1. ' The above captioned appeal has been directed against the judgment and decree of Judge Family Court, Mirpur, passed on 31st December, 2001, whereby a decree for dissolution of marriage on basis of `Khula' was passed in favour of the respondent.
2. ' The precise facts giving rise to the present appeal are: that the appellant and respondent were married on 20-11-1992 in lieu of dower Rs,5,000 at Bankhurma, District Mirpur. It was alleged that she applied for a visa of U.K. In favour of the appellant but the same was refused by the British Embassy. After that the appellant started teasing her and made her life miserable by asking her that she does not like that the appellant should live with her in U.K. She further averred that because of the ill-treatment of the appellant she decided to obtain divorce from him. For the purpose she secured a decree for dissolution of marriage from the County Court in U.K. But when the appellant received a notice from the Court of U.K., he filed a suit for the restitution of conjugal rights before Family Court, Mirpur, which was decreed by the apex Court of Azad Jammu and Kashmir vide its judgment dated 30-3-2001. She also submitted that the respondent is an educated lady and cannot settle in Pakistan with the appellant at any cost, who is a greedy person and wants to grab money from her, therefore, the respondent has entertained a fixed aversion and severe hatred against the appellant. The respondent prayed that a decree for dissolution of marriage on basis of `Khula' be passed in her favour. The suit was resisted by the appellant and it was submitted that the suit for dissolution of marriage cannot be filed through an attorney. It was further averred that a decree for dissolution of marriage, passed by County Court U.K., was not taken into consideration by the apex Court of Azad Jammu and Kashmir and a decree for restitution of conjugal rights was passed in favour of the appellant, thus, the suit for dissolution of marriage is not maintainable. The appellant refuted the allegation of cruelty and submitted that a decree on basis of `Khula' could also not be passed in her favour because spouses still can live together within the limits prescribed by `Sharia'. In the light of the pleadings of the parties, the following issues were framed:--
(i) Whether the plaintiff is entitled to decree for dissolution of marriage on basis of `Khula'? O.P.P.
(ii) Whether a decree passed by a British Court about the dissolution of marriage is still valid, if yes, what is its effect upon the suit? O.P.P.
(iii) Whether a suit for dissolution of marriage on basis of `Khula' can be instituted through an attorney, if yes, what is its effect upon the suit? O.P.P.
(iv) Relief.
3. On completion of the case, the trial Court arrived at the conclusion that it has become impossible for the spouses to live together within the limits prescribed by Almighty Allah. Consequently, the marriage was dissolved on the basis of `Khula' on payment of Rs,5.000 vide its judgment dated 31st December, 2001. It is the aforesaid judgment which has been assailed through the instant appeal.
4. ' Arguing on behalf of the appellant, Liaquat Ali Khan, Advocate, the learned counsel, has raised the following points:--
(i) That the non-compliance of the mandatory provisions of sections 10 and 12 of Azad Jammu and Kashmir Family Courts Act, 1993, (hereinafter to be referred as the Act) during the trial is fatal upon the case of the respondent, therefore, the impugned judgment is nullity in the eyes of law.
(ii) That in spite of an admission on the part of the attorney for the respondent that at the time of `Nikah' ceremony the appellant had given the respondent a golden necklace weighing three `Masha' alongwith 26/27 pairs of dresses, the trial Court did not order the respondent to return one same to the appellant as consideration for `Khula'. According to him, if at all the marriage has to be dissolved on basis of `Khula', the respondent be ordered to return three `Masha' of gold alongwith 27 pairs of dresses.
5. ' In support to the arguments reliance was placed on 1996 SCR 281. On the other hand, Miss Ghazala Haider Lodhi, Advocate, the learned counsel for the respondent, has controverted the arguments raised by the learned counsel for the appellant. She has submitted that the compliance of proceedings under sections 10 and 12 of the Act were not necessary because the marriage of the spouses has already been dissolved by a competent Court of U.K., thus, there is no chance of reconciliation or compromise between the spouses. The learned counsel has also contended that it is admitted between the parties that at the time of Nikah' ceremony the dower was fixed Rs,5,000 which was rightly fixed as consideration for 'Khula' by the Court below, whereas the appellant did not mention in his written statement about handing over of any gold or dresses to the respondent, therefore, the appellant is not entitled to any further benefit in shape of gold or dresses. The learned counsel has further maintained that the respondent is a lawyer, who works in U.K. Whereas appellant is an illiterate person. The learned counsel also pointed out that after `Nikah', `Rukhsati' had not taken place and by filing a suit against her and by dragging her in litigation she has developed fixed aversion against the appellant, therefore, not it has become impossible for the spouses to lead a happy life within the limits ordained by Almighty Allah. The learned counsel has defended the impugned judgment on all counts. In support of her arguments she has cited the following authorities:--
(i) PLD 1985 SC (AJ&K) 6, (ii) PLD 1990 Lahore 158, (iii) PLD 1990 Karachi 239, (iv) 1991 CLC 2057 and
(v) PLD 1996 Lahore 394.
6. ' I have carefully considered the arguments addressed at the Bar and perused the record. First of all this issue has to be decided as to whether the failure of making efforts for reconciliation of the parties at the stage of pre-trial hearing as required by section 10 as well as making efforts to effect a compromise after the close of evidence of both the parties, as required by section 12 of the Act, has vitiated the. Trial. A perusal of the file of Family Court shows that after filing the written statement by the appellant, the trial Court fixed the next date for compromise proceedings vide its order dated 12-6-2001 but it reached the conclusion that reconciliation between the spouses is not possible, vide its order dated 6-8-2001, thus, the trial Court proceeded further. Similarly, after closing the evidence of both the parties, the Family Court made another effort to effect the compromise between the spouses, vide its order, dated 20th November, 2001, but again arrived at the conclusion that respondent has developed fixed aversion against the appellant and she does not want to live with him at any cost, vide its order, dated 3rd of December, 2001. In view of the abovestated position, the provisions postulated under sections 10 and 12 of the Act were fully complied with by the Family Court.
7. ' It will be useful to mention here that the Act does not take away the right of a counselor an agent to appear and act for or on behalf of his client, therefore, a bar cannot be created for a lady not to be represented through her duly authorized agent or an Advocate (PLD 1996 Lah. 394). Even otherwise non-compliance of sections 10 and 12 of the Act do not justify to set aside a decree for dissolution of marriage passed by a Family Court because it is a mere irregularity. It has also been recorded in unequivocal words by the Family Court that the respondent does not want to live with the appellant because of severe hatred and fixed aversion and she wants annulment of her marriage on basis of `Khula'. Therefore, keeping in view the facts and overall circumstances of the case, when the respondent has already tried to obtain a decree for dissolution of marriage from Middlesbrough's County Court (U.K.) and even after a decree for restituiion of conjugal rights passed by apex Court of Azad Jammu and Kashmir, she does not intend to live with the respondent, the non-compliance of sections 10 and 12 of the Act would not vitiate the proceedings of Family Court. Reference can be made to a case reported as Andleeb Sahir Butt v. Family Judge, Bagh and another (1996 SCR 281), it was observed at page 286 of the report as under:-- "It follows from the above-cited authorities that non-compliance of sections 10 and 12 of the Family Courts Act is at the most an irregularity which does not nullify the judgment and decree of the Family Court, especially so when it is evident from the circumstances of the case that attempts for reconciliation, even if made would have been futile."
8. The next point which needs consideration is as to whether the appellant is entitled to receive golden necklace weighing three `Masha' alongwith 26/27 pairs of dresses. It was vehemently argued by the learned counsel for the appellant that Abdul Ghafoor, Attorney of the respondent, has admitted during the cross-examination that at the time of `Nikah' ceremony appellant had given a golden necklace alongwith 26/27 pairs of dresses to the respondent but the Family Court failed to consider the aforesaid admission and did not order to return the aforementioned articles to the appellant in lieu of. `Khula' alongwith Rs,5,000 dower money, whereas it is settled law that when a marriage is dissolved on basis of `Khula', the wife has to return back all those benefits and articles which were given to her by the husband at the time of marriage. The contention appears to be well-founded and requires serious consideration. The perusal of the statement of Abdul Ghafoor, an uncle and attorney of respondent, reveals that he has admitted in clear words that respondent has received a golden locket weighing three `Masha' alongwith 26/27 pairs of dresses, during the cross-examination before the Court. Although the appellant has not taken this pleas in his written statement and as C.P.C. Is not applicable to the proceedings before the Family Court, following the real spirit of 'Qur'an' and construing the classical incident of Sabit-Bin-Qais that when Judge or Qazi reaches the conclusion that the spouses cannot live together within the limits prescribed by God, Qazi can order of separation by `Khula' by ordering that whatever the wife has obtained from her husband in shape of dower or otherwise that has to be returned back to her husband, therefore, an omission on the part of appellant not to claim golden necklace weighing three `Masha' alongwith 26/27 pairs of dresses cannot debar him from receiving the same as consideration for `Khula' at the time of dissolution of marriage (1992 SCR 62).
9. ' The learned counsel for the respondent vehemently contended that according to the facts and overall circumstances of the case, it has become impossible for the spouses to lead a happy life and the spouses will not be able to live within the limits ordained by Almighty Allah, particularly when the respondent is an educated lady working as an Advocate in U.K. Whereas appellant is semi-illiterate person and after the `Nikah' ceremony `Rukhsati' had not taken place and they never lived together as husband and wife. She further agitated that the respondent is living in U.K. And appellant in Pakistan, even after a decree for restitution of conjugal rights she is not ready to live with the appellant and she has openly declared that it has become impossible for her to live with the appellant, is sufficient to establish that due to an acute disparity of social and intellectual status between the spouses, their relations have travelled beyond repair and they cannot lead a happy life within the limits ordained by Almighty Allah, it will be better to dissolve the marriage tie. I do not want to comment upon this argument in detail because the learned counsel for the appellant has not challenged the dissolution of marriage on basis of Khula' and the appellant has only pressed for the gold and the dresses in consideration for `Khula'.
10. I am cognizant of the fact that a decree for dissolution of marriage was passed by the apex Court on 30-3-2001 but after the period of one month and three days the respondent again chose to present a suit for annulment of her marriage on basis of `Khula'. It is settled position of law that a wife cannot be compelled to live with her husband even if he obtains a decree for restitution of conjugal rights and she on the basis of fresh facts and circumstances, can prefer a suit for dissolution of marriage on basis of `Khula' even though a decree for restitution of conjugal rights was passed against her. She is also not debarred from taking up the plea of `Khula' again in the subsequent suit even her previous suit would have been dismissed as a wife could at any time develop hatred against her husband and bring on record circumstances making it impossible for the spouses to live within the limits of Allah. Thus, plea of `Khula' being a recurring cause of action could not be hit by the principle of res judicata. (1983 CLC 133 and PLD 1983 Lahore 442).
11. ' For the foregoing reasons, I partly accept this appeal to the extent that the respondent shall also return the golden necklace weighing three `Masha' and 27 pairs of dresses alongwith Rs,5,000 dower money, as already fixed by the trial Court, to the appellant as consideration for `Khula'.
12. However, decree for dissolution of marriage in favour of the respondent is maintained. The appeal is disposed of in the manner indicated above.