' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the Shariat Court, dated 29-9-1,999, whereby the appeal filed by the appellant, herein, seeking the reduction of amount of 'Khula' was dismissed.
2. The brief facts of the case are that Mst. Kousar Nisar, appellant herein, brought a suit for dissolution of marriage on the ground of non-payment of maintenance, cruelty, false charge of bad character etc.; in alternate she sought decree on the basis of 'Khula' on payment of Rs,5,000.
Raja Muhammad Maqsood respondent herein, filed a cross-suit for conjugal rights alleging that the appellant had left his house with household articles and golden ornaments weighing twenty tolas which were given to her as dower. Both the suits were consolidated. The Judge Family Court held that it was no more possible for the purpose to live together within the limits fixed by the God and, thus, dissolved the marriage on the return of golden ornaments weighing twenty tolas which were allegedly given to Ms. Kousar Nisar, the appellant herein. Both the parties went up in appeals before the Shariat Court who dismissed both the appeals observing that golden ornaments of twenty tolas are admitted by the 'appellant, herein, to have been given to her by one of her witnesses, Muhammad Akbar. Consequently, the Shariat Court passed the decree for dissolution of marriage on the basis of 'Khula' in terms that the appellant, herein, should deposit the ornaments weighing twenty tolas in the Court by 29-10-1999, failing which her suit for dissolution would stand dismissed.
3. The appellant, herein, filed petition for leave to appeal contending that only Rs,5,000 were paid to her as dower and that she had proved that the respondent had been treating her with cruelty which entitled her to the dissolution of marriage on the said ground. However, the counsel for the respondent, at the time of hearing the petition for leave to appeal, contended that as the appellant, herein, failed to deposit the ornaments as was directed by the Shariat Court, her suit for dissolution automatically stood dismissed. Consequently, the leave was granted only to consider the question as to what is the effect of failure of the appellant to deposit the ornaments weighing twenty tolas with the Court.
4. It has been contended by Mr. Muhammad Sharif Tariq, the learned counsel for the appellant, that once the Court comes to the conclusion that parties can no longer live as husband and wife within the limits ordained by the God and the marriage is dissolved on the basis of 'Khula', the noncompliance of the condition of 'Khula' i,e,, the depositing of the ornaments or returning of benefits would not affect the decree for the dissolution of marriage. Thus, according to the learned 'counsel for the appellant, mere failure to deposit the ornaments, within the time fixed by the Court would not nullify the factum of the dissolution of marriage. He has cited the following authorities in support of his contention:--- ' In a case reported as Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others (PLD 1983 SC 169), while dealing with the question as to what would be the effect of the non-compliance of the direction of the Court regarding the return of benefits received by the wife, it was observed as under:--- "As regards the third submission of the learned counsel for the petitioner that dissolution of marriage by 'Khula', cannot stand whilst an inquiry on facts with regard to the terms on which it is to be granted is yet to take place, it appears plausible but is not quite sound. It was held in the case of Moonshee Buzul-ulRahim v. Luteefutoon Nisa (1) that non-payment of stipulated consideration for 'Khula' 'does not invalidate the dissolution of marriage by 'Khula. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God and the dissolution of marriage of khula 'must take' place' the inquiry into the terms on which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself."
' In a case reported as Muhammad Yasin v. Rafia Bibi alias Rafia Sultana and another (PLD 1983 Lah.377), it was observed that in case of dissolution on the basis of 'Khula' subject to return of benefits received by the husband by a certain date the failure of wife to comply with the directions would have no bearing on the dissolution of marriage because returning of benefits merely creates a civil liability against the wife. While. Dealing with the proposition it was observed as under:-- "The Court should satisfy its conscience as to whether or not the wife is genuinely determined to get her marriage dissolved by returning the benefits of the husband. If the Judge Family Court arrives at the conclusion that no reconciliation was possible, that the wife was determined to get the marriage dissolved and that not dissolving the marriage would amount to forcing or compelling her to live in a hateful union with the husband then he must dissolve the marriage on the basis of Khula. The conclusion in his judgment and decree would be dissolution of marriage but any condition to the effect that the dissolution of marriage would be subject to return of benefits by a specific date, otherwise the suit of the wife would stand dismissed, would have no bearing on and would not at all effect the decree of dissolution of marriage, for the return of benefits would create only a civil liability."
5. Ch. Muhammad Azam Khan, the learned counsel for the respondent has argued that decree on the basis of 'Khula' was conditional one and the appellant has failed to deposit the ornaments weighing twenty tolas in pursuance of the direction given by the Shariat Court, her suit for dissolution would stand dismissed. He has referred to the following authorities in support of his contention:-- ' In a case reported as Muhammad Akram v. Mst. Majeed Begum (1985 CLC 2626): it has been held that dissolution of marriage on Khula was permissible on the completion of offer by wife to return the benefits received by her and accepted by the husband. However, if the offer made by wife is not accepted by the husband or wife declines to return the ornaments admittedly given to her at the time of marriage, it is in the discretion of the Court to finally decide the matter regarding the return of benefits.
' In a case reported as Mst. Hanifa Begum v. Hassan Shaikh and 3 others (PLD 1983 SC (AJ&K) 163), it was held that in view of provision contained in Order XX, Rule 14, C.P.C., the failure by the preemptor to deposit the pre-emption money would automatically dismiss the suit.
6. We have given due consideration to the arguments advanced by the ?Learned counsel for the parties. The authorities cited by the learned counsel are distinguishable and do not help him. It may be stated that in view of the dictum of the Supreme Court of Pakistan and the view taken in the case referred to above by the Lahore High Court, non-compliance of wife to return benefits received by her to her husband within the stipulated time would not adversely affect the factum of the dissolution of marriage on the basis of 'Khula'. In view of the finding of the Courts below that spouses can no more live within the limits ordained by the God, the marriage stood dissolved and return of benefits by wife to husband remains merely liability of civil nature which can be enforced by the husband through appropriate means. Thus, we are of the view that the failure of appellant, herein, to deposit the ornaments of twenty tolas with the Court by a specific date would not affect her dissolution of marriage. However, we extend the time for depositing the ornaments of twenty tolas with the Shariat Court on or before 29-7-2000 as was directed by the Shariat Court.
' The appeal is hereby dismissed with no order as to the costs.