' This judgment shall dispose of Writ Petitions Nos. 1206, 1208 and 1209 of 1990 which are directed against the same judgment and the decree of the Additional District Judge, Sargodha.
2. Mst. Farida Khanum, petitioner in these petitions, was married to respondent No,1 on 11th of April, 1987 against a dower of Rs,25,000. It appears that the relations between the parties became strained with the result that the petitioner was obliged to file three suits for the recovery of dower of Rs,25,000; for maintenance and for dissolution of marriage on various grounds like cruelty, misappropriation of the dowry, bad character of the respondent and Khula. A suit was also filed by the respondent No,1 for restitution of conjugal rights. By means of the judgment did decree dated 2-5-1989, the suit for dissolution of marriage filed by the petitioner was decreed on the ground of cruelty, misappropriation of articles of dowry and Khula by the Family Court. It was found that the dower was fixed at the time of marriage at Rs,25,000 which had not been paid. However, while passing the decree for dissolution of marriage, it was directed that the petitioner shall not recover dower as the marriage was being dissolved on the ground of Khula also. The same order was passed, with regard to the claim of the petitioner for maintenance. The suit for restitution of conjugal rights filed by respondent No,1 was dismissed.
3. This judgment and decree of the Family Court was challenged by the petitioner by filing three separate appeals which were dismissed by the Additional District Judge on 10th of October, 1989.
Hence this petition.
4. Mr. Sher Zaman, the learned counsel for the petitioner, in support of these petitions has contended that both the Courts below have failed to appreciate that the marriage between the parties was being dissolved not only on the ground of Khula but also on the findings that respondent No,1 had been treating the petitioner with habitual cruelty and had also deprived her of articles of dowry. The learned counsel submitted that in the event where the marriage is dissolved not on the ground of Khula alone, but also on other grounds, the wife cannot be directed to forego dower and maintenance. It was further argued by Mr. Sher Zaman, Advocate that neither in the written statement nor in his statement as a witness respondent No, 1 claimed any consideration for dissolution of marriage on the ground of Khula and as such the Courts below have acted in excess of jurisdiction by directing the relinquishment of dower and maintenance as a consideration for Khula.
5. Mr. Abdus Sattar Rajput, the learned counsel appearing on behalf of respondent No,1 has supported the decrees of the Courts below.
6. There is much force in the contentions raised by the learned counsel for the petitioner. According to the judgment of the Family Court itself, the petitioner was found entitled to dissolution of marriage on the grounds of cruelty and misappropriation of the articles of dowry which are grounds recognized by the Dissolution of Muslim Marriages Act, 1939 independently of Khula. If the petitioner had succeeded in establishing these two grounds there was no occasion for the Family Court to have directed the petitioner to forego her claim for dower and maintenance. The distinction between the dissolution of marriage due to cruelty, misappropriation of dowry, non- maintenance of wife and separation on account of Khula is too obvious to need any comment. In the first case the dissolution results from acts of commission or omission on the part of the husband while in the case of Khula, the wife is allowed to separate and free herself from the bonds of matrimony, as it is impossible for the parties to live together as husband and wife, within the limits prescribed by God. It is only in these cases that the wife can be asked to compensate the husband. This view finds support from a judgment of this Court in Iftikhar Ahmad v. Husan Pari and others 1988 CLC 2355 and of the Supreme Court in Habib-ur-Rehman v. Additional District Judge, Lahore and others 1984 SCM R 1430.
7. The other contention raised by the learned counsel for the petitioner is equally forceful. The law is well-settled that in the absence of any specific demand by the husband in the written-statement and his statement before the Court for payment of consideration, the wife cannot be directed to pay commsation for Khula. It is thus obvious that both the Courts acted in excess of their jurisdiction in directing the petitioner to pay compensation for Khula. It is thus obvious that both the Courts acted in excess of their jurisdiction in directing the petitioner to forego maintenance and dower.
In view of what has been stated above these petitions succeed and are accepted, the imposition of condition regarding the relinquishment of dower and the maintenance is declared to be without lawful authority and of no legal effect with the result that all the suits filed by the petitioner stand decreed with no order as to costs.