2012 C L C 1386

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

LIAQUAT HUSSAIN----Appellant

Versus

ZIL-E-HUMA and another----Respondents

Civil Appeal No.47 of 2011, decided on 7th February, 2012.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.14---Dissolution of marriage on ground of Khula'---

Considerations---Plaintiff wife (married when she was minor) fled suit for
dissolution of marriage against defendant (husband) on the ground of option of
puberty, cruelty and in the alternative on the ground of 'Khula'---Family Court
passed a decree for dissolution of marriage on ground of 'Khula' without any
consideration---Validity---If a wife would fail to prove all the grounds taken by
her in the plaint for the dissolution of marriage, even then a decree on the
basis of 'Khula' could be passed in her favour, keeping in view the peculiar
facts and circumstances of the case---
Record, in the present case, had proved that the plaintiff could not prove the
factum of cruelty, but had averred in the plaint that she could not live with the
defendant at any cost---Plaintiff had also levelled certain allegations against
the character of the defendant---Keeping in view the difference of age between
spouses, the court below had rightly found that the plaintiff had developed a
fxed aversion against the defendant; and that it was impossible for them to live
a happy life within the limits ordained by Allah and rightly passed a decree for
dissolution of marriage on ground of 'Khula'---When a tie of marriage was
annulled on the ground of 'Khula', the wife had to pay the husband full or part
of the consideration, she had received from her husband at the time of the
contract of marriage as determined by the court---Plaintiff in the present case
had admitted that dower amounting Rs.1,82,781 was fxed at the time of
marriage which was paid to her in shape of ornaments; she however, averred
that said amount was snatched away by the defendant which was in his
possession---Defendant had refuted the claim of plaintiff and contended that
said ornaments were still in her possession-- -Burden of proof of said fact was
upon the plaintiff, but she failed to produce the cogent, sufcient and reliable
evidence to discharge the
burden of proof---Evidence of the plaintiff was vague and fctitious which could
not be relied upon---Held, that the ornaments were still in possession of
plaintiff which had to be returned to the defendant---
Impugned decision and decree was set aside to the extent that the defendant
was entitled to receive Rs.1,82,781 the dower amount as consideration for
'Khula'---Order accordingly---[2004 CLC 1186 overruled].

2004 CLC 1186 overruled.

Makhdoom Hussain v. Mst. Habiba Begum and others 1993 SCR 330;
Muhammad Khalil v. Shazia Iqbal and 2 others 2006 CLC 1033; 2007 CLC
1771 and Muhammad Shafq v. Mst. Gul Taj PLD 2007 SC (AJ&K) 56 rel.
Liaquat Hussain Mughal for Appellant.
Raja Muhammad Arif Khan for Respondents.

ORDER
IFTIKHAR HUSSAIN BUTT, J.--- This appeal has been fled against decision
and decree of Judge Family Court Kotli dated 30-9-2011, whereby a decree for
dissolution of marriage was passed in favour of the respondent against the
appellant.
The facts precisely stated are that Mst. Zil-e-Huma, respondent No.1 herein,
presented a suit for dissolution of marriage on ground of option of puberty,
cruelty and in alternative on ground of 'Khula' on 18-9-2009 before Judge
Family Court Kotli. She averred that she was married to the appellant on 23-3-
2009 while she was a minor whereas the appellant is an old man, who is a
habitual drunker. During the period of population he treated her with cruelty
and has been physically maltreating her with a hunter. After one month of the
marriage, the appellant treated her with cruelty, ousted from his house and
threw her in a barren place and also threatened her to do away with her life
while showing a dagger. As soon as the appellant disappeared, she arrived at
the road side and came to her father. The appellant fled his written statement
and refuted the averments of the plaint. He also stated that at the time of
marriage ceremony, the respondent was 18 years old and all the ornaments
are in her possession. The appellant also fled a suit for restitution of conjugal
rights and reiterated the same version taken in his written statement in the suit
for dissolution of marriage. The respondent also fled her written statement and
repeated the same version, which was taken in her plaint in the suit for
dissolution of marriage. The learned Court below consolidated both the suits
and framed four issues on 22-1-2010.

The respondent entered the witness box and produced Allah Ditta and
Muhammad Ashiq as her witnesses. On the other hand, the appellant
appeared in the witness box and produced Haji Abdul Rasheed and
Muhammad Azeem as his witnesses.
After completion of the proceedings, the learned Judge Family Court passed a
decree for dissolution of marriage on ground of 'Khula' without
any consideration vide its decision dated 30-9-2011. It is the aforesaid decision
and decree which have been assailed through the instant appeal.

Liaquat Hussain Mughal, the for the appellant vehemently argued that the
respondent has miserably failed to prove the ground of cruelty and she also
failed to prove the circumstances necessary for grant of 'Khula' even otherwise
if a marriage is dissolved on basis of 'Khula', it is incumbent upon the Court to
order the wife to return all the benefts but the Court below did not order to
return ornaments given in lieu of dower. The learned Counsel fnally submitted
that the impugned decision and decree may be set aside or in alternative
respondent be ordered to return the ornaments worth Rs.1,82,781/- to the
appellant.
On the contrary, Raja Muhammad Arif Khan, the learned counsel for the
respondents argued that respondent No.1 has proved her case while
producing sufcient and reliable evidence. He further contended that the
appellant treated her with cruelty during the period of population and he also
did not claim Zar-e-'Khula' while fling his written statement; therefore, he is not
entitled to claim ornaments given in lieu of dower from the respondent
especially when the same was snatched away by him during the period of
population. The learned counsel defended the impugned decision on all counts
and placed reliance on 2004 CLC 1186.
I have very carefully attended to the submission made at Bar in the light of the
material available on the record.
At the very outset it will be appropriate to mention here that if a wife fails to
prove all the grounds taken in the plaint for the dissolution of marriage even
though a decree on basis of `khula' can be passed in her favour keeping in
view the peculiar facts and circumstances of the case. In this regard reliance
can be placed upon a case reported as Makhdoom Hussain v. Mst. Habiba
Begum and others (1993 SCR 330). Wherein the following principle was
enunciated at page 332 of the report:- "It may be stated that if the main issues
were decided against the respondent, the Court was competent to order the
dissolution of marriage on payment of `khula' if the circumstances of the case
so warranted. No hard and fast rule can be laid down as to when the Court
should order the dissolution of marriage on the basis of 'khula' it depends upon
the circumstances of each case."

The respondent has not fled any appeal against the impugned decision and
decree therefore, the fndings of the Court below have attained fnality and it has
been proved on the record that the respondent failed to prove the factum of
cruelty, however, after taking into consideration the evidence of the parties on
the record, the statement of the respondent No.1 including the averments
made in the plaint whereby she has deposed that she cannot live with the
appellant at any cost. She has also leveled certain personal allegations against
the character of the appellant. Similarly, keeping in view the difference of age
between
spouses, the Court below has rightly held that the respondent has developed a
fxed aversion against the appellant and it was impossible for them to lead a
happy life within the limits ordained by Almighty Allah.

I cannot subscribe to the view of the learned Judge Family Court that the
appellant has not put forward any claim in his written statement for restoration
of the benefts or payment of golden ornaments worth Rs.1,82,781/- paid in lieu
of dower therefore, he is not entitled to receive any consideration. The learned
Judge Family Court has not cited any authority of the Superior Courts in
support of his fndings and recorded the impugned decision in a hasty manner
without applying its judicial mind, thus, not sustainable. In case titled
Muhammad Khalil v. Shazia Iqbal and 2 others 2006 CLC 1033 it was
observed as under:---
"The dissolution on the basis of `khula' is the power vested in the Court to be
exercised in the cases where it is found that the spouses cannot live together
and cannot maintain the limits ordained by the Almighty Allah. The marriage in
such circumstances is dissolved by the Court normally on the condition of
repayment of the dower amount received by the wife, unless there are
compelling circumstances to withhold it and order dissolution on payment of
`khula'. It is not the demand of the husband for return of the dower money
which empowers the Court to dissolve marriage in lieu of the dower amount,
but the obligation of the Court to order so if the Court comes to the conclusion
that husband is not at fault but wife is compelled to seek dissolution on 'khula'.
There may, of course, be circumstances where the Court may direct the
dissolution without return of the dower money, for example, the dissolution of a
long standing union, the destituteness of the wife to return the dower amount
etc. In the case in hand, there is no such reason. As stated above the
respondent voluntarily contracted marriage with the appellant knowing that he
had earlier divorced two wives leaving behind children from both as admitted at
bar, and she has not been able to prove cruelty etc., alleged against the
appellant, hence in the circumstances of the case the learned Judge of the
Shariat Court was not right in ordering the dissolution on `khula' without
repayment of the dower amount."

In view of the above dictum of apex Court the authority 2004 CLC 1186 cited
by the learned counsel for the respondents stands overruled.
It will not be out of place to mention here that when a tie of marriage is
annulled on the ground of 'khula' the wife has to pay to the husband full or part
of the consideration, she has received from her husband at the time of the
contract of marriage as the Court may determine" 2007 CLC 1771. This view
fnds further support from a case titled Muhammad Shafq v. Mst. Gul Taj PLD
2007 SC (AJ&K) 56 at page 59 the observation made at of the report may
usefully be reproduced:---
"It is the principle of Islam that where it is apprehended that the spouses
cannot keep together within the limits ordained by Almighty God then
the marriage has to be dissolved after directing the wife who claims dissolution
of marriage to return the benefts whatever she has derived from her husband.
This right is provided through Verse 229 of Sura Baqara".

Now the question arises how much consideration may be fxed for dissolution
of marriage on the basis of `Khula'. It has been admitted by the respondent
No.1 in the plaint that dower amounting Rs.1,82,781/- was fxed at the time of
marriage which was paid to her in shape of ornaments. However, she averred
in paragraph No.9 of the suit that the ornaments were snatched away by the
appellant which are in his possession whereas the appellant refuted her claim
and contended in his written statement that the ornaments are still in
possession of respondent No.l.

Allahditta, a witness for the respondent No.1 did not state about the snatching
away of the ornaments in support of claim of the respondent No.l.

Muhammad Ashiq, another witness and father of the respondent No.1 deposed
that the ornaments were snatched away by the appellant.
The respondent No.1 also testifed that some ornaments were already
snatched away by the appellant and remaining ornaments were also taken
away by him when she was ousted from the house.
On the other hand, the appellant and his witnesses Haji Abdul Rasheed and
Muhammad Asim testifed that the ornaments are still in possession of the
respondent No.l.
A careful perusal of the evidence of the parties reveal that the burden of proof
of the aforesaid fact was upon the respondent No.1 but she failed to produce
the cogent, sufcient and reliable evidence to discharge the burden of proof.
Her evidence is vague and fctitious which cannot be relied upon thus, it is held
that the ornaments are still in her possession which have to be returned to the
appellant. It may be mentioned here that the respondent No.1 remained
populated with the appellant for a period of one month only, as has been
averred in paragraph (5) of the plaint.

For the reasons listed above, I partly accept this appeal set aside the
impugned decision and decree to the extant that the appellant is entitled to
receive Rs.1,82,781/- the dower amount as consideration for 'khula'. Thus, it is
ordered that the respondent No.1 shall pay the ornaments worth Rs.1,82,781/-
to the appellant as consideration for `khula'.
The appeal is disposed of in the manner indicated above. No order as to costs.

H.B.T./6/Sh.C.(AJ&K) Appeal partly allowed.