SHAHID BILAL HASSAN-J: Tersely, the respondent instituted a suit for recovery of gold ornaments weighing 8 tolas and Rs.500,000/- as damages on account of divorce, against the present petitioner. It was maintained that her Nikah was solemnized on 25.11.2008 with the present petitioner and dower amount was fixed at Rs.1,000/-. In column No.17 of the Nikahnama special condition was mentioned that the petitioner/ defendant would give 8-tolas gold ornaments to the respondent/ plaintiff which would be property of the respondent/plaintiff; that it was also mentioned in Nikahnama if that the petitioner/ defendant divorces the respondent/plaintiff, he would pay Rs.500,000/- as compensation. It was averred that the petitioner/defendant divorced the respondent on 15.01.2009; therefore, she instituted suit. The learned trial court dismissed the suit on 12.02.2010. The respondent/plaintiff being aggrieved preferred an appeal, which was accepted on 02.06.2010 and case was remanded to the learned trial Court. The petitioner/defendant challenged the said remand order through writ petition which was accepted by this Court on 25.11.2011 and decision of the learned Judge Family Court was restored. Therefore, the respondent/plaintiff filed a suit for recovery of 8-tolas gold ornaments and Rs.500,000/- before the Civil Court. The petitioner/defendant contested the suit by submitting written statement.
Divergence in pleadings of the parties was summed up into issues and evidence of the respondent/plaintiff was recorded. The petitioner/defendant could not produce evidence so his right to lead evidence was closed and suit of the respondent/plaintiff was decreed vide judgment and decree dated 09.01.2018. The petitioner/ defendant being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 11.06.2019; hence, the instant revision petition.
2. Heard.
3. It is claim of the respondent that Nikah inter se the parties was solemnized on 25.11.2008 and at the time of Nikah, the present petitioner agreed to give 8-tolas gold ornaments to the respondent/plaintiff and a stipulation was imposed on the right of divorce of the present petitioner that if he divorces the respondent, he will pay Rs.500,000/- in lieu thereof. Now, the petitioner has divorced the respondent and has not paid the above said gold ornaments and compensation in lieu of divorce therefore, the respondent is entitled to the same. The petitioner/ defendant denied the averments of the plaint and contended that he did not enter into nuptial tie with the respondent with his free will rather his thumb impression was obtained by force.
4. In order to substantiate her claim, the respondent produced Nikah Khawan, witnesses of marriage besides her own deposition in the witness box. All the witnesses have corroborated the stance of the respondent with regards to the entries made in the Nikahnama germane to gold ornaments and stipulation as well as restriction on right of divorce by the petitioner, which have been mentioned in columns No.17 and 19 of the Nikahnama. The petitioner could not lead evidence as to obtaining of his thumb impression on the Nikahnama by force and under undue influence by the respondent and even the same does not appeal to prudent mind. The Nikahnama is per se admissible in evidence and entries of the same have not been challenged by the petitioner before any forum at the relevant time. Even otherwise, the entries of the Nikahnama have been proved by the respondent by producing oral as well as documentary evidence. As against this, the petitioner could not lead evidence in rebuttal as his right to produce evidence was closed by the learned trial Court and he remained unsuccessful in getting the said order reversed by the higher Courts despite availing of the remedy provided under law. Meaning thereby the evidence of the respondent on this point is unrebutted and even during cross examination, conducted on the P.Ws. the petitioner's side could not shake the veracity of the testimonies of the P.Ws. rather the witnesses remained firm and unscathed. Therefore, it can safely be concluded that the respondent has rightly been held entitled to recover 8-tolas gold ornaments from the petitioner as agreed by him at the time of Nikah with the respondent, by the learned Courts below. As such, the findings of the learned Courts below to this extent are upheld and maintained.
5. So far as the claim of the respondent for recovery of Rs.500,000/- as compensation in lieu of divorce is concerned, it is observed that in the Holy Quran in Surah Al-Baqra and Surah Talaq the delegation of right of divorce has been described in detail. Similary, section 7(1) of the Muslim Family Laws Ordinance, 1961 deals with the matter of Talaq. The provision of section 105 of the Code of Muslim Personal Laws also caters this thing that a husband has an absolute right to divorce his wife. In this respect, no condition is described in Shariah as well as in the codified law. Reliance in this regard is placed on judgment reported as Muhammad Bashir Ali Siddiqui v. Muhammad Sarwar Jahan Begum (2008 SCMR 186), wherein it has been observed that no condition can be imposed on the husband if he desires to divorce his wife, because the right of divorce has been given by Almighty Allah to the husband and this proposition has been discussed in detail. The said view has been adopted in judgment reported as Mst. Zeenat Bibi v. Muhammad Hayat and 2 others (2012 CLC 837- Lahore) on this point and most recent this view has been reiterated in judgments reported as Muhammad Asif v. Mst. Nazia Riasat and 2 others (2018 CLC 1844- Lahore), Muhammad Sajjad v. ADJ etc. (PLJ 2021 Lahore 485) and Mujahid Karman v. Mst. Saira Aziz and 2 others (2022 CLC 24-Lahore) by this Court. In Muhammad Bashir Ali Siddiqui's case supra, the Apex Court of the country has held that:- '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 require the parties to remained in marital ties in a peaceful and tranquil atmosphere and are not required to be bound by stringent conditions to remain in marriage bond.'
The principles laid down by the Apex Court of the country in the judgment of Muhammad Bashir Ali Siddiqui ibid shall prevail in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, it is observed without any hesitation that the learned Courts below have failed to adjudge the case on the point of compensation of Rs.500,000/- in lieu of divorce as per settled principles and norms. Therefore, to this extent the impugned judgments and decrees are not sustainable in the eye of law.
6. For the foregoing reasons, it is observed that the learned Courts below have failed to adjudicate upon the matter in hand to the extent of question of compensation in lieu of divorce by appreciating law on the subject; therefore, this Court is vested with ample jurisdiction and authority to undo the concurrent findings in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908 as has been held in Mst. Nazir Begum v. Muhammad Ayyu b and another (1993 SCMR 321), Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001) and Muhammad Khubaib v.
Ghulam Mustafa (deceased) through LRs (2020 CLC 1039-Lahore). Resultantly, the revision petition in hand is allowed partially and impugned judgments and decrees to the extent of awarding compensation in lieu of divorce is set aside, consequent whereof the suit of the respondent to this extent stands dismissed. No order as to the costs.