This petition calls into question the legality of the consolidated judgment and decree dated 26.08.2020, whereby the learned Additional District Judge, Kamalia, while dismissing the appeal filed by defendant/petitioner, partly accepted the appeal filed by the plaintiff/Respondent No. 3 and modified the judgment and decree dated 03.12.2019 passed by the learned Judge Family Court, Kamalia, in the terms that the plaintiff/Respondent No. 3 was held entitled to recover maintenance allowance at the rate of Rs. 4000/-per month for her Iddat period, dowry articles as per list Exh.P.2 except articles mentioned at serial No. 1,15,17,19 and 20 or Rs. 2,75,000/-as alternate price thereof and Rs. 100,000/-as compensation/damages for divorce.
2. Brief facts giving rise to this petition are to the effect that on 13.02.2019 the plaintiff/Respondent No. 3 filed suit for recovery of maintenance allowance, dowry articles and residential land as well as Rs. 100,000/-as divorce damages, alleging that she was married with the defendant/petitioner on 18.03.2013; she was given dowry articles by her parents as per list attached with the plaint valuing Rs. 695,500/- in the beginning attitude of the defendant/petitioner was cordial but thereafter his attitude was changed; that four months prior to the institution of suit the petitioner went to Faisalabad and took away three tolas gold ornaments gifted by parents of the plaintiff/Respondent No-3 with a promise to return' the same after settlement of business, but thereafter he sent notice of Talaq-e-Salasa; that as' per condition of Nikah Nama the plaintiff/Respondent No. 3 was entitled to receive one and a half marla residential land and Rs.
100,000/-as damages; and that the petitioner having a monthly income of Rs. 40/50,000/-can easily pay maintenance allowance of Rs. 10,000/-per month, therefore, she prayed for a decree for grant of maintenance allowance, dowry articles and a residential plot measuring one and a half marla along with Rs. 100,000/-as damages. The defendant/petitioner contested the suit by filing written statement, wherein he raised certain legal as well as factual objections.
3. The learned trial Court out of divergent pleadings of the parties, framed issues, recorded evidence of the parties, and after having gone through the same partially decreed the suit and held the plaintiff/Respondent No. 3 to be entitled to recover maintenance allowance at the rate of Rs. 4000/-per month for her Iddat period, dowry articles as per list Exh.P.2 except the articles mentioned at Serial No. 01, 05, 07, 08, 11, 13, 14, 15, 17, 19 and 20 or alter late price thereof Rs. 1,10,000/- while dismissing the suit to the extent of recovery of damages, vide judgment and decree dated 03.12.2019. Feeling aggrieved, both the parties preferred appeals, which were decided through a consolidated judgment and decree by the learned Additional District Judge in the terms recorded in para-1 above.
4. Arguments heard. Record perused.
5. The petitioner did not dispute the findings of both the Courts below with regard to maintenance allowance awarded to Respondent No. 3 or the decree of the trial Court for recovery of dowry articles passed by the trial Court, as in the prayer clause judgment and decree of the trial Court has been sought to be restored by setting aside the judgment and decree of the appellate Court.
It is important to note that in view of admission of the petitioner as well as his witness in their cross- examinations that custom of giving dowry to the daughters was being followed in their society and the prayer for restoration of the judgment and decree of the trial Court, it would be deemed to be an admitted fact that dowry articles were given to Respondent No. 3 by her parents at the time of marriage as per list Exh.P.2 and this point need not be discussed any more.
6. Now the point to be determined before this Court is with regard to evaluation of dowry articles. It is to be noted that both the Courts below having considered the list Exh.P.2, excluded articles mentioned at serial No. 15, 17, 19 and 20, as the same were clothes etc. and presumed to have been utilized by the parties. Articles mentioned at serial No. 01 being gold ornaments usually presumed to remain in the use of wife, were also excluded by both the Courts below. The leaned trial Court, however, excluded items mentioned at serial No. 5, 7, 8, 11, 13 and 14 of the list Exh.P.2 on the ground that the same were electronics and electrical appliances and were required to be proved to have been given through convincing evidence by giving detailed particulars thereof, ignoring the fact that the same being items of daily use, are usually given by the parents to their daughters and that too after holding in the earlier paragraph that dowry articles were given as per list Exh.P.2. In the circumstances, the learned appellate Court rightly observed that the said articles were proved to have been given to plaintiff/Respondent No. 3 by her parents at the time of marriage. As regards fixation of depreciated price it is noticed that the learned trial Court jointly assessed the value of the articles as Rs. 110,000/-, whereas the leaned appellate Court fixed the same by separately discussing the items and keeping in view the rehabilitation period, market value as well as element of wear and tear. In the circumstances, it is observed that depreciated value of Rs. 2,75,000/-as assessed by the learned appellate Court is more appropriate and reasonable.
7. In the instant case, the marriage was dissolved through Talaq Nama produced on record as Mark-A by the petitioner (husband) at his will without intervention of the Court. The plaintiff/Respondent No. 3 sought for a decree for delivery of one and a half marla plot and recovery of Rs. 100,000/-in view of the condition entered in columns 17 to 20 of Nikah Nama which is reproduced as under:
8. The moot point involved in the instant case is as to whether pronouncing of divorce by the husband can be made conditional. In order to properly comprehend the matter in issue, it would be advantageous to first have a glance on the relevant facts, which form basis of the instant controversy. It is an admitted fact that parties were married on 18.03.2013 and in view of the terms entered in columns No. 17 to 20 of the Nikah Nama Exh.P.4, the petitioner (husband) was made liable to deliver possession of a plot measuring one and a half marla and to pay Rs. 100,000/-to the plaintiff/Respondent No. 3 in case of divorce. In order to resolve the controversy in hand, it would be expedient to have recourse to the Divine Law (Quran). With regard to imposition of clog on the right of a husband qua pronouncing divorce, Allah Almighty in Holy Qur'an has delegated un- covenanted powers to the husband to pronounce Talaq to his wife in order to avoid any transgression of Islamic bounds. In this Regard seek guidance from Ayat Nos.227-228 of Surah Al- Baqarah, which is as under: Further in 01' Ayat of Surah At-Talaq, Allah Almighty says as under: Section 105 Chapter XII of the Code of Muslim Personal Law (written by Dr. Tamil-ur-Rahman, Ex- Judge of Sindh High Court, Volume 1) the Delegation of right of Divorce (Tafwid at-Talaq) is described which is reproduced as under: - "Delegation of the right of divorce: It is lawful for the husband to delegate to the wife the right of effecting divorce. In that event, however, his own right of effecting divorce shall not lapse."
Section 7(1) of the Muslim Family Laws Ordinance, 1961 deals with Talaq, in the following manner: "7(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife."
Para 307 of Muhammadan Law by D.F. Mulla defines different kinds of divorce which reads as under: "307. Different forms of divorce.--The contract of marriage under the Muhammedan Law may be dissolved in any one of the following ways:
(1) by the husband at his will, without the intervention of a Court;
(2) by mutual consent of the husband and wife, without the intervention of a Court;
(3) by a judicial decree at the suit of the husband or wife. The wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she may, in some cases, obtain a divorce by judicial decree.
When the divorce proceeds from the husband, it is called talak; when it is effected by mutual consent, it is called khula or mu-bara'at according to the terms of the contract between the parties."
9. From the perusal of afore-mentioned glorious references of Holy Quran as well as provisions of Section 105 of the Code of Muslim Personal Law, Section 7 of the Muslim Family Laws Ordinance, 1961, and Para 307 of the Muhammedan Law, a husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified law.
10. In this regard, the Hon'ble Supreme Court in the case of Muhammad Bashir Ali Siddiqui v. Mst.
Sarwar Jahan Begum and another (2008 SCMR 186), while dealing with the proposition in hand, held as under: "When confronted with the question as to whether parties could place restriction on their respective rights given to them by Shariat Law, Mr. Akhlaq Ahmed Siddiqui was unable to advance any plausible ground. His only contention was that such condition was embodied in the Nikahnama by way of safety and for prolongation of marriage contract, as it Would deter both the parties from bringing an end to the marriage contract. This contention to say the least is absolutely frivolous as it is against the basic principle of law which requires the parties to remain in marital ties in a peaceful and tranquil atmosphere and are not required to be bound by stringent conditions to remain in marriage bond."
11. After having an overview of judgment in the case of Muhammad Bashir All Siddiqui (Supra) there can be no second opinion that principles laid down by the Hon'ble Apex Court shall prevail in terms. of Article 189 of The Constitution of Islamic Republic of Pakistan, 1973.
12. Reliance can also be placed on the cases of Mst Zeenat Bibi vs. Muhammad Hayat & 2 others (2012 CLC 837) and Muhammad Asif vs. Mst. Nazia Riasat & 2 others (2018 CLC 1844). As such, the judgment of the learned appellate Court to the extent of granting decree for recovery of Rs.
100,000/-to the plaintiff/Respondent No. 2 suffers from patent illegality and is liable to be set aside.
Therefore, the findings to that effect are hereby reversed.
13. For the foregoing reasons, I am of the considered view that the learned appellate Court, while holding the plaintiff/Respondent No. 3 entitled to a decree for recovery of Rs. 100,000/-on account of pronouncement of divorce, has erred in law. Resultantly, this petition is partially allowed and the judgment and decree of the learned appellate Court to the extent of recovery of Rs. 100,000/-is set aside, while to the extent of maintenance allowance and dowry articles the same is upheld. There will be no order as to costs.