Mst. Uzma Satti filed a suit for dissolution of marriage on 22-11-2000 and also a suit for recovery of dowry on 25-12-2000 against the petitioner Munawar Iqbal. Both the suits were contested. While the suit for dissolution of marriage was controverted on the ground that the plaintiff was staying away from the defendant and not performing her marital obligations without just cause, the suit for dowry was resisted on the ground that no dowry was in fact given and that whatever articles were purchased by the plaintiff, they were purchased through the money obtained by the mother of the plaintiff as loan from the father of the defendant Munawar Iqbal Satti.
2. The learned Judge, Family Court, consolidated both the suits and following consolidated issues were framed:-- Consolidated Issues
(1) Whether the plaintiff is entitled to decree for dissolution of marriage on the grounds mentioned in the plaint, if so, on what terms and conditions? OPP
(2) Whether the plaintiff is entitled to recover dowry articles and ornaments in accordance with list appended with the plaint? OPP
(3) Relief
3. The plaintiff appeared as P. W.1 and also produced Shahid Khan son of Muhammad Idrees as P.W.2. On the other hand, Munawar Iqbal defendant appeared as his own witness as D.W.1 produced Haji Iftikhar Ahmed Abbasi D.W.2 and Allah Ditta father of the defendant as D.W.3.
4. After considering the oral and documentary evidence, on the record the learned trial Court decreed the suit for dissolution of marriage on the ground of Khula' subject to the condition that the respondent/were shall return the sum of Rs.62,000 received by her as Haq Mehr as Zar-e- Khula'. As regards the suit for dowry, the Judge, Family Court came to the conclusion that although no reliance can be placed upon the list of dowry attached by the plaintiff/respondent with her suit, nevertheless as dowry articles of the value of Rs.97,000 were purchased by the mother of the plaintiff/respondent (although it was alleged that the said money was given by the father of the petitioner as loan to the mother of the respondent), a decree in the sum of Rs.65,000 was passed in favour of the respondent after deducting the value of Rs.32,000 on account of gold ornaments held to be in possession of the plaintiff. The judgment and decree of the Family Court is dated 30-5- 2001.
5. Mst Uzma Satti, filed an appeal against the said judgment and decree challenging the fixation of Rs.62,000 to be returned as Zar-e-Khula' while Munawar Iqbal petitioner. Assailed the decree of the Family Court to the extent of recovery' of the value of dowry articles against him. The learned Appellate Court accepted the appeal of the respondent and set aside the direction of the Family Court with respect to the return of Rs.62,000 as Zar-e-Khula'. The appeal of the petitioner, was, however, dismissed and the decree of the Family Court with respect to the recovery of dowry amount in favour of the respondent was upheld.
6. Raja Ali Akbar, Advocate for the petitioner has contended that impugned judgment and decree in appeal was liable to be set aside as it was based upon misreading and non-reading of evidence on the record as also upon misconstruction of law. It is contended that the learned Appellate Court was wholly incorrect in coming to the conclusion that the assertion of the respondent that the "Haq Mehr" which was paid to her was later snatched by the petitioner went uncross-examined and was thus admitted. In this respect the learned counsel referred to the following suggestion put to the respondent:--
7. It is contended that in this view of the matter, it could not be presumed that the jewellary which was given to the respondent in lieu of dower was snatched from her and that it was not with the respondent. It was urged that the direction of the trial Court for return of Rs.62,000 as Zar-e-Khula' was unexceptionable and the reversal of the same by the learned Appellate Court was based on conjecture alone.
8. On the question of dowry, it was contended that the petitioner had been able to prove through cogent evidence that whatsoever articles were purchased by the respondent or her mother were purchased by money given to the mother of the respondent by father of the petitioner as a loan.
The learned counsel for the petitioner also referred to Ordinance LV of 2002 promulgated on 1-10- 2002 to contend that section 10 of the Family Court's Act, 1964 has since been amended and that in case the Family Court finds that reconciliation has failed in a suit for dissolution of marriage, it shall pass a decree for dissolution of marriage forthwith subject to the return to the husband of the Haq Mehr received by the were. It is submitted that in this view of the matter also the petitioner was entitled to restoration of Haq Mehr.
9. Conversely, the learned counsel for the respondent contended that in respect of the dowry both the lower Courts have come to a concurrent finding of fact that the respondent is entitled to the same and that the said concurrent findings of fact cannot be reversed in exercise of writ jurisdiction. As regards the return of Zar-e-Khula' in consideration for dissolution of marriage, it is contended that the learned Appellate Court was correct in refusing Zar-e-Khula' to the petitioner.
10. Arguments have been heard and record perused.
11. As far as the question of dowry is concerned, suffice it to say that both the Judge, Family Court as well as the learned Appellate Court has evaluated the evidence on the record and have arrived at a just and fair conclusion. Both the lower Courts were correct in disbelieving the contention put forward by the petitioner that the dowrv articles were purchased through the money provided by the father of the petitioner as loan. Indeed there is nothing on the record to substantiate any such claim of the petitioner.
If anything this contention which finds mention not only in the written statement but also throughout the evidence of the petitioner only goes to show that the dowry was given by the respondent to the petitioner at the time of marriage. As to the value and quantum of the same, both the learned lower fora have applied their conscious mind and have arrives at conclusion which is neither perverse nor fanciful or arbitrary. This Court in exercise of writ jurisdiction is loathe to interfere in the concurrent findings of fact. The contention of the petitioner in this respect is repelled. The, question of the return of Zar-e-Khula' in lieu of dissolution of marriage through Khula' has also been given anxious consideration. Whereas, the Judge, Family Court found that Haq Mehr had been paid to be respondent, it considered it lawful for granting dissolution of marriage through Khula' that the Haq Mehr be restored to the petitioner in lieu of Khula'. The learned Appellate Court reversed this finding on the ground that the respondent had been able to prove through her un- cross---examined statement that Haq Mehr paid to her was later snatched by the petitioner. It was in this view of the matter that the learned Appellate Court came to the conclusion that there was nothing to restore after the respondent was deprived of her Haq Mehr by the petitioner.
12. I am afraid none of the considerations which found favour with the Family Court as well as the learned Appellate Court can be sustained. Haq Mehr is in its essence not a benefit which could be restored to the husband in consideration for the grant of Khula divorce. A benefit or a gift is always something which is gratuitous and voluntary in nature which is bestowed by one upon another without any consideration. When viewed in this perspective Haq Mehr cannot be regarded as such a benefit or gift. In fact, Haq Mehr is a sine qua non of valid marriage and is a condition without which a lawful union between the mart and were cannot come into being. Without this element of Haq Meher the union between the spouses cannot be a legal union and can lead to self-destroying and hazardous legal consequences. Thus, restoration of Haq Meher cannot be a valid consideration for Khula'. It is for this reason and not for the one advanced by the Appellate Court that it is held that the respondent is entitled to Khula' divorce without the restoration of Haq Mehr.
13. The reliance placed upon the amendment to Family Courts Act, 1964 affected through Ordinance LV of 2002 dated 1-10-2002 suffice it to say that this amendment being substantive in nature and not merely procedural as far as it relates to the right of Haq Mehr shall only operate prospectively and not retrospectively. There is no merit in this writ petition which is hereby dismissed.