' Through this appeal, the judgment and decree passed by Judge Family Court, Mirpur on April 11, 1996, has been called in question, whereby the suit for dissolution of marriage filed by appellant, herein was decreed on payment of 'Khula' to the respondent to the tune of Rs,25,000.
2. The facts precisely stated are that Shabbir Ahmed, respondent, brought a suit before Judge Family Court, Mirpur, on 21st November, 1994, for the restitution of conjugal rights and averred that the spouses were married to each other on 25th of October, 1991 and in March, 1993 appellant went to see her parents and took away golden ornaments worth Rs,25,000 and expensive dresses worth Rs,10,000 but now she has refused to live with him. Subsequently, the appellant brought a cross- case seeking dissolution of her marriage on various grounds including cruelty, maintenance etc. On 26-12-1994. In alternative, she sought a decree on payment of Khula'. Both the suits were consolidated by the trial Court on 29-12-1994 and eight issues were framed in the light of the pleadings of the parties. After completion of the trial both the suits were disposed .Of by single order. The learned Judge Family Court decided Issues Nos.1, 3, 4, 5 and 6 against respondent and Issue No,2 was decided against appellant but Issue No,7 was decided in favour of the appellant.
Consequently, the trial Court passed a decree in favour of appellant on payment of Khula' to the respondent to the tune of Rs,25,000. Feeling aggrieved, the appellant partially challenged the impugned judgment to the extent that the consideration for Khula' has erroneously been fixed as Rs,25,000 instead of Rs,550, the dower money.
3. Mr. Abdul Ghafoor Qureshi, the learned counsel for the appellant vehemently contended that it is admitted on the part of the appellant that Rs,550 were fixed as dower money and received by her but the trial Court erroneously held that the respondent failed to prove the issue, thus, finding upon issue No,1 was based upon misconception of the trial Court. He also criticized the findings of the trial Court on issue No,3 and argued that in support of the said issue the respondent produced three witnesses Muhammad Qayyum (P.W.1), Muhammad Bostan (P.W.2) and Muhammad Mushtaq (P.W.3), but the trial Court relied upon the testimony of Mushtaq in an illegal manner who is an interested witness. In his estimation the respondent failed to produce any evidence in support of the issue. He submitted that the golden ornaments and dresses etc., are in possession of the respondent. Thus, the consideration for Khula' can only be fixed Rs,500 dower money which was received by the appellant and not more than that.
4. While replying the arguments of the learned counsel for the appellant, Muhammad. Reaz Tabassum, the learned counsel for the respondent argued with vehemence that the appeal has been instituted beyond the period of limitation, which is liable to be dismissed He also referred the testimony of appellant and argued that the appellant has admitted I his statement that she had received the golden ornaments. Therefore, the trial Court has rightly held that the price of golden.
Ornaments Rs,25,000 may be returned to respondent by the appellant. He maintained that the consideration for Khula' lies with the discretion of the Court, which cannot challenged. In support of his contentions has referred PLD 1985 SC (AJ&K) 60.
5. In the light of the points raised at the Bar, I have carefully gone through the recording of the case and the impugned judgment . A the very outset, it will be appropriate to dispose of the point of limitation. The impugned judgment was recorded on 4-11-1996 and the appeal was filed on 19-12- 1996. It has been averred in para.7 of the appeal that after deduction of the time consumed for obtaining copy of the impugned judgment the appeal has been presented within the prescribed period of limitation. A copy of the judgment annexed with appeal shows that the appellant moved an application to obtain the copy of impugned judgment on 16-11-1996 but the copy was prepared on 17-12-1996. On 19-12-1996 the appellant deposited the requisite fee, obtained the copy and filed the instant appeal. It transpires from the record that under Rule 43 of the Azad Jammu and Kashmir Shariat Court (Procedural) Rules, 1982 no action was taken by the relevant authority and the appellant was not informed for any deficiency or incompletion of the application and a statement in Form 7 showing the incomplete or improper application for supply of copy was not fixed on the notice board of the Court. In such state of affairs and in absence of the direction of the copyist to take delivery of the copy on a particular date, it cannot be said that the appellant was negligent in getting the copy. (PLD 1960 BJ 90). It is also evident from the record that the concerned copying clerk kept mum and did not prepare the copy for one reason or another. He did not inform the appellant for filing fee or to make up the deficiency. Thus, the period which is to be excluded for the purpose of limitation for filing .An appeal would be reckoned from the date of the application because the appellant cannot be made to suffer for the !Aches and action by any of the department connected with the administration of justice. In this respect, reference can be made to a latest unreported judgment of Supreme Court of Azad Jammu and Kashmir, titled Mst. Shaheen Akhtar v. Muhammad Alam and Muhammad Alam v. Mst. Shaheen Akhtar Appeals Nos. 61 and 62 of 1999, dated 28-6-1999. Therefore, I cannot accept this argument of the learned counsel for the respondent that the appeal has been filed beyond the prescribed period of limitation because the appellant is entitled to exclusion of the period from the date of making of the application up to the date of the delivery of the copy.
6. I am in full agreement with this contention of the learned counsel for the appellant that the findings of the trial Court on issue No,1 are against facts of the case and the evidence led by the parties. The respondent did not mention about the fixation of dower money in his plaint, but the appellant categorically stated in para.1 that the dower was fixed as Rs,550. It was also averred in para.3 of the plaint that she was ready to pay the dower money. The respondent has admitted the fixation of dower money in his written statement filed on 29-12-1994 but contended that the dower was paid at the time of marriage ceremony. He also deposed in like manner in his statement before the Court, recorded on 28-5-1995. The appellant admitted this fact that the dower money was fixed as Rs,550, but she stated that it was taken back by the respondent. Abdul Khaliq (D.W.1) deposed that dower money was fixed as Rs,550 but it was not paid in his presence. Muhammad Reaz (D.W.2) did not state anything about this issue but Zakir Hussain (D.W.4) real brother of the appellant clearly stated in cross-examination that dower was fixed as Rs,550 which was paid at the time of the marriage ceremony, but he did not support the appellant that the dower money was taken back by the respondent. In this view of the matter, the respondent has proved the issue No,l. The learned counsel for the appellant also accepts this position and no objection was raised by the opposite counsel in, this respect. In these circumstances, it is held that dower money was fixed as Rs,550 which was paid to the appellant at the time of the marriage ceremony.
7. It was stated by the respondent in para.3 of his plaint that when in March, 1993 the appellant went to her parents to celebrate Eid-ul-Fitar she took away golden ornaments worth Rs,25,000 and expensive dresses worth Rs,10,000. The allegation was refuted by the appellant and it was contended that the respondent forcibly ousted her from his house after snatching the, jewelry and dresses, while she as pregnant. The same plea was taken by the parties in the suit filed for the dissolution of marriage. Now we advert to the evidence led by the parties on this issue Muhammad Qayyum (P . W . 1) and Muhammad Bostan (P.W.2) did not state a single word in support of the respondent's version. The trial Court has relied upon the statement of Muhammad Mushtaq (P.W.3) without consideting the fact that P.W.3 is closely related to the respondent and is really interested.
Muhammad Mushtaq (P.W.3) deposed that he was told, by the respondent that the appellant has left his house and refused to come back. If the witness does not know about the departure of the respondent how he can be a witness of the fact that at the time of the departure she took away golden ornaments, dresses and cash Rs,10,000. It will be relevant to note here that the respondent did not state in his plaint that the appellant took away cash Rs,10,000 with golden " ornaments and dresses, but Muhammad Mushtaq also stated about the cash of Rs,I0,000 and the respondent also improved the same in his statement before the Court, recorded on 213-5-1995. Furthermore, it also transpires from he statement of respondent that he failed to prove the allegation because he has clearly stated in his cross-examination that when the appellant went to his parent's home for the last time, he himself accompanied her on the motorcycle, but the appellant was not having any box etc., rather the respondent had its own bag on the motorcycle. On the contrary, it was denied by the appellant and, her witnesses that the appellant took away any golden ornaments and dresses etc. It was categorically stated by the appellant that the respondent had snatched away the, golden ornaments and dresses from her and when she came her parent's home she was only wearing a dress upon her person and did not bring anything from the respondent's house. The relevant portion of the statement reads as under:- {{URDU TEXT}} ' In such state of affairs, the trial Court did not appreciate the evidence in its true perspective and recorded its findings on issue No,3 in an Illegal manner, which cannot be sustained.
8. It will not be out of place to mention here that the impugned judgment and decree was not challenged by the respondent, therefore, he cannot raise an objection as to whether a decree on the basis of Khula' can be passed in favour of the appellant or not. It is an admitted principle of law that when the conscious of the Court is satisfied that the spouses cannot live within the limits ordained by Almightly Allah, the Court can dissolve the marriage on basis of Khula' and in this respect it is to be kept in mind that all the benefits which had been received by the wife have to be restored back to the husband, No doubt it lies with the discretion of the Court to fix the amount of Khula' and for the purpose the Court has to consider as to whether the husband has given any land, house, garden or cash at the time of 'Nikah' ceremony. If it is proved then the Court shall order the wife to restore all benefits to the husband which were received by her otherwise nothing more than the dower shall be paid to the husband unless the spouses agree with each other. (PLD 1986 Azad J&K 73).
9. As it has been mentioned above that the respondent .Has paid to the respondent dower money Rs,550 and he has failed to prove his allegation of taking away the golden ornaments, expensive dresses and cash Rs,10,000 by the appellant. Therefore, the trial Court treated the issue in a most perfunctory manner and ignored some material pieces of evidence. In this view of the matter, the impugned judgment to the extent of fixation of consideration for Khula' is erroneous which cannot be maintained.
' In the light of what has been stated above, 1 accept the appeal and partly amend the impugned judgment and decree to the extent that the appellant shall pay Rs,550 consideration for Khula' instead of . Rs,25,000.