SAHIBZADA ASADULLAH, J. Through the instant petition under Article 199 of the Constitution of Islamic Republi c of Pakistan, 1973, the petitioner Mst. Yasmeen Gul has called in question the judgment and decree dated 29.6.2019 rendered by learned Additional District Judge-IV , D.I.Khan, whereby her appeal against the judgment dated 26.01.2019 of learned Civil Judge-I/Judge Family Court-II, D.I.Khan was modified and disposed of.
2. Succinctly , facts of the case are that the petitioner filed a suit against petitioner for dissolution of marriage, recovery of dowry , maintenance and gold ornaments, detail whereof fully given in the headnote of the plaint. The respondent No.1 appeared before learned Family Court and contested the suit by filing his written statement. Pre- trial reconciliation before the Family Court culminated into divorce on khula under section 10(4) West Pakistan Family Court Act, 1964. After framing issues and recording of pro & contra evidence, learned Civil Judge-I/Judge Family Court-II, D.I.Khan partially decreed the suit vide judgment dated 26.01.2019.
3. Feeling disgruntled from the said judgment and decree both the sides preferred separate appeals before learned Additional District Judge-IV , D.I.Khan. Learned appeal Court while adjudicating the appeals, partially accepted and disposed of both the appeals by holding the petitioner entitled for the claims as decreed by learned trial court with certain modification vide consolidated judgment and decree dated 29.6.2019.
4. Learned counsel for the petitioner , inter alia, contended that appeal court has not appreciated the evidence available on record regarding claims of plaintif f/petitioner and respondent/defendant has failed to rebut the claim of the petitioner through cogent and concrete evidence, in spite of that Additional District Judge, D.I.Khan has partially accepted her appeal such exercise undertaken by the appeal court is without jurisdiction and is not sustainable under the law. Learned counsel added that the petitioner has produced sufficient evidence in support of her claims but both the courts below decreed her claims in a perfunctory manner . He further contended that both the courts below have grossly misread the evidence available on the record and prayed for acceptance of the writ petition.
5. On the other hand, learned counsel for the respondent has vehemently opposed writ petition as well as contentions of learned counsel for the petitioner . Learned counsel for the respondent inter alia contends that under Section 10(4) of West Pakistan Family Courts Act, 1964 (the Act), the wife while seeking dissolution of marriage on the basis of khula is required to relinquish her claim of dower and even if it is not done, the court which passes the decree of khula is bound to restore the dower itself but learned Judge Family Court did not pay heed to it. He further asserts that since no consideration amount has been fixed by the family court, therefore, the judgment and decree passed by learned appeal court is immune from interference by this Court. He prays that this writ petition having no merit be dismissed.
6. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.
7. It is reflected from perusal of record that the parties entered into marriage tie on 28.01.201 1 in accordance with sharia Muhammadi in lieu of dower as 1-1/2 Marla house. Before delving deeper into the matter , in short, the petitioner has challenged the decree of learned trial court only to the extent of findings on issues vis--vis recovery of entire dowry articles and 05-Tola gold. The grievance voiced through this constitutional petition is that appeal Court was not justified in passing the impugned judgment. I have examined the evidence led by both the sides as well as the judgments of both the Courts below delivered on the basis of evidence. The respondent/wife asserted in her pleadings that she alongwith minor daughter were ousted by the defendant/respondent from his house and from that day onward, he did not pay even a single penny to her, whereas the respondent totally negated this stance of the petitioner/wife but he did not produce any evidence of any nature to substantiate his position.
8. Out of the general canvass of the claims and disputes for adjudication, petitioner's essentially impugned herein twofold prayers i.e recovery of entire dowry articles amounting to Rs.2,18,000/- and 05-Tola gold ornaments which were allegedly given to the petitioner by her parents later on snatched by the respondent/defendant. This burden was rested upon the petitioner but record speaks otherwise to this peculiar aspect of the case. In this respect, the petitioner has nothing brought on record nor shown any material substance in the statement of her witnesses to corroborate her stance. This Court found that the conclusion arrived at by the appeal court was realistic in the facts and circumstances of the case as well as evidence placed on file. The objection raised by learned counsel for the petitioner with regard to the judgment passed by Additional District Judge-IV , D.I.Khan that it is not based on evidence available on record has no ef ficacy .
9. In addition to above, looking at the claim of dowry articles, the petitioner led sufficient evidence and all PWs remained unshattered in this regard. Looking from another angle, in evidence session, defendant/respondent admitted that he is carpenter by profession so the furniture was prepared and purchased by him, but he has miserably failed to substantiate his claim, thus, learned appeal court rightly found the evidence of the petitioner with regard to the dowry articles to be cogent and convincing as compared to the evidence produced by respondent.
10. To justify the findings of appeal Court for transmitting back the matter for framing of separate issue regarding zar-e-khula, at this juncture, it is suffice to say that fate of issue relating to Khula is not dependent upon the fate of other issues. It is by now settled law that `Khula' can be granted by the Family Court even in a case in which the lady/ plaintif f has miserably failed to establish any allegation leveled by her in the plaint for seeking dissolution of marriage. The Family Court's findings of `Khula' are always based on the sole fact that the Court attempted reconciliation between the plaintif f and her husband and failed. Such findings of Family Court are not supposed to be on any elaborate evidence of parties to provide a room to the petitioner to challenge such findings through constitution petition on the ground of misreading and non reading of evidence. Therefore, when respondent/plaintif f has categorically refused to reside with the petitioner before the Family Court at the pre-trial stage, the petitioner has no right to seek factual finding of `Khula' reversed by invoking the constitutional jurisdiction of this Court. In legal parlance, Proviso to Section 10 (4) of Family Court Act 1964 has an overriding effect, which states that no decision or judgment of any Court or Tribunal shall be an impediment, therefore, right granted for dissolution of marriage is absolute and contingent only upon restoration of `Haq-E-Mehar' to the husband and nothing else. In addition to above, wife has been given charter by Islam to get dissolution of marriage through Khula in the same manner and with the same right as husband is entitled to terminate marriage through talaq. A Muslim woman has been given the right in Islam to get herself released from the bond of marriage if she feels, due to any reason, that she cannot live with her husband within the limits prescribed by Allah Almighty . In such an event, the wife has to seek Khula by foregoing the Haq Mehr received by her from her husband in cons ideration of the marriage. In this regard, reliance is placed on the law laid down in cases titled Mst Khrushid Bibi Vs. Baboo Muhammad Amin (PLD 1967 SC 97), Muhabbat Hussain Vs. Mst. Naseem Akhtar and others (1992 PSC 1034) and Mst. Balqis Fatima Vs. Najm-ul-Ikram Qureshi (PLD 1959 (W rit Petition) Lahore 566).
In addition to above, this Court is also fortified by the Judgment reported in case titled Muhammad Kamran vs Mst. Samera Majeed and others ( 2018 YLR 1251 ) wherein it was held as under: Family Courts Act WON of 1964) --- ----S. 5, Sched. --- Dissolution of marriage on basis of Khula Dower , return of....scope... where wife obtained decree for dissolution of marriage on the basis of khula, it was subject to return of dower amount and she subsequently could not claim it as of right..... In case of khula, wife would have to either remit the dower amount, if she had not received it or pay back the same to the husband if she had received it.
11. This Court also derived support from the observation of S.A Rahman, J. in case titled Mst. Khurshid Bibi vs Baboo Muhammad Amin (PLD 1967 Supreme Court 97) as under:- The question is on what term, such a decree should be granted to her. Unfortunate ly, in the trial court, the question of terms was not gone into, on either side, and the trial Judge also failed to advert to this aspect of the matter .
There is no material on the file, from which it can be ascertained how much money , if at all, the husband had given to the wife, on the occasion of the marriage, and on receipt of what compensation he would be willing to grant her khula. The pleadings of the parties show that the dower , whatever its amount was, had not yet been paid to the wife. She merely express her willingness to relinquish her dower , but the husband said, he was not agreeable even, on this condition, to grant her khula. He did not plead that he had actua lly aid her the dower . Though, according to Hedaya, it is abominable on the part of the husband to have more than the dower itself, in a case of separation by 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. This would necessitate an enquiry into the facts and the final decision as to what compensation must be paid by the wife for her relief, must rest with the Court.
12. The Holy Quran is source of knowled ge which provides us guidance in all sphe res of life. It has been stated in verse No.229 of Surah Al-Baqra of Holy Quran that: "Divorce may be pronounced twice; then kept (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."
From bare reading of above translation of the verse of the Holy Quran, it is evident that if a husband leaves her wife giving her talaq, he will not be entitled to receive anything back given by him to her spouse. However , if a wife herself wants to desert her husband, she will have to give something in lieu of her release.
In this regard, I am also fortified by the saying of Holy Prophet (Peace Be Upon Him) in the matter of Jamila, wife of Sabit Ibn Qais when she wished to separate from her husband. The Holy Prophet (peace be upon him) said: "Are you prepared to return the garden that he gave you." She said: "Yes, Oh Prophet of 'Allah' and even more."
The Holy Prophet (peace be upon him) said: "No more, but you return the garden that he gave you."
13. It may not be out of place to mention here that it is settled proposition of law that Courts below , in its original and appellate jurisdiction are competent to draw inference, while delivering the judgment and it is not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional petition, thus, this Court would not normally interfere in judgment and decree passed by court of competent jurisdiction for the reason that it was within their exclusive jurisdiction, to believe and disbelieve the evidence . It is worth to add that no Cons titutional petition is maintainable when evidence in the case has properly been appreciated and analyzed.
14. From the above discussion, it can easily be observed that the learned appeal Court has passed the decree after properly evaluating the evidence available on the record. The said judgment is based on reasoning and fully supported by the evidence available on the record. Even learned appeal Court has upheld the said judgment and decree with only a slight modification. In view of well-reasoned judgment of the appeal Court and in absence of any jurisdictional defect therein, this Court is of the considered view that there is no valid reason to interfere with the said judgment. The findings of learned Additional District Judge-IV , D.I.Khan are fully supported by the evidence and this Court cannot embark upon to reappraise the evidence or to proceed as if it is court of appeal.
15. For the foregoing reasons, this petition being bereft of merit is dismissed with no order as to cost.