Ch. Muhammad Ibrahim Zia, J.-- The captioned appeal by leave of the Court is filed against the consolidated judgment and decree of the Shariat Court dated 08.06.2016 through which the appeal filed by the appellant, herein, has been dismissed whereas the counter appeal filed by the respondent has been accepted.
2. The facts in brief are that the respondent, herein, filed three suits; one for dissolution of marriage on the basis of cruelty , non-payment of maintenance allowance and non-performance of matrimonial obligations, second for payment of monthly maintenance allowance and third for recovery of dowry/ornaments before the Judge Family Court on 09.07.2014. The appellant also filed a suit for restitution of conjugal rights. The learned trial Court, after necessary proceedings, vide judgment and decree dated 17.10.2015 dismissed the suits for dissolution of marriage and dowry for want of proof, however , decreed the suit for monthly maintenance allowance to the extent of Rs.3,000/- per month from the date of institution of suit to the date of decree. The suit filed by the appellant was decreed. Against the judgment and decree of the trial Court both the parties filed separate appeals before the Shariat Court which have been disposed of through the impugned consolidated judgment in the following terms:- "...Appeal filed by Raja Gul Hussain is dismissed. The appeal filed by Mst. Azmat Bibi is accepted in the terms that she is entitled to decree for dissolution of marriage on the basis of Khula . Mst. Azmat Bibi shall not claim her decretal amount of maintenance in lieu of decree for dissolution of marriage on the basis of Khula . Decree for restitution of conjugal rights is set-aside and appeal filed by Mst. Azmat Bibi to the extent of dower is dismissed and her suit for dissolution of marriage is decreed for Khula , as mentioned above."
The appellant, feeling aggrieved, filed the instant appeal by leave of the Court.
3. Raja Gul Majeed Khan, Advocate, the learned counsel for the appellant after narration of necessary facts seriously objected to the impugned judgm ent of the Shariat Court on the ground that the same is against the facts, record, evidence and law. The trial Court after proper appreciation of the evidence, conduct of the parties and all other relevant circumstances, decreed the suit for restitution of conjugal rights filed by the appellant. The respondent failed to prove her suits for dissolution of marriage and recovery of dowry which were consequently dismissed. However , her suit for maintenance allowance from the date of institut ion to the date of decision was decreed. Both the parties filed separate appeals before the Shariat Court; the appellant for setting-aside the decree of maintenance allowance and the respondent for grant of decree of dissolution of marriage on the ground of cruelty , non-payment of maintenance allowance and failure to perform the matrimonial obligations by the appellant and also for grant of decrees for recovery of dowry and payment of maintenance allowance for the period of one year prior to the institution of the suit. While elaborating his arguments, he submitted that the impugned judgment of the Shariat Court is totally against law and concept of Khula . The respondent neither claimed decree of Khula in plaint nor in appeal and even has not shown her intention in her statement recorded before the Court. Although, the Courts can dissolve the marriage on the basis of Khula but this proposition is not purely legal but also factual one which basically requires determination of the fact that whether the spouses can further continue the marital life within the prescribed limits of the God and what monetary benefits have been extended by the husband to his wife.
This factual proposition can only be ascertained from the evidence of the parties. In this case, no such material has been brought on record which is helpful for the Court to ascertain this factual proposition. So far as the observation of the Shariat Court that the decree of dissolution of marriage on the basis of Khula is granted in lieu of maintenance allowance, is concerned, it is totally illegal and against the concept of Khula as the husband is under obligation to maintain his wife. According to the injunctions of Qur'an and Sunnah in case of Khula the wife has to return the monetary benefits taken from the husband, therefore, the impugned judgment of the Shariat Court is against law and not sustainable. The judgment of the learned Family Judge is quite in accordance with law, therefore, the same be restored.
4. Conversely , Raja Aftab Ahmed, Advo cate, the learned counsel for the respondent forcefully defended the impugned judgment and submitted that although for dissolution of marriage the respondent could not succeed to prove the grounds of cruelty , non-payment of maintenance allowance and non-performance of the matrimonial obligation but due to the situation developed between the spouses they cannot further continue their relationship within the limits prescribed by the God, therefore, the Shariat Court has rightly granted the decree for dissolution of marriage on the ground of Khula. The decree of Khula can be claimed at any stage and the Courts are competent to grant the same. The impugned judgment is quite legal one calling for no interference.
5. We have considered the arguments of learned counsel for the parties and examined the record made available.
Admittedly , the respondent, neither in her plaint nor in memo of appeal before the Shariat Court, claimed for decree of dissolution of marriage on the basis of Khula , however , the Shariat Court granted the same in view of its observation regarding developed strained relationship between the spouses. We have no cavil with the legal aspect that the decree for dissolution of marriage on the ground of Khula can be claimed by wife at any stage, however , the factual propositions regarding continuation of relationship within the limits prescribed by the God and the monetary benefits taken by the wife, have to be determined by the Court on the basis of facts, record, material and other circumstances of the case. If sufficient material exists for determination of these factual aspects of the matter in that case at any stage the Court is competent to dissolve the marriage on the ground of Khula but if the record is lacking such material which is helpful for the Court to determine these factual aspects, then the Court should adopt such manner so that the requisite material be made available for determination of these questions.
6. According to the nature of the relationship of spouses, for determination of the proposition that whether the parties can further continue relationship within the limits prescribed by the God or not, the basic consideration is the stand of the parties in their pleadings and statements. As it has already been obser ved that the respondent has not claimed dissolution of marriage on the basis of Khula in her pleadings, therefore, the only available material to be considered in this regard is her Court statement. The careful examination of her Court statement recorded on 31.03.2015 reveals that she has not stated any such material thing on the basis of which it can be ascertained that it is impossible for the spouses to further continue the relationship within the limits prescribed by the God. Even she has not deposed that she wants decree of dissolution on the basis of Khula . No doubt, according to the settled principle of law, it is the right of the wife to claim the dissolution of marriage on the basis of Khula but there should be some material supporting that the wife has offered for dissolution of marriage on the basis of Khula and in lieu of such dissolution offered for returning the monetary benefits taken by her. As no such offer has been made by the respondent, therefore, in the prevailing situation, determination of this proposition with reference to any other consideration is not proper course. Thus, the conclusion drawn by the learned Shariat Court does not appear to be consistent with the principle of law and justice.
7. So far as the proposition of consideration for dissolution of marriage on the basis of Khula , is concerned, according to law the maintenance allowance cannot be substituted for consideration of Khula because the maintenance is the right of wife and duty of the husband. In this regard it is suffice to refer here the case reported as Shafiqan Bibi vs. Senior Civil Judge and another [1999 CLC 160], wherein it has been held that the decree passed for dissolution of marriage on the basis of Khula to the extent of relinquishment of claim of maintenance allowance is illegal. Therefore, we are unable to agree with the observation of the learned Shariat Court that the claimed maintenance allowance shall be deemed consideration of Khula.
8. According to the celebrated principle of law, in case the wife has no other valid ground for dissolution of marriage and still she wants dissolution of marriage, then there are two conditions to be fulfilled; one to satisfy the Court that the relationship cannot be continued further within the limits prescribed by the God and the other is willingness of the wife to return all the monetary benefits she received from husband. This Court in the case reported as Muhabbat Hussain vs. Mst. Naseem Akhtar and others [1992 MLD 1294 ] has made deliberation on the proposition of return of monetary benefits and resultantly drawn the conclusion with the following observations: "We have heard the arguments and perused the record. The learned counsel for the appellant, Ch. Muhammad Bashir , has only pressed the point that the Courts below have committed an error in holding that the appellant was not entitled to receive any amount in exce ss of dower in case of dissolution of marriage on the basis of 'khula'. He has argued that it is settled principle of law that if the wife seeks dissolution of marriage on the basis of 'khula', she must return all the benefits which she received as dower or for any other reason. The learned counsel has argued that there is no authority for the propositio n that if the wife received any benefit as a result of gift or otherwise, she is not bound to return the same in case she seeks a decree for dissolution of her marriage on the ground of 'khula'.
The learned counsel has cited a case reported as 'Mst. Parveen Begum v. Muhammad Ali' (PLD 1981 Lah. 116) wherein it was held that the husband is entitled to demand the return of dower paid or any other property which he gave to his wife as a gift or otherwise. It may be stated here that there is difference of opinion amongst various jurists as to whether the husband is entitl ed to demand the return of anything more than what he had given to his wife. A reference may be made to a treatise known as "A Code of Muslim Person al Law" Volume I (First Edition, 1978), by Dr . Tanzil-ur-Rehman, wherein such dif ference amongst dif ferent schools of thought had been discussed.
It would be expedient to refer Verse No. 229 of Surah Baqar of Holy Quran which has been indisputedly made basis by all the schools of thought for dissolving marriage on the basis of 'khula' . The Urdu and English translation of the said Surah is as under:-- {{URDU TEXT}} "Divorce may be (pronounced twice; then keep (them) in good fellowship or let (them) go with kindness and it is not lawful for you to take back any part of what you have given them, unless both fear that they cannot keep within limits of Allah; then if you 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 (to her husband) for her release."
Evidently , the Holy Quran does not place any limit on the consideration for which the divorce may be pronounced by a husband on the basis of 'khula' . However , the difference amongst the jurists regarding 'Fidya' in case of 'khula' has resulted due to interpretation placed on a tradition of Holy Prophet (a.s.) which pertained to cases of 'khula' of the two wives of Sabit Ibn Qais. In the first instance his wife Jamila came to Holy Prophet (a.s.) and made a complaint in the words, the translation of which is as under:- "Oh Prophet of 'Allah'! Nothing can bring me and him together . When I raised my veil, he was coming from the front with some men. I saw that he was out of them the shortest and the ugliest. I swear by 'Allah' I do not hate him because of any defect in him, religious or moral, but I hate his ugliness. I swear by 'Allah' that if it was not for fear of 'Allah' I would have spit at his face when he came to me. O Prophet of 'Allah'! you see how handsome I am, and Sabit is an ugly person. I don't blame his religion or his morals but I fear heresy in Islam."
On hearing this the Prophet of 'Allah' said to Jamila:- "Are you prepared to return the garden that he gave you." She said: "Yes, Oh Prophet of 'Allah' and even more."
The Holy Prophet said: "No more, but you return the garden that he gave you," and then the Holy Prophet said to Sabit: Take the garden and divorce her ."
The second instance which relates to Habiba, the other wife of Sabit Ibn Qasid, the incident is reported in words, the translation of which is reproduced below:- "One day early in the morning when the Holy Prophet came out of his house, he found Habiba standing there. He inquired from her what the matter was and she said, "I and Sabit can never pull on together ." When Sabit appeared, the Prophet of Allah said: This is Habiba, daughter of Sehl. She has stated what Allah wished she should state, Habiba said, "O, Prophet of Allah, Let Sabit take from me whatever he has given me for that is all with me."
The Holy Prophet told Sabit to take back all what he had given her and to release her ."
The various Schools of thought read Verse No. 229 of Surah Baqar , reported above, in conjunction with abovementioned traditions of the Holy Prophet; some of them are of the view that the wife is not bound to return more than the dower amount which she was paid while others hold the view that she has to return whatever benefits she received from her husband in form of dower or otherwise; yet some others are of the opinion that the husband can demand even more than what he gave to his wife as dower or otherwise.
It has been seen from the aforesaid two traditions that there is nothing specific in them to support the view that husband cannot demand the return of any other property which he gave to his wife, except what was given to wife as dower . In case of Habiba, the wife of Sabit Ibn Qais, the Holy Prophet after hearing the complaint ordered Sabit to take back what he had given to his wife and release her. In case relating to Jamila, the other wife of Sabit, the Holy Prophet (a.s.) only inquired from Jamila as to whether she was prepared to return the garden which was given to her by Sabit to which she replied in affirmative and further added that she was also prepared to give more than that upon which the Holy Prophet told her no more than that. It cannot be asce rtained from the wording of the tradition as to whether the garden was given to Jamila in lieu of dower or it was a gift from her husband. Similarly , the Holy Prophet had told Sabit to take back what he had given to Habiba and release her. Phrase "what he had given" clearly implies that the Holy Prophet (a.s.) did not direct Sabit Ibn Qais to get back only dower , rather it implies that whatever was given to Habiba by Sabit was to be returned, dower or otherwise. While discussing the question of 'khula' Maulana Abul-Aala Maudoodi in his book {{URDU TEXT}} at page 61, Edition 1966, has observed as under:- {{URDU TEXT}} In Urdu translation of {{URDU TEXT}} at page 289, Edition 1985, while dealin g with the question of 'khula' it is stated as under:-- {{URDU TEXT}} It is evident from the treatise, referred to above, that the husband is entitled to demand all things which he gave to his wife whether in form of dower or otherwise. The Supreme Court of Pakistan also reached the same conclusion in "Khurshid Bibi v. Muhammad Amin" (PLD 1967 SC 97). The relevant observation on page 121 of the report are to the following ef fect:-- "Though, according to the Hedaya, it is abominable on the part of the husband to have more than the dower itself, in a case of separation of khula , yet if he insists, it is legally permissible for him to demand something more than the dower , and to the extent that he might have been out of pocket, in respect of gifts, given to the wife on marriage, he may , in law , demand restitution."
Thus the view expressed by the Courts below that respondent No. 1 was not bound to return the ornaments even if the same was proved to have been received by her is not correct and thus cannot be af firmed."
Thus, it is clear that according to the principle of Shariah, in case of dissolution of marriage on the demand of wife (i.e,. Khula ), she is obliged to return all the monetary benefits she received from the husb and. As in this case, according to the pleadings, the marriage was contracted in lieu of dower of Rs.2, 00,000/- and no other monetary benefit or property appears to have been extended or transferred by the husband to wife, thus, there is no dispute regarding amount of Khula which in this case is amount of dower i.e., Rs.2,00,000/-. However , the question whether it has been paid or not has to be determined by the Court in the light of evidence.
9. So far as the observation of the Shariat Court that in the light of principle of law laid down by this Court that once dower is paid to the wife and thereafter the same is snatched or taken away by the husband, the wife cannot claim for same is not strictly according to the spirit of the judgment. The principle laid down is confined only to the jurisdiction of the Family Court, whereas, in case of dissolution of marriage the Court has to determine this proposition according to the facts and circumstances of each case. If it is paid then the wife has to return and if it is unpaid then the wife will relinquish her claim of dower and the same shall be deemed adjusted against amount of Khula . Same like, if it is partly paid and partly unpaid the Court has to pass the appropriate decree.
10. In view of above stated legal and factual propositions although we are vested with the powers to finally decide the matter but as it has been observed that the respondent neither in her plead ings nor in statement recorded before the Court claimed for dissolution of marriage, assisting the Court for determination of proposition, thus, in this state of affairs we deem it proper to set-aside the impugned judgment of the Shariat Court and remand the case to the Family Court. The Family Court, after calling the spouses for recording their statements regarding propositions of dissolution of marriage on the basis of Khula and the payment of amount of dower , shall pass fresh decision on the proposition of dissolution of marriage on the basis of Khula
11. So far as the decree granted by the trial Court to the extent of maintenance allowance in favour of respondent is concerned, we have examined the evidence of the parties. The findings recorded by the Family Judge, impliedly concurred by the Shariat Court, appears to be legal and valid calling for no interference, thus, the decree for payment of maintenance allowance attained finality .
12. The matter of recovery of dower relates to dissolution of marriage on the basis of Khula , therefore, the same shall be freshly resolved by the trial Court in the light of direction given while remanding the matter .
13. The decree granted in favour of the appellant for restitution of conjugal rights is conditional with the final decision of the Family Judge which has to be passed on the remand of the case. If the respondent succeeds to satisfy the trial Court that the parties cannot further continue the relationship within prescribed limits of the God then the decree of restitution of conjugal rights will become inoperative but in case of failure of the respondent to obtain the decree of dissolution of marriage on the basis of Khula, the decree passed in favour of the respondent will become operative.
14. It is further observed that the trial Court, if deems necessary and so intend ed by the parties, may provide opportunity to the parties for reconciliatio n. Keeping in view the nature of the matter the trial Court is directed to decide the case within a period of three months from communication of this order .
With the above observations, this appeal stands accepted.