' Mst. Farida Begum, petitioner before this Court was married to Muhammad Ashraf, respondent No, 1 on 27-4-1986. The deferred amount of dower of Rs,5,150 was fixed at the time of marriage. Parties lived together as husband and wife. Thereafter, differences appeared and they separated. The petitioner filed two suits against the respondent No, 1 namely a suit for dissolution of marriage on the ground of Khula` and a suit for payment of maintenance whereas the respondent No, 1 filed a suit against her seeking a decree for restitution of conjugal right. All the three suits were contested, consolidated and ultimately after recording of evidence, the learned Judge, Family. Court vide judgment and decree dated 3-1-1990 dismissed the suit for restitutioli of conjugal rights filed by respondent No, 1 and maintenance suit filed by the petitioner and decreed the suit for dissolution of marriage in favour of the petitioner on the ground of Khula` in lieu of her relinquishment of claim of her dower and maintenance. Aggrieved of the condition of the relinquishment of right of maintenance and dower, the petitioner filed an appeal in the Court of learned Additional District Judge, Jhelum which was dismissed by the learned lower appellate Court vide judgment and decree dated 16-6-1993, hence, this Constitutional petition has been filed by the petitioner before this Court.
2. Mr. Ajmal Kamal Mirza, Advocate has appeared on behalf of the petitioner whereas Mr. Talib Hussain Abbasi, Advocate has appeared for respondent No,
1. In support of this Constitutional petition learned counsel for the petitioner has argued that the petitioner was entitled to the grant of decree for dissolution of marriage without relinquishment of her claim to maintenance as well as dower. The exact argument of the learned counsel for the petitioner is that although the petitioner had offered to forego her maintenance for a period of one year yet she was entitled to claim maintenance for the previous two years as she has not been maintained properly and she was turned out of his house by the respondent No, 1 a few months after marriage. Learned counsel has further contended that as per principle of Khula` it is the benefit already received which are to be returned in case the marriage is dissolved on the basis of Khula` but the benefits which are yet to be received, relinquishment thereof cannot be made a condition precedent for grant of decree for dissolution of marriage. In support of his contention learned counsel has placed reliance on certain Ahadith referred in case of Mst. Razia Begum v. Shabbir Hussain Shah (PLD 1986 AJ&K 73). Learned counsel has further contended that there is sufficient evidence on the record according to which it stands established that respondent No, 1 failed to maintain the petitioner and, therefore, she was entitled to the grant of maintenance at least for Iddat period and at any rate the deferred amount of dower cannot be said to be returnable benefits as consideration of Talaq-i-Khula`. However, learned counsel contends that even if dower amount is conceded to be a benefit which cannot be retained or received by the wife in case she asks for dissolution of marriage on the principle of Khula` yet she can claim maintenance even if the marriage is dissolved on the ground of 'Chula' hence, the impugned judgment to the extent of refusal of maintenance to the petitioner is without lawful authority.
3. As against the above arguments, learned counsel for the respondent has vehemently argued that it is established legal proposition that in order to claim Talaq-i-Khula` the wife is bound to return all the benefits which she may have received from her husband to forego the future benefits and that the word `return of benefits', shall also include the future benefits which the wife can claim if she is asking for divorce on the principle of Khula'. Exact argument of the learned counsel for the respondent is that the amount of dower as well as the maintenance is a benefit and, therefore, if the wife is bound to return the said benefit in case she claims divorce on the ground of Khula` how can she be allowed to claim those benefits in spite of fact the marriage is dissolved on the basis of Khula`. Learned counsel further contends that it is not established on record that the petitioner has been living away from the respondent No, 1 due to any fault on his part and, therefore, two Courts have rightly held that she is not entitled to the grant of maintenance, therefore, the impugned judgment and decree rendered by the two Courts of exclusive jurisdiction cannot be said to have been passed without a lawful authority and as such this writ petition is liable to be dismissed. In support of his contention learned counsel has placed reliance on cases of Mst. Balqis Fatima v.
Najm-ul-Ikram Qureshi (PLD 1959 (W.P.) Lahore 566), Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97) and Muhammad Iqbal Kocut v. Judge Family Court (1993 CLC 699).
4. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Two Courts below have rendered a finding of fact that the petitioner is not entitled to the grant of separate maintenance. Learned counsel for the petitioner has not been able to point out any misreading or non-reading of evidence. Established legal proposition is that in case of claim of dissolution of marriage on the principle of Khula` by the wife she is bound to return the benefits which she may have received from her husband. Claim to receive benefits in future also shall have to be relinquished in case the wife claims dissolution of marriage on the ground of Khula`. Even the case of `Mst. Razia Begum' supra relied upon by the learned counsel for the petitioner supports the above view to the extent of return of dower. Consequently two Courts below besides rendering the concurrent finding of fact to the effect that the petitioner is not entitled to the grant of maintenance have rightly held that the petitioner shall have forego her claim of maintenance as well as dower in lieu of decree for dissolution of marriage on the principle of Khula`. This view is quite in consonance with the law declared by the Hon'ble Supreme Court of Pakistan and by this Court in various judgments. The impugned judgment and decree rendered by the two Courts below of exclusive jurisdiction, hence, are unexceptionable and cannot be said to have been passed illegally and without a lawful authority.
' In view of above I see no force in this writ petition, hence, the same is dismissed. The parties are left to bear their own costs.