FAZAL SUBHAN, J. By way of this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (constitution), the petitioner has prayed for the following: - "it is, therefore, humbly prayed that on acceptance of the instant writ petition, the impugned judgments, decree and order dated 07.12.2019 passed in Family Appeal No.10/ FC of 2019 title "Mst. Bilqees Bibi etc Vs Saeed Akhtar" rendered by learned Additional District Judge-V, Abbottabad to the extent of dower, which is held to have not been paid to the plaintiff/respondent No.1 and entire dower is outstanding against petitioner" may please be set-aside and judgment, decree and order dated 23.02.2019 rendered by learned Family Court- IV /Civil Judge-XI, Abbottabad may please be upheld. Any other relief which this Honorable court deems fit and proper in the circumstances of the case, may also be issued/passed."
2. Brief but relevant facts of the case are that respondent/plaintiff instituted a family suit No.49/FC on 30.09.2015, for dissolution of marriage on the grounds of non-payment of maintenance for the last 3 years, cruelty, recovery of Rs.250,000/- or golden ornaments, possession of a house, described in para Jeem, maintenance of Rs.5000/- per month for her from 2012 till talaq, Rs.10000/- as maintenance allowance for plaintiff No.2 from July 2012 till marriage with 10% annual increase and dowry articles as per list annexed with the plaint or its current market value.
3. The suit was contested by the petitioner/defendant through written statement wherein he denied averments of the plaint and also claimed decree for restitution of conjugal right. After framing of issues both the parties record their evidence and vide judgment and decree dated 23.02.2019 the Judge Family Court passed the following reliefs to her.
Plaintiff Balqees Bibi could prove her case to the extent of maintenance of the minor/plaintiff No.2 for her past maintenance @ Rs.2000/- since August 2012, till date and in future @ Rs.5000/- per month alongwith 10% annual increase. Keeping in view the financial status of the defendant and dowry articles, therefore, relief Raw and Seen are decreed in her favour, while rest of the claims are dismissed and her suit is partially decreed. She is also held entitled to the decree of Khullah alongwith maintenance for the period of Iddat. The same time, suit of the defendant in the form of restitution of conjugal rights is hereby dismissed. Notice of Khullah be issued to the Union council concerned subject to return of gold ornaments/house as dower to the defendant.
4. Aggrieved from the said judgment and decree, the respondent filed appeal No.10/FC of 2019, which was allowed with the following conclusion drawn in para No.11 of the judgment.
"Resultantly, this court has come to the conclusion that the learned trial court has erred in directing the plaintiff/appellant to return the gold ornaments in lieu of Khula and to this extent, the impugned order, judgment and decree needs modification, therefore, the appeal in hand is partially accepted to the extent of dower, which is held to have not been paid to the appellant/plaintiff and entire dower is outstanding against the respondent. Rest of the appeal in hand is dismissed."
5. Being not in agreement with the above findings, the petitioner/defendant has come up with this writ petition.
6. Arguments heard and record perused.
7. At present the only contentious/issue/matter between the parties is the return of 5 tolas golden ornaments given to the respondent at the time of marriage. Originally the respondent claimed dissolution of marriage on the ground of non payment of maintenance amounting to cruelty and the learned Judge Family Court, while deciding issues No.1 & 4 concluded that she has not proved the non-payment of maintenance or cruelty and dissolve the marriage, on the basis of Khulla, subject to return of gold ornaments/house, given as dower.
8. From the record it is clear that the respondent admitted in self statement that she was given golden ornaments at the time of marriage belonging to the sister of petitioner which were later on snatched/taken back. In the initial part of her cross examination the respondent totally denied to have been garlanded with the golden ornaments at the time of marriage. The Nikah Nama Ex.PW4/1, to which presumption of correction is always attached, shows that golden ornaments 5 tolla were fixed and was in the shape of prompt dower. The contradictory stance of respondent regarding non-payment of golden ornaments make in her statement seriously doubtful, especially when no other witness of the snatching/taking back of golden ornaments is produced. To the contrary, the petitioner during his statement recorded at the time of reconciliation proceedings stated that the golden ornaments given to the respondent were that of his sister and later on he paid its price. At the same time, in his court statement he was found consistent in respect of the payment of golden ornaments, whereas the portion of house given in dower was admitted to be in his possession. The respondent produced one Gharib Nawaz (PW-3), the jirga member and his cross-examination show that during jirga there was no dispute of gold, which further support the contention of petitioner that golden ornaments were already with the respondent and during jirga no demand for golden ornaments were made.
9. Thus it is apparent from the record that golden ornaments are already with the respondent and in the event of dissolution of marriage on the ground of Khullah, she is bound to return the same to the petitioner. In this respect reliance can safely be placed on the case law titled Mst. Shamim Akhter -Versus--Abdur Rafiq and 2 others 2013 MLD 760, it is held that:- "Coming to the aspect of recovery of dower, it may be mentioned that petitioner herself has conceded in her evidence that at the time of ouster from the house she had taken away 5 tolas of gold earlier given to her by respondent at the time of Rukhsati. As per latest view of the superior Courts if the husband is not at fault but the wife for some reason or another wishes to end the marriage, then it is permissible for the husband to demand and receive some financial payment, however, it would be superior for him not to take more than the actual stipulated dowry. Section 10 of the West Pakistan Family Courts Act has mandated the Court to reconcile the parties once they enter appearance but the proviso to this section stipulates that where this is not forthcoming in a case seeking divorce through 'Khula', a decree dissolving the marriage is to be passed forthwith and at the same time the dower amount is to be restored to the husband.
In this view of the matter, the learned appellate Court has rightly held the respondent/husband to recover dower of 5 tolas gold ornament, which was admittedly given to petitioner at the time of rukhsati and which she had taken with her at the time of leaving the house of respondent."
10. In these circumstances, it is held that the learned appellate court, while passing the impugned judgment, has not properly appreciated the record and has passed an illegal order which is not sustainable hence, by accepting this writ petition, the impugned judgment dated 07.12.2019 is set- aside and the judgment and order passed by the Judge Family Court dated 23.02.2019 is restored.