrees of Judge Family Court Kotli dated 31-1-2013, whereby a decree for dissolution of marriage on basis of 'Khula' was passed in favour of Mst. Fozia Raheem, respondent No,1, and the suit filed by Waseem Ahmad Rathore, appellant, for restitution of conjugal rights was dismissed.
2. ' The facts forming the background of instant appeal are that Mst. Fozia Raheem, respondent, herein, filed a suit for dissolution of her marriage before Judge Family Court Kotli on 25-7-2011 alleging therein that her marriage was solemnized with Waseem Ahmad Rathore on 8-2-2008 in lieu of prompt dower in form of ornaments weighing 17 tolas. She averred that after few days of the marriage, the behaviour of Waseem Ahmad Rathore, her husband, became cruel because he was being instigated by his sister, due to which he tortured her mentally and physically. At last on 9-4- 2008 after two months of the marriage, Waseem Ahmad Rathore gave her severe beating, snatched away entire ornaments and ousted her from the house. She has been living with her parents for the last three years but during this period the appellant neither performed marital obligations nor paid her any maintenance allowance. She further averred that due to misconduct of appellant, she has developed severe hatred against him, thus, it has become difficult for her to live with him as wife within the limits ordained by Almighty Allah; therefore, in alternative she is entitled to obtain a decree for dissolution of marriage on the ground of 'Khula'. She lastly prayed that a decree for dissolution of marriage may be passed in her favour on the grounds of cruelty, non-performance of marital obligations, non-payment of maintenance allowance and in alternative on the ground of 'Khula'.
3. ' Waseem Ahmad Rathore, appellant herein, resisted the suit by filing his written statement on 10-9- 2011 and contended that he went England on 28-2-2008 and respondent also came with him upto Islamabad to see off him and at that time she had worn entire ornaments. He further averred that on 9-4-2008 he was out of the country; therefore, the allegations of giving beating to respondent, snatching away ornaments from her and ousting her from the house are totally false. He lastly craved for dismissal of the suit filed by respondent for dissolution of marriage.
4. ' During pendency of aforesaid suit, Waseem Ahmad Rathore, appellant, also filed a suit for restitution of conjugal rights before Judge Family Court Kotli on 26-9-2011, which was resisted by Mst. Fozia Raheem through written statement on 20-10-2011 stating therein that she was beaten by two sisters of Waseem Ahmad Rathore and was locked in lower room of the house. She also averred that entire ornaments are in possession of plaintiff's sister.
5. ' Both the suits were consolidated on 20-10-2011.
6. ' On 10-10-2011, Fozia Raheem, respondent, filed an application for amendment in the plaint to the extent that the name of Waseem Ahmad Rathore was inadvertently incorporated in paragraph three of the plaint regarding snatching away ornaments, whereas his brother Nadeem, sister Farah Naz and maternal grandmother after giving her severe beating and snatching away ornaments ousted her from the house. The objections were summoned from other side, which were filed on 20-10-2011 and after hearing arguments the application was accepted kit filing an amended suit vide order dated 5-11-2011. On 16-11-2011, the amended suit was filed, thereupon Waseem Ahmad Rathore was ordered to file his amended written statement, which was filed on 12424611.
7. ' Thereafter in the light of pleadings of the parties the following issues were framed on 16-12-2011:-1
1. Whether plaintiff (Fozia Raheem) is entitled to obtain a decree for dissolution of marriage on the ground of cruelty, non- performance of marital obligations and non-payment of maintenance allowance? (OPP)
2. In case issue No,1 is not proved, whether plaintiff (Fozia Raheem) is entitled to receive a decree for dissolution of marriage on 'Khula', if so then how and on what conditions? (OPP)
8. 3 Whether in cross suit, plaintiff (Waseem Ahmad Rathore) is entitled to obtain a decree for restitution of conjugal rights? (OPP in cross-suit)
9. ' After framing issues, the parties were ordered to produce their evidence. In support of its case, Mst.
10. Fozia Raheem appeared in the witness-box and produced Muhammad Rasheed, Muhammad Tufail, and. Abdur Raheem Butt as her witnesses. On the other hand, Waseem Ahmad Rathore appeared in the witness box and also produced Muhammad Ameen, Muhammad Jahangir and Nadeem Ahmad Rathore as his witnesses.
11. ' The learned Judge Family Court, after conclusion of the trial and hearing arguments of the learned Advocates for the parties passed a decree for dissolution of marriage in consideration for 'Khula' Rs,4000 in favour of Mst. Fozia Raheem, whereas the suit filed by Waseem Ahmad Rathore, appellant, for restitution of conjugal rights was dismissed vide decision and decrees dated 31-1- 2013; hence, this appeal.
12. ' Iftikhar Hussain Butt, the learned counsel for appellant vigorously contended that the learned Judge Family Court while passing the impugned decision and decree committed grave illegality.
13. The learned counsel submitted that the Court below misread the evidence of the parties and not appreciated the same in its true perspective. The learned counsel stressed on the point that the Court below committed grave error while declaring that the ornaments were not demanded by the appellant in the written statement, whereas in paragraph 5 of the amended written statement, the appellant has clearly taken the stance that 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 pointed out that the amended written statement was filed by order of the Court in reply to the amended suit filed by the respondent; therefore,' it would be considered as part of the original suit, but the Court beam failed to consider this aspect of the case and wrongly declared that the ornaments were not demanded by the appellant. The learned counsel argued with vehemence that the Court below also committed 'illegality in interpretation of Qanun-e-Shahadat while mentioning in the judgment that the onus to prove the factum of snatching away ornaments was on ,the shoulders of appellant-husband, whereas it is celebrated principle of law that one who asserts must prove; therefore, it was incumbent upon respondent No,1 to prove her claim that the ornaments were snatched away from her, but she failed to do so. The learned counsel agitated that there are a lot of contradictions in the evidence of respondent's witnesses regarding snatching away ornaments and this fact has also been admitted by the Family Court in its judgment, but wrongly decided the case in favour of respondent. The learned counsel further agitated that the Court below did not mention the reasons for fixing Rs,4000 as consideration for 'Khula', whereas the aforesaid amount does not find place in the 'Nikahnama' as dower amount; therefore, a serious illegality was committed by Family Court. 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. The learned counsel submitted that the appellant loves respondent No,1 and wants to populate her; therefore, by setting aside the impugned decision, a decree for restitution of conjugal rights may be passed in favour of the appellant and if it's not possible, then a decree for dissolution of marriage may be passed by returning the ornaments weighing 17 tolas to the appellant. The learned Counsel cited 2005 SCR 37 and 2011 SCR 371 in support of his arguments.
14. ' Conversely, Malik Muhammad Saleem Khan, the learned counsel for the appellant zealously contended that the appellant miserably failed to prove his case therefore, the. Court below passed the decree for dissolution of marriage in a legal manner, which may not be set-aside. The learned counsel submitted that the appellant's brother, sister and maternal grandmother gave severe beating to respondent No,1 and after snatching away entire ornaments ousted her from the house.
15. The learned counsel submitted that the amended suit was filed only to the extent of paragraph No,3, so the appellant was not at all entitled to demand for returning the ornaments in his amended written statement, in case of dissolution of marriage; therefore, the Court below correctly passed the decree for dissolution of marriage. 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 accurately 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 his arguments, the learned counsel cited 2005 M LD 1822 and PLD 2006 Kar.
16. 563.
17. ' In the light of arguments addressed at Bar, I have gone through the record with utmost care.
18. ' As discussed in earlier part of the judgment that Mst. Fozia Raheem, respondent, herein, filed a suit for dissolution of marriage whereas Waseem Ahmad Rathore filed cross suit for restitution of conjugal rights before Judge Family Court Kotli. The learned Judge Family Court passed a decree for dissolution of marriage in consideration for 'Khula' Rs,4000 in favour of Mst. Fozia Raheem, whereas the suit filed by appellant for restitution of conjugal rights was dismissed.
19. ' Now it is to be determined whether learned Judge Family Court has passed the impugned decree in a legal fashion or not? In order to arrive at a just conclusion of the matter, I have gone through the evidence of the parties.
20. ' A thorough perusal of evidence of the parties reveals that Mst. Fozia Raheem could not prove her suit before Judge Family Court regarding issue No,1 i.e,, Whether plaintiff (Fozia Raheem) is entitled to obtain a decree for dissolution of marriage on the ground of cruelty, non performance of marital obligations and non-payment of maintenance allowance, because record shows that she has herself admitted by filing amended plaint and written statement in cross suit that her husband was out of the country when she was ousted from the house. In this manner, she could not prove aforesaid grounds against her husband, appellant. Therefore, the learned Judge Family Court rightly appreciated the evidence to the extent of issue No,1 and correctly decided the same against, Mst. Fozia Raheem, respondent No,l.
21. ' I will now deal with this contention of the learned counsel for the appellant that the Court below did not mention the reasons for fixing Rs,4000 as consideration for 'Khula' and illegally interpreted the law while mentioning in the judgment that the onus to prove the factum of snatching away ornaments was on the shoulders of appellant-husband. I have considered this argument of the learned counsel and perused the impugned judgment, which shows that the learned Judge Family Court mentioned in the impugned judgment that it was responsibility of the defendant-husband to prove this fact that the ornaments were not snatched away by defendant or his sister and brother.
22. The above mentioned portion of the impugned judgment clearly indicates that the learned Judge Family Court has wrongly put responsibility on the shoulders of defendant-husband. In this view of the matter, I would agree to this contention of the learned Counsel for the appellant that one who asserts must prove; therefore, it was incumbent upon respondent No,1 to prove her claim that the ornaments were snatched away from her by her husband or his sister and brother, but she miserably failed to do so.
23. ' I am also cognizant of the fact that a decree for dissolution of marriage can be passed without consideration of '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, but in the present case it is admitted by respondent No,1 that after two months of the marriage, when her husband-appellant was out of the country, she left the house. It is also admitted on the record that her husband went out of the country on 28-2-2008 and returned on 9-4-2008, and tried to populate the respondent No,1 but she kept herself deserted in the house of her parents for about three years and lastly filed a suit for dissolution of marriage on 25-7-2011, which means that she did not live with her husband continuously. The record shows that respondent No,1 wife could not prove all grounds raised for obtaining a decree for dissolution of marriage, including the ground of snatching away ornaments against the appellant-husband or his sister or brother and she was granted a decree on ground of 'Khula' due to severe hatred against her husband-appellant. Therefore, a careful perusal of record does not show any fault on the part of appellant-husband. In such state of affairs, it was incumbent upon the Court below to pounder over this aspect of the case and restores the property/dower received by the wife. My aforesaid view finds support from a case reported as Mst.
24. Balqis Fatima v. Najm-ulIkram 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."
25. ' Therefore, the above mentioned facts and circumstances of the case indicate that in case of dissolution of marriage on 'Khula', the appellant-husband was entitled to receive entire dower amount from respondent No,1 instead of Rs,4000, especially when this fact has not been proved on the part of respondent No,1 that by snatching away ornaments she was ousted from the house, because in amended suit she stated that appellant's brother Nadeem, sister Farah Naz and maternal grandmother snatched away ornaments and after giving severe beating ousted her from the house, whereas she stated in the written statement, filed in the cross suit of appellant- husband for restitution of conjugal rights, that two sisters of appellant gave her beating, but she does not mention the name of appellant's brother Nadeem and his maternal grandmother and she only mentioned in the last portion of her written statement that appellant's sister took whole ornaments from her. In this manner, she took aforesaid divergent stands about snatching away ornaments, which are not reliable in the eye of law. Moreover, she did not even bother to array party to the appellant's sister, brother and maternal grandmother in the suit, against whom the allegation of snatching away ornaments was levelled through amended plaint. Therefore, she has miserably failed to prove her claim.
26. ' As far as the contention of the learned counsel for the respondents that the amended suit was filed only to the extent of paragraph No,3 so the appellant was not at all entitled to demand for returning the ornaments in his amended written statement, in case of dissolution of marriage; therefore, the Court below correctly passed the decree for dissolution of marriage, is concerned. In this regard the learned Counsel placed reliance upon a case law reported in 2005 M LD 1822 Lahore.
27. A perusal of the same shows that the husband neither mentioned in written statement nor in his statement about returning the benefits from wife, but in the present case the appellant-husband specifically mentioned about the return of dower in his amended written statement, in case of dissolution of marriage. Even otherwise, when wife demands 'Khula' as of right and the judge apprehends that parties will not observe the limits ordained by Almighty Allah, then the marriage has to be dissolved on restoration of what she received in consideration of marriage. The same view was observed in Mst. Balqis Fatima's case (PLD 1959 (W.P.) Lahore 566), quoted above, while replying to a question Whether under the Muslim Law the wife is entitled to 'Khula' as of right? The answer was given in the following manner:--- "The answer to the question referred is that the wife is entitled to a dissolution of marriage on restoration of what she received in consideration of marriage if the judge apprehends that parties will not observe the limits of God."
28. ' Therefore, the contention raised by the learned counsel for the respondents is not tenable.
29. 'However, I find force in this contention of the learned counsel for the respondents that 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. This contention of the learned counsel is also supported by Mst. Fozia Raheem, because she has clearly mentioned in her plaint that she had developed severe hatred against her husband and cannot live with him in the limits ordained by Almighty Allah. Therefore, the learned Judge Family Court instead of pushing the spouses in a hateful union rightly dissolved their marriage on the basis of 'Khula', but he failed to fix Rs,4000, as consideration for 'khula', because it is celebrated principle of law that when a wife expresses that she has developed aversion against her husband and will not fulfil the limits ordained by Almighty Allah, then the marriage between the spouses is dissolved by the Courts normally on the condition of repayment of dower amount received by the wife. The aforesaid view finds support from a case titled as Muhammad Khalil v. Shazia lqbal and 2 others (2006 CLC 1033) wherein has, been held as under:--- "The dissolution on the basis of 'Khula' is the power vested in the Court to be exercised in the cases where it is found that the spouses cannot live together and cannot maintain the limits ordained by the Almighty Allah. The marriage in such circumstances is dissolved by the Court normally on the condition of repayment of the dower amount received by the wife."
30. ' Now, keeping in view the above mentioned facts and circumstances of the case, it will be pertinent to determine the consideration amount for 'Khula'. A perusal of 'Nikahnama' shows that prompt dower was paid to respondent. No,1 at the time of marriage in form of gold ornaments weighing 16 tolas, 11 Mashas and 7 Ratti worth Rs,3,71,600. As the form of 'Nikahnama' reveals that a specific amount of ornaments Rs,3,71,600 has been incorporated in: its serial No,4; therefore, it will be proper to dissolve marriage of the spouses in consideration for 'Khula' Rs,3,71,600, instead of Rs,4000, and it is ordered accordingly.
31. ' The epitome of above discussion is that I partly accept this appeal and dissolve the marriage of the spouses on the ground of 'Khula' with the modification that Mst. Fozia Raheem, respondent No,1, shall be entitled to obtain a decree for dissolution of marriage on the condition of repayment of entire dower amount Rs,3,71,600, as consideration for `Khula', to Waseem Ahmad Rathore, appellant. No order as to the costs.