' The abovementioned appeals are directed against the common judgment and decree passed by Judge Family Court Kotli on September, 29th, 1998 as such these shall be disposed of by this single judgment.
2. The facts precisely stated are that Mst. Kousar Nisar presented a suit for dissolution of marriage before Judge Family Court Kotli on 7-6-1997, on the basis of false allegations of bad character, cruelty, nonpayment of maintenance and in-alternative on basis of 'Khula'. She also contended that the marriage of the parties was solemnized in lieu of dower Rs,5,000. The respondent refuted the allegations leveled in the plaint and submitted that the dower was fixed as rupees one lac twenty thousand which was paid through golden ornaments weighing twenty Tolas which are still in the possession of appellants. He further submitted that in case of 'Khula' the golden ornaments may be given to the respondent. The respondent also instituted a cross suit for the restitution of conjugal rights on 16-7-1997 and contended that three four months before the appellants has forcibly taken over the possession of his house, the jewellery, the dresses and other households worth rupees ten lacs and ha.> ousted him from the house. The trial Court consolidated both the suits and in the light of the pleadings of the parties the following issues were framed on 19-8-1997:- -- ' Issue No,1 . Whether the marriage of the parties was solemnized in lieu of dower Rs,5,000 if yes, what is its effect upon the suit? O.P.P.
' Issue No,2. Whether the defendant remained cruel with the plaintiff and has been levelling false allegations of bad character against her if yes, what is its effect upon the suit? O.P.P.
' Issue No,3. Whether the dower was fixed as rupees one lac at the time of Nikah which was paid through ornaments to the plaintiff if yes, what is its effect upon the suit? O.P.D.
' Issue No,4. In case issues Nos.1 and 2 are not proved and issue No,3 is proved as to whether the plaintiff is entitled for a decree of dissolution of marriage on basis of 'Khula'? O.P.P.
' Issue No,5. Whether the defendant is entitled to a decree on the basis of restitution of conjugal rights, if yes, then how and upon which conditions? O.P.D.
' Issue No,6. Relief.
3. The trial Court after recording the evidence and hearing the arguments passed a decree for dissolution of marriage in favour of appellant on basis of 'Khula' and ordered her to restore twenty Tolas ornaments received by her as dower. Resultantly, the suit for the restitution of conjugal rights was dismissed. Now the impugned order has been challenged through two appeals whereby Mst.
Kousar Nisar prayed that instead of 'Khula' a decree for dissolution of marriage may be passed on basis of false allegations of bad character and cruelty and in-alternative the amount of 'Khula' may be fixed as Rs,5,000 instead of restoration of twenty Tolas golden ornaments. In cross appeals Raja Muhammad Maqsood prayed that Kousar Nisar has failed to prove her case. Therefore, a decree for restitution of conjugal rights may be passed in his favour and in-alternative the amount of 'Khula' may be fixed as rupees eight lacs.
4. Mr. Imtiaz Ahmed, the learned counsel for the appellant Kousar Nisar, vehemently argued that the appellant has proved the issue of cruelty and false allegation of bad character but the trial Court did not pay any heed to this aspect of the case and dissolved the marriage on basis of 'Khula'. He further submitted that when the marriage could be dissolved on the basis of other grounds available under the Dissolution of Muslim Marriages Act, 1939 then the alternative ground of 'Khula' cannot be invoked. It was also argued by the learned counsel for the appellant that in case of grant of 'Khula' the respondent is entitled to Rs,5,000 only which was paid to the appellant as dower money but the trial Court erroneously fixed the amount of 'Khula' as twenty Tolas golden ornaments which cannot be upheld. The learned counsel further pointed out that the respondent has taken the plea in his appeal that he may be restored rupees eight lac as consideration for 'Khula' but the said plea was never setup in his pleadings before the trial Court, therefore, the respondent is not entitled to any relief in this matter. In support of his contentions he relied upon the following case-law:---
(i) 1993 SCR 335.
(ii) 1993 SCR 340.
5. The learned counsel for the respondent, Sardar Ghulam Mustafa Khan, contended that the appellant failed to prove the plea of cruelty and false allegations of bad character. In this respect he referred the statements of Abid and Akbar witnesses for appellant and submitted that Abid is a chance witness who did not witness any cruel behaviour of the respondent. He also criticized the statement of Akbar witness and contended that his evidence to. The extent of cruelty and false allegations is hearsay which cannot be relied upon. He further submitted that it has been admitted on the part of the appellant that the golden ornaments were given to her which are still in her possession. He also argued that in case the Court is convinced to grant the decree on basis of 'Khula' then the amount of 'Khula' may be enhanced and the Bank accounts, the Households and the other gifts etc., may also be restored in favour of the respondent. In support of his contentions he referred 1999 M LD 1763.
6. I have considered the respective arguments of the learned counsel for the parties and examined the record and the evidence with utmost care. In this case, the trial Court has rightly arrived at the conclusion that the plaintiff/appellant Mst. Kousar Nisar failed to prove that her husband had neglected her and failed to provide alimony to her or he treated her with cruelty. Furthermore, the evidence in respect of the charge of false allegation of bad character is also not reliable. Abid Hussain, a witness for Kousar Nisar, appellant, deposed that the respondent was talking with Raja Nisar that the appellant has developed illicit relations with one Mallick Khadim. The perusal of the whole of the statement of. Witness discloses that he is a chance witness and not telling the truth.
He has also stated that he never witnessed the cruel behaviour of the respondent with the appellant. Raja Muhammad Ilyas witness for appellant deposed that he never witnessed the cruel behaviour of the respondent rather once respondent allegated the appellant that she lives with undesirable persons. The other witness of the appellant, Muhammad Akbar, also stated that he never witnessed the cruel behaviour of the respondent or the respondent never levelled any allegation of bad character against the appellant. The witness admitted that his evidence about cruelty and false charge of bad character is hearsay. Thus, the appellant miserably failed to prove her case to the extent of non-payment of maintenance or cruel behaviour of the respondent and charge of bad character. The sole statement of the appellant is not sufficient to prove her case on this score.
7. As far as the ground of 'Khula' is concerned there is no much conflict about the dissolution of marriage on the basis of 'Khula' between the parties rather in a way the respondent has accepted his fate and is convinced that he will not lead a happy life with her, therefore, the parties are very much concerned about the amount of 'Khula'. I very much agree with this contention of the learned counsel for the appellant that the respondent has set-up a case in his written statement that in case of. 'Khula' the respondent is entitled for golden ornaments weighing twenty Tolas which were paid as dower to the appellant at the time of marriage ceremony. Therefore, he cannot be permitted to take a contradictory stand and not allowed to ask for rupees eight lac as consideration for 'Khula', as contended by him in para. Three sub-para. (2) of his appeal. It is admitted principle of law that if a party seeks relief before Appellate Court which is different and contradictory from the case already set-up in his pleadings before the trial Court than that contradictory stand cannot be looked into and such party is not entitled to any relief on the said ground. In this view of matter the respondent cannot be allowed to take a contradictory stand about the consideration of 'Khula'. In this respect reference can be made to the cases reported as Abdul Mallick and others v. Muhammad Latif and others (1993 SCR 335) and Muhammad Amin v.
Muhammad Younas (1993 SCR 340).
8. The appellant has submitted in her suit that the marriage was solemnized in lieu of dower Rs,5,000 but she never mentioned as to whether the dower money was paid to her or not but when she appeared as witness before the trial Court she categorically admitted this fact that Rs,5,000 dower was additional amount with the ornaments. She submitted that in shape of ornaments she was given a Neckles, ear rings, six bangles, one Ticka ( Id ) and three rings worth rupees forty two thousand. She also admitted this fact that all of the abovementioned ornaments are in her possession. It is also admitted principle of Islamic Jurisprudence that when a marriage is dissolved on the basis of 'Khula' the wife is supposed to restore the dower money, the property and all other gifts etc., which she had received from her husband at the time of marriage. In the. Light of the statement of the appellant there is no necessity to look into the evidence of the respondent because, the fact proved need not to be proved, and in case of the admission on the part of the plaintiff/appellant, the appellant shall restore all the ornaments which she received in consideration of her marriage. Furthermore, Muhammad Akbar, a witness for the appellant, has also stated that at the time of marriage the Golden ornaments, six bangles, one Neckles, two ear rings, three rings and two nose rings were given to the respondent which are still in her possession.
Qudrut-ulla Khan and Muhammad Ramzan witnesses for respondent tried to support the respondent's version but need not to be discussed in detail as held earlier.
9. It is also relevant to note that the appellant has stated that the price of the ornaments was Rs,42,000 in year 1982. If the price of golden ornaments is calculated according to the market value of year 1982, the weight of the ornaments seems to be twenty bolas. This fact also finds ample support from the statement of the respondent recorded on 3-9-1998 wherein he categorically stated that he had given twenty bolas ornaments to the appellant at the time of marriage ceremony. In these circumstances the trial Court has rightly fixed the amount of 'Khula' and has very rightly dissolved the marriage of the parties on the ground of 'Khula' because it is quite evident that the parties could not lead a happy life within the limits ordained by Almighty Allah. As stated earlier, in a way the respondent has admitted this position and did not challenge the dissolution of marriage on basis of 'Khula', therefore, I see no cogent reason to upset the impugned judgment and decree. The appellant Kousar Nisar shall deposit twenty Tolas ornaments with the Court up to 29th of October, 1999. In case of default her suit for dissolution of marriage shall stand dismissed.
' The upshot of the above discussion is that both the appeals fail which are hereby dismissed.