' Through this Constitutional Petition, Said Rasool, petitioner seeks the annulment of judgment and decree dated 9-10-1988 passed by the learned Additional District Judge, Lakki Marwat, on the ground of its being without lawful authority and of no legal effect.
2. The facts leading upto this petition are that Said Rasool, petitioner, was married to Mst. Razia Bibi, the respondent No,2, somewhere in the year 1982-83. Unfortunately, it appears, the relations between the spouses fell out. In consequence respondent No,2 filed a suit against the petitioner for recovery of ornaments weighing 15 tolas of gold valuing Rs,33,000 in lieu of dower and also for recovery of maintenance allowance for eight months. She filed yet another suit for dissolution of marriage against the petitioner on the following grounds, namely:--
(a) that defendant had not paid the dower debt and the maintenance allowance;
(b) that she had been maltreated by the petitioner during their matrimonial life; and
(c) that the relationship between the spouses have been so strained that it had become impossible for them to pull on together within the limits of God.
' In this respect respondent No,2 appears to have also prayed for dissolution of marriage by the exercising of her right of `Khula'. The petitioner, in order to counteract these suits filed a suit for restitution of his conjugal rights on the allegations that after the marriage the spouses lived together for about 5/6 years, whereafter respondent No,2 left the house of the petitioner on the pretext of a visit to her parents. The petitioner tried to bring her back but could not succeed. The trial Court thus consolidated all the three suits. The parties went to trial Court on the following issues:
(1) Whether the plaintiff-wife has got a cause of action?
(2) Whether the plaintiff is entitled to the past maintenance @ Rs,300 p.m.?
(3) Whether the plaintiff is entitled to the future maintenance allowance and on what rate?
(4) What was the Dower amount?
(5)Whether the Dower has been paid?
(6)Whether the plaintiff is entitled to the decree for dissolution of her marriage?
(7)Whether the plaintiff is entitled to the decree for dissolution of her marriage on the basis of Khula?
(8)Whether defendant-husband is entitled to the decree for restitution of conjugal rights?
(9)What should the order be?
3. The parties produced their evidence. On the conclusion of the hearing, the learned trial Court while dismissing the suit of respondent No,2 for dissolution of her marriage and claim of maintenance allowance decreed the suit of the petitioner for restitution of conjugal rights. The claim of respondent No,2 for recovery of dower amount was only decreed to the tune of Rs,800.
4. Feeling aggrieved, respondent No,2 filed three appeals Nos.39, 40 and 41 of 1989, which were disposed of by the learned Appellate Court through the impugned consolidated judgment and decree dated 9-10-1988. The appeals of respondent No,2 were accepted and the petitioner's suit for restitution of conjugal rights was dismissed while that of respondent No,2 for dissolution of her marriage was decreed. Again the suit for recovery of past and future maintenance was decreed but her prayer for recovery of dower was not acceded to on the ground of lack of jurisdiction in that the golden ornament, by way of dower which had been given to respondent No,2, had been snatchd away from her.
5. The learned counsel for the petitioner submits that the learned appellate Court has not furnished any cogent reasons for upsetting the findings of the learned trial judge by dismissing the suit of the petitioner for restitution of conjugal rights and dissolving the marriage. In this context, the learned counsel maintained that the alleged non-payment of dower and non-maintenance of wife who had left her husband's house on her own is no ground by itself for dissolving the marriage. The learned counsel further argued that although there is no clear finding still prima ,facie the marriage has been dissolved by the learned appellate Court on the ground of `Khula' and, therefore, the claim of dower and maintenance allowance could not be decreed. The learned counsel further submitted that the learned Appellate Court should have ordered the restoration to the petitioner of all the benefits which she had received from the petitioner, for the right of Khula' is a right to redeem and all the benefits must be returned before the grant of, such right and that too when there are circumstances pulpable from record whichiare not existing in this case.
6. We have gone through the entire evidence and the judgments of the two Courts below with the assistance of the learned counsel for the parties. Besides other grounds for dissolution of marriage, the learned Additional District Judge had taken into consideration in dissolving the marriage between the spouses, the main ground that respondent No,2 had developed aversion for the petitioner and could not live with him within the limits of God. This finding is based on clear statement made by the respondent No,2 and other witnesses who are examined by her. The contention of the learned counsel for the petitioner that on this ground alone the Court cannot grant %hula' is devoid of any substance. The law is clearly laid down in Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97 which approved the view of Kaikaus, J in Balqis Fatima v.Najmul Ikram Qureshi PLD 1959 Lahore 566 that under Muslim law the wife is entitled to `Khula', as of right, if she satisfies the conscience of the Court that it will otherwise mean, "forcing her into a hateful union".
Applying this principle, we have no hesitation to affirm the findings of learned Additional District Judge on this score.
7. The next submission of learned counsel for the petitioner is that observation of the learned trial Judge that the respondent could, if she was so advised, sue the petitioner in the Civil Court for recovery of her ornaments which had allegedly been snatched from her, was unwarranted under the law. He contended, and rightly so, that the respondent No,2 could only be granted the decree for dissolution of marriage on the basis of %hula', if the benefits which the wife has derived from the husband out of the marriage were restored to him. The grievance of the learned counsel is that the learned Appellate Court has neither determined the benefits nor has ordered the restoration thereof. It was consistently contended that if the Appellate Court had come to the conclusion that respondent No,2 had developed such aversion as to justify the dissolution of marriage on the basis of `Khula' then she was not entitled to either past or future maintenance. We have no hesitation to uphold the last mentioned contention raised on behalf of petitioner. Undoubtedly a wife is entitled to 'Khula' if she satisfies conscience of the Court that it will otherwise mean forcing her into hateful union. Nonetheless a wife demanding separation on the basis of Khula, will return to the .Husband any tangible returnable benefits conferred on her by the husband. This contention is material only if husband insists on return of dower and other benefits. Nonetheless where the parties do not mutually agree for separation by way of %hula' the Court could allow it in consideration of her giving up right to recover dower which was unpaid and restoration of other benefits if any. In the instant case even if assertion of respondent No,2 that she had been deprived of her ornaments which she has been given in lieu of her dower would not be recoverable and the %hula' would be allowed in consideration of her giving up her right to recover these ornaments. Similarly, since it is her own case that she had developed a deep aversion and hatred towards the petitioner, therefore, she would not be entitled to any past or future maintenance.
8. In the light of what has been observed above, we would partially allow this petition and in consequence the order of the learned Appellate Judge to the extent of recovery of past and future maintenance granted to respondent No,2 as also the ornaments given in lieu of dower is declared to be without lawful authority and of no legal effect against the petitioner. The rest of the prayer claimed in this petition is, however, not entertained. The parties are, however, to bear their own costs.