FAZAL KARIM, J.- The petitioner, Mst. Hamida Begum, seeks by this petition under Article 199 of the Constitution a declaration that the judgment and decree of the learned Family Judge, Jhelum, dated 30.1.1992 and those of the learned Additional District Judge, Jhelum, 19.5.1992 in so far as they ordered the petitioner to return 6 kanals of land which she had received from the defendant's father at the time of her marriage while granting her decree of dissolution of marriage on ground of khula is without lawful authority and is of no legal effect.
2. The petitioner and the respondent, Abdul Riaz, were married on 7.11.1983. The marriage ran into difficulties and the petitioner instituted a suit for dissolution of marriage on 11.10.1990 on various grounds including the grounds that the defendant had failed to provide maintenance for a period of two years; had failed to perform his marital obligations for a period of three years, had been treating her with cruelty and khula. The suit was contested and on the parties' pleadings 8 issues were formulated and tried. Issue No. 3 was "whether the defendant has failed to provide maintenance for more than 2 years" issue No.4 was whether the plaintiff had failed to perform his marital obligations for a period of years; issue No.5 was whether the defendant habitually mal- treated the plaintiff and issue No.7 was "whether the plaintiff is entitled to decree for dissolution of marriage on ground of khula, if so, on what terms". The learned Family Judge found that the defendant had failed to maintain the plaintiff for more; than two years; that he had failed to perform his marital obligations for more than three years and that the behavior of the defendant was cruel" and decided issues No. 3,4 and 5 in the plaintiffs favour. He held also that the plaintiff and the defendant could not live "within the limits of God" and that "it is better to dissolve the marriage" .The learned Family Judge found also that on 5.11.1983, the defendant's father had by means of hibanama (Ex. D.1) transferred 6 kanals of land to the plaintiff "as consideration for marriage". He, therefore, decided issue No.7 also in favour of the plaintiff; in so doing, he said: "so the marriage is dissolved conditionally. The plaintiff has to return back 6 kanals of land to defendant's father or defendant.
3. It should be mentioned here that the defendant had instituted a suit for restitution of conjugal rights and both the suits were decided by the same judgment of the learned Family Judge dated 30.1.1992.
4. As a result of the findings, noticed above, the learned Family Judge held: "As my findings on above mentioned issues first suit for dissolution of marriage is decreed in favour of the plaintiff and against the defendant on the basis of khula. The plaintiff is ordered to return back 6 kanals of land which she received from father of the defendant vide Hibanama Ex. D.1.
Second suit for restitution of conjugal rights is hereby dismissed".
5. The petitioner appealed against the judgment and decree of the learned Family Judge but her appeal was dismissed by the judgment of the learned Addl. District Judge dated 19.5.1992. He affirmed the finding of fact returned by the learned Family Judge, namely, that the land had been given to her by the defendant's father in lieu of marriage and held that as she had asked for "dissolution of marriage on the basis of khula she has to fulfil the condition of khula laid down by the Family Court".
6. It has been settled by authority that a decree of dissolution of marriage on the basis of khula even though made conditional on return of benefits operates to dissolve the marriage when it is passed that its effect is not postponed till the benefits are returned and that non-payment of stipulated consideration for khula does not invalidate the dissolution of marriage by khula but only creates civil liability with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself. (See Dr Akhlaq Ahmad Vs. Mst. Kishwar Sultana and others (PLD 1983 S.C.169) In Sarnia Akber Vs. Muhammad Zubair (NLR 1990 Civil 155), it was held that the benefits ordered to be returned by the decree of the learned Family Court can be recovered in execution of the decree.
7. The only question requiring determination, therefore, is whether in the facts of the case, the learned Family Judge was right in law in ordering the return of 6 kanals of land, learned counsel for the petitioner maintained that as the petitioner had been held entitled to dissolution of her marriage on grounds of non-maintenance, non-performance of marital obligations and cruelty, it was wholly unnecessary to dissolve the marriage on ground of khula. It was pointed out that as there was no need to have resort to the ground of khula, the order of the learned Family judge directing the return of the land to the defendant was without lawful authority. Learned counsel for the defendant, respondent herein, argued that as the marriage had been dissolved on ground of khula, it was necessary for the learned Family Judge to determine the benefits which the plaintiff had derived from the defendant or his father and to order their return.
7. There can be no doubt that if this were a decree for dissolution of marriage on ground of khula alone, then the order of the learned Family Judge directing the return of the land to the defendant would have been unexceptionable. As has been seen, the learned Family Judge had found the petitioner entitled to have her marriage dissolved on grounds of non-maintenance, non- performance of marital obligations and cruelty. There is no question that the learned Family Judge was competent to dissolve the marriage on those grounds and also that the dissolution of marriage on those grounds and also that the dissolution of marriage on those grounds did not entail the return of the land. The ground of khula was no doubt one of the grounds taken in the plaint. But the plaintiff was entitled to take that ground in addition to other grounds. And as the findings of the learned Family Judge on issues No.3,4 and 5 entitled her to the decree for dissolution of marriage, it was wholly unnecessary for the marriage to be dissolved on the ground of khula. If I may say so, both the learned Family- judge and the learned Addl. District Judge ignored altogether, in passing the decree, the findings on issues No. 3,4 and 5 and decreed the suit on the ground of khula alone. This is a patent illegality, for if the findings on issues Nos. 3,4 and S had not been ignored, then there would have been no occasion for passing the decree on ground of khula only and ordering the return of 6 kanals of land.
8. For these reasons, the petition is accepted and the orders of the learned Family Judge and the learned Addl. District Judge ordering there turn of 6 kanals of land by the plaintiff to the defendant, Abdul Riaz respondent herein, one declared to have been made without lawful authority and to be of no legal effect. The parties are left to bear their own costs.