1. ' This second appeal has been filed against the judgment and decree passed by the learned District Judge Hyderabad setting aside the judgment and decree passed by the Civil Judge in a suit filed by the appellant for recovery of Rs, 5,000 being the dower debt.
2. ' The appellant was married to the respondent on 4th November, 1961 but it seems that from the very inception of the marriage differences arose between the parties and ultimately in 1962 the appellant filed a suit for dissolution of marriage and recovery of dowery amounting to Rs, 2,600.
3. The main ground for the suit for dissolution of marriage was cruelty, respondent's failure to maintain the appellant and fulfil the marital obligations. The respondent put up the -defence that there was no valid marriage between the parties as the marriage was brought about by fraud. It was alleged that before the marriage a girl of 18 years was shown to the family members of the respondent but at the time of marriage the appellant was wedded who according to the respondent is infirm, sick and an old lady of about 48 years. The respondent also pleaded that the marriage has not been consumated between the parties although it was admitted that they resided in the house of the respondent together for about 16 days. After considering the evidence produced by the parties the learned Civil Judge granted decree for dissolution of marriage by way of Khula and further ordered that as the appellant had left with the respondent dowery valued at Rs, 2,500 given to the appellant by her brother, the same should be returned by the respondent.
4. However, as the dowery of Rs, 1,600 given by the respondent was also left in the house of the respondent the appellant was not required -to pay any amount to the respondent and finally it was oredered as follows : "I, therefore, decide that the plaintiff is entitled to claim. Divorce by Khula and grant her the decree of dissolution of marriage without payment of any consideration."
5. ' This judgment was not challenged by the respondent.
6. ' After sometime the appellant filed a suit for recovery of Rs, 5,000 being the dower debt. It is an admitted position that in Nikahnama the deferred dower was fixed at Rs, 5,000. The respondent in his defence pleaded the same facts he had submitted in the earlier suit and further stated that as the divorce has been granted by way of Khula he is not liable to pay the dower debt. The learned trial Court on consideration of the evidence decreed the suit which has been set aside by the learned Ist Appellate Court mainly on the ground that while granting Khula the wife is required to return all benefits and the dower being one of the benefits it was liable to be returned and, therefore, no decree for dower debt can be passed.
7. ' Mr. Abdul Matin the learned counsel for the appellant has challenged the judgment and decree passed by the first appellate Court and has mainly contended that the divorce was granted by the Court on terms and conditions mentioned therein which has become final and, therefore, it was not possible to put any further condition by the learned appellate Court. It is an admitted position that the marriage was dissolved by judgment and decree passed by the Civil Judge, which was not challenged and has become final. Under Muslim Law Khula is granted by the Court. It is at the time of granting a decree for Khula the Court is empowered to put terms and conditions on the parties and order the wife to return all such benefits which in the opinion of the Court the wife has received and which in the facts and circumstances of the case it is just to return to the husband. The law relating to Khula has exhaustively been dealt with in various judgments of our Superior Courts, where all aspects including the present controversy have been authoritatively expounded. Suffice to refer to PLD 1959 Lah. 565;PLD 1967 ; SC 97 PLD 1972 Kar. 540 ; PLD 1975 Lah. 615 766 ; PLD 1977 Kar. 855 (5) ; PLD 1978 Lah. 1109 ; PLD 1979 Lah. 414 ; PLD 1981 Lah. 116 and 1981 CLC 68. In the case of Mst. Bilqis Fatima v. Najmul Ikarim Qureshi (1) the following observations were made which may be relevant for the present controversy : "Let me review the argument in brief and state my conclusions. The only proper inter pretation of the verse relating to Khula is that Khula depends on the order of the judge and not on the will of the husband. That is the implication of the words "If you fear" being addressed to the judge, for the head of the state. The judge ought to grant Khula` if he finds that "they will not observe the limits of God". Contemporary opinion is unanimous on this interpretation. As regards the verse relating to Shiqarq the clear implication of "arbiter" is that there is power to order separation and the verse does not contemplate an attempt at reconciliation alone. So far as the power of the Qazi is concerned, there does not appear to be any dispute that he will be able to separate the parties in case of Shiqarq. This would appear from the quotation from the Umdatul Qari. 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
(1) PLD 1959 Lab. 566 ' suffering from tuberclosis and above all preparing for second marriage. These facts clearly indicate where the default lies. Such facts have been and should be takan into consideration while granting restitution and return of benefits. It is, therefore, not correct that in cases of Khula ipso facto the wife should return all benefits. This has to be determined in the facts and circumstances of each case and balance has to be maintained. If a wife seeks Khula without pointing out to any default of the husband and the Court considers it proper to grant a decree for Khula then the wife should be ordered to return all the benefits received by her and also forego such rights under which she can claim any benefit. However, while passing such an order the Court should take into consideration the reciprocal benefits received by the parties.
8. ' In proceedings for dissolution of marriage the respondent had not made any claim that the appellant should forego her right to recover the dower from the respondent. Neither any claim of this nature was made nor any condition was put in the decree granting Khula that the appellant will forego her right to recover dower from the respondent. The Court had granted Khula on condition of return of such benefits which are mentioned in the judgment itself. The learned counsel for the respondent has contended that as the dower was deferred no claim could have been made in those proceedings and further that the trial Court while granting Khula completedly ignored the question of dower. The fact that the dower was deferred does not mean that it cannot be considered while granting Khula. All benefits conferred upon the wife should be taken into consideration for adjustment and restitution. It is, therefore, obligatory on the Courts granting Khula that whether the dower is deferred or prompt it should be taken into consideration. The contention of learned counsel for the respondent is not borne out from the record as from the judgment quoted above it is clear that the learned Court granting Khula was conscious of the fact that there could be a claim for deferred dower of Rs, 5,000. In fact the Court observed that the respondent "had made funny statement to escape liability of dower" and that he (respondent) would have willingly given up the plaintiff (appellant) if she had relinquished the dower amount". It is conclusively proved that the learned Judge was conscious of this fact and at no stage the appellant had relinquished her right to claim dower from the respondent. Even in this background the Court did not put a condition in the judgment that she should forego the right to claim dower before granting Khula in her favour. During the trial no claim was made by the respondent to this effect. Reference is made to the case of Abdul Majid v. Razia Bibi and another (1) where it was held that "one of the conditions for grant of Khula as enjoined by law of Islam and as held by Supreme Court of Pakistan is that if the wife has obtained any tangible returnable benefits from the husbond, she should be made to return the same as a condition precedent on grant of Khula in case the husband does not forego the same but asks for their return". It was further held that "If a husband during the trial does not make any claim with regard to return of benefits despite the knowledge that the Courts have ruled that he can claim the return this conduct would show that he has not conferred any benefit or he would not seek the return thereof." While referring to the case of Mst.
9. Khurshid Bibi it was further observed that "a demand in the nature of insistance from the side of the husband
(1) PLD 1975 Lah. 766 ' is a condition precedent for the learned trial Judge directing the return of gifts from the wife to him as a condition of Khula". Applying this principle firstly, the respondent did not make any claim for return of dower nor the appellant had waived her claim for dower and secondly, the decree passed by the Court granting Khula did not put condition that the appellant will forego her right to claim dower and, therefore, the appellant was entitled to recover dower from the respondent.
10. ' In the circumstances, the judgment and decree passed by the learned appellate Court is set aside and the judgment and decree passed by the learned trial Court is maintained. The parties to bear their costs throughout.