KHAWAJA MUHAMMAD SAEED, C.J.-- The above-titled appeal and writ petition, are directed against the common judgment and decree passed by the Judge Family Court Muzaffarabad on April 15, 1997 as such these shall be disposed of through this single judgment.
2. The - admitted facts leading upto the above-referred appeal and Constitutional petition briefly stated are that the marriage of the parties took place on July 20, 1984. Rs.30,000/- were fixed as dower amount which according to the appellant, Mst. Sabia Naz, is still unpaid whereas the stand taken by Mir Rustam, the dower amount was paid in the shape of ornaments and other clothings.
During this wed-lock, the parties have got four children out of them to are male and the remaining to are female.
3. On August 17, 1996, Mst. Sabia Naz, appellant sought a decree for divorce on the grounds of cruelty, non-payment of maintenance allowance, matrimonial obligations and false allegations of adultery and alternatively on khulah'. The respondent-husband in his written statement denied all the averments of the plaint and further contended that the plaintiff-appellant started her service on June 22, 1989. According to him, presently the plaintiff-appellant is receiving Rs. 2,433/- per month as her pay. She is maintaining her Account No. 2307 in the U.B.L. M' abad and Account No. 3139 in the National Saving Centre, M' abad. She is depositing her whole salary in these Accounts besides extra-money, which he is paying to her. It was further averred by him that he has purchased a plot whose market value is above Rupees one Lac in Tariqabad in the name of his wife, the appellant herein. This plot, according to the defendant, was adjacent to his house. It was also averred by him that one Mst. Shaista d/o Ghulam Qader was responsible for creating difference between the spouses otherwise they were enjoying good relations and on account of these relations, they have four children.
4. Later on, on September 8, 1996, Mir Rustam petitioner-husband brought his suit for restitution of conjugal rights against his wife, the present appellant, Mst. Sabia Naz. In this suit, he reiterated the stand which was earlier taken by him in the written statement. On September 23,. 1996, the present appellant filed her written statement in the trial Court in which the stand earlier taken by her in her suit was repeated. On September 23, 1996, the trial Court consolidated both these suits and framed five issues. Out of these issues, issues Nos. 1 and 2 were material. Issue No. 1 was whether the plaintiff-appellant was entitled to the "decree for dissolution of her marriage on the grounds of cruelty, nonpayment of maintenance allowance and on the false charge of adultery. Alternatively, the second issue was whether she was entitled to a decree for dissolution of marriage on the ground of ' khullah'.
5. The learned Judge Family Court, Muzaffarabad after the trial found the issue No. 1 against the plaintiff-appellant, Mst. Sabia Naz. However allowed her a decree for the dissolution of her marriage on the ground of ' khullah' vide judgment dated April 15, 1997.
6. This judgment was assailed by the appellant. Mst. Sabia Naz, before this Court on the ground that she was entitled to a decree on the grounds of cruelty, non-payment of maintenance allowance and matrimonial obligations. Alternatively, even if her marriage was dissolved on the ground of 'Khulah', even then as dower amount or anything else was not paid to her. She was wrongly directed to repay the T.V. Frige, Telephone, Plot and other articles alongwith ornaments weighing 11 tollas, 6 mashas and 2 ratti, as these were given to her by her parents at the time of her marriage.
7. On the other had, as right of appeal was not available to the defendant-husband against the judgment whereby the marriage was dissolved by the Judge Family Court, Mir Rustam was constrained to assailed the findings of the Judge Family Court through a writ petition.
8. The contentions raised on behalf of the petitioner-husband by his learned counsel are two-fold.
Firstly the issue framed on the allegation of cruelty, non-payment of maintenance allowance etc. Having been decided in favour of the petitioner-husband, the Family Court could not dissolve the marriage on the ground of khullah, that to on the basis of the same evidence. Secondly, keeping in view the evidence available on record, there was no justification for the dissolution of the marriage on the ground of 'khullah'.
9. The learned counsel for the respondent, Mst. Sabia Naz, argued that his client was entitled to the requisite decree of divorce at least on the ground of false charge of adultery.
10. I have sanctioned the respective arguments of the learned Counsel for the parties and with their help gone through the entire evidence of the case.
11. In this case, the trial Court has rightly drawn the conclusion that the plaintiff-appellant, Mst.
Sabia Naz, failed to prove that her husband had neglected her or failed to provide maintenance allowance or had failed to perform, without reasonable cause, her matrimonial obligations or that she was treated with cruelty in the past. Moreover, the evidence in respect of the charge of adultery is also not convincing. However, the trial Court has dissolve the marriage of the parties on the ground of 'khullah' because in the wisdom of the trial Court, the parties would not observe the limits of God. The contention raised on behalf of defendant-husband, Mir Rustam, is that as the grounds available under the Muslim Marriages Act, 1939, were not found available in the plaintiff-appellant, Mst. Sabia Naz, as such there was no justification for the trial Court to dissolve the marriage of the parties on Khullah'. In my view, the question of khullah' is to be considered on its on merits. Even if a wife is unable to prove the grounds available for dissolution of marriage as contained in the Muslim Marriages Act, 1939, the marriage could be dissolved on khullah'. If any authority is needed in support of this view, reference may be made to the case titled 'Mukhbar Ahmad v. Mst. Kalsoom and others (P.L.D. 1975 Lahore 805). Therefore, the writ petition filed by Mir Rustam on this ground, is not maintainable as such the same stands dismissed.
12. Now, I would take the appeal preferred by Mst. Sabia Naz, appellant whereby she has challenged the findings of the. Family Court whereby she was ordered to restore the plot. Frige, T.V. And other ornaments which she, according to the trial Court, had received in consideration of the marriage.
This is undisputed proposition that the wife is entitled to the dissolution of marriage on 'khullah' on restoration of what she has received in consideration of the marriage, in case the Court apprehends that the parties would not observe the limits of God. This view was confirmed by the Supreme Court of Pakistan in a case titled ' Khurshid Bibi v. Baboo Muhammad Amin' (P.L.D. 1967 SC 97).
13. In the present case, the plaintiff-appellant has admitted in her statement recorded on November 4, 1996 that she received against her dower amount, one set of ornaments besides six bangles and one ring. She has also admitted that she joined service in the year 1989. She has admitted that her salary is Rs.2,300/- per month. Out of this salary, she is paying Rs. 1,500/- as rent of the house under her possession. In these circumstances there was no justification for the trial Court to reject the evidence of Mir Rustam, the husband that he was meeting all the expenses of her wife and children. Because out of remaining Rs.800/-, Mst. Sabia Naz, appellant cannot maintain herself and her four children. Moreover, she cannot maintain her Accounts in three different Banks. In the same way, the best evidence available with her was, her father and brother to prove that Frige, T.V. And other ornaments besides the amount, maintained in different Bank Accounts by her, were provided to her by them at the time of her marriage as dowry. This evidence was not produced by her as such the trial Court was justified to presume that all these things have been provided to her by her husband. In these circumstances, the trial Court was justified under law to dissolve the marriage of the parties by directing the plaintiff-appellant to restore what she had received in consideration of the marriage from her husband.
14. During the pendency of the above-referred cases, I did my best to resolve the tension between the parties but, according to the appellant, Mst. Sabia Naz, she had developed extreme dis-liking for her husband, Mir Rustam. It would be, therefore, highly improper to force her to a life which would be quite repulsive to her. In these circumstances, the learned Judge Family Court.
Muzaffarabad has rightly dissolved the marriage of the parties on 'khullah'.
15. In view of above, I find no merit in this appeal which is also dismissed with no order as to the costs.