SAHIBZADA ASADULLAH, J. Through the instant writ petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner/plaintif f Mst. Farhat Imam has challenged the validity of judgment and decree dated 11-09-2017, passed by the learned Family Judge Takht-e-Nasrati Karak to the extent of dissolution of marriage, which has been granted on the basis of Khullah instead of cruelty .
2. Briefly stated the facts giving rise to the instant Writ Petition are that initially the plaintif f (herein after called as petitioner) had brought a family suit against the defendant (herein after called as respondent) before the learned Judge Family Court seeking decree for recovery of dower Rs.50,000/-, 05 tola gold ornaments and dowry articles, recovery of maintenance allowance at the rate of Rs.10,000/- per month from the month of January 2014 till the expiry of period of Iddat as well as decree for dissolution of her marriage on the basis of cruelty .
3. It was averred in the plaint that engagement Nikah of petitioner/ plaintif f was solemnized with the respondent No.1 Sajid Nazif some three years ago in lieu of deferred dower as 05 tola gold ornaments, Rs. 50,000/- in cash and dowry articles; that at the time of her rukhsati , 05 tola of gold ornaments were arranged by the respondent/ defendant for her but after ten days, he had taken it back; that respondent/defendant had also purchased the house hold articles for her, as detailed in the appended list, but the same are also in his possession; that from the very beginning, the relationship between the spouses was normal, but, on demanding the dower from him, relations became strained and the respondent No.1 started torturing her, both physically and mentally , and lastly in the month of January , 2015, she was ousted from the house by the respondent No.1, by retaining her 05 tolas gold ornaments alongwith dowry articles and since then she is residing in the house of her parents; that petitioner started demanding her dower including 05 tolas gold ornaments and house hold articles, which were allegedly taken by the petitioner as well as maintenance allowance but he refused; that now the respondent No. 1/defendant has also contracted second marriage, therefore there is no chance of living with him in such a situation. Hence, the suit (ibid) was brought by the petitioner against the respondent.
4. The suit was contested by the respondent by submitting written statement wherein legal and factual objections were raised. From divergent pleadings of the parties, the learned trial Court framed as many as 12 issues including relief. After recording pro and contra evidence, and hearing arguments of learned counsel for the parties, the learned Judge Family Court passed a partial decree only to the extent of dissolution of marriage on the basis of khullah, while rest of her claim was dismissed, vide judgment and decree dated 11-09-2017, hence the instant writ Petition.
5. I have heard the learned counsel for the parties who have advanced arguments for and against the legality of the impugned judgment whereby the marriage has been dissolved on the ground of Khula subject to the restoration of dower .
6. It is noteworthy that cruelty on the part of respondent/husband has been proved and the petitioner-wife had not claimed decree for dissolution of marriage on the basis of Khula instead, as pointed out above, she had claimed for such prayer on the ground that the petitioner had contracted second marriage without asking her permission and had forced her out of his house before the institution of the suit, and thereafter , no maintenance allowance was provided. A wife can seek dissolution of her marriage on any one or more of the grounds mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939. These grounds include husband's cruelty , his desertion of the wife for three years, his taking an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961 and any other ground including Khula recognized under the Islamic Law. A wife would lose her dower only if she seeks dissolution of marriage on the sole ground of Khula but not when she urges other grounds in support of her case unless the other grounds are not proved. Her entitlement to receive dower or its retention would remain unaf fected and intact if she was able to prove other grounds like cruelty of the husband.
This view is fortified by Habib-ur-Rehman v. Additional District Judge, Lahore and others (1984 SCMR 1430 ), where a wife sought dissolution of her marriage on the ground of cruelty of the husband as well as on account of the hatred she had developed towards him.
7. Undoubtedly , the petitioner has not sought the dissolution of her marriage on the sole ground of having developed aversion towards responden t/husband but has also alleged respondent/husband second marriage without permission of the Arbitration Council, his failure to perform his marital obligations and his cruel treatment of the respondent, which she prayed and have been recognized as valid and separate grounds for the dissolution of marriage under clauses (ii-A), (v) and (viii) of section 2 of the Dissolution of Muslim Marriages Act,1939.
8. A woman married under Muslim Law is entitled to obtain a decree for the dissolution of her marriage on anyone or more of the grounds available under the law. Each ground is separate and enough for dissolution. If marriage was dissolved on other grounds also, it means that the result would have been the same irrespective of the fact that the plea of Khula was raised or not. Legal rights cannot be curtailed by implication. Even otherwise, it is proved from the record that behavior of respondent/husband throughout remained cruel towards the petitioner , despite this, after all-ef forts, she rehabilitate with husband but in every turn, the respondent/husband could not mend his ways.
9. So far as the rest of the claims and dower of the petitioner are concerned, the record depicts that petitioner/wife claimed that dower was unpaid and the respondent/husband claimed that the same was paid, the learned trial court in view of the stance taken by the parties framed relevant issues and decided the same after considering the evidence held that dower 05-Tola gold and Rs.30000/- have been paid to petitioner by the respondent and she has desperately failed to prove the snatching of dower 05-Tola gold. To this extent, the findings of learned trial court is justified, this Court is of the considered view that there is no valid reason to interfere with the said order to that extent.
10. In the light of the above discussion, this Court reaches nowhere but to hold that the learned Judge Family Court has not properly appreciated the evidence brought on record by the parties and erred in passing the decree for dissolution of marriage on the basis of khula in favour of the respondent-wife to which exception can be taken by this Court to interfere with the same in its constitutional jurisdiction. This petition, therefore, succeeds and the same is hereby allowed.