BABAR ISMAIL vs Mst. SHEEBA BASHIR and another

ORDER

1. MUNIB AHMED KHAN, J.--- This Petition has been filed against the order, dated 13-2-2006 in which the learned Judge has given his reasons as follows:-- "In my humble view according to recent amendment in Family . Court Act, if the pre-trial proceedings are failed the plaintiff is entitled for dissolution of decree, accordingly the suit of the plaintiff is decreed and the Nikah of the defendant over the plaintiff is dissolved, but so for the remaining part of prayer i.e. for recovery of dower amount is concerned it is impossible to decide this prayer without recording the evidence in order to reach true and correct conclusions about actual position of it. Accordingly it is ordered that issue be framed to such extent only and the parties should bring their evidence to prove their contentions."

2. According to learned counsel for the petitioner since the marriage has been dissolved on the ground of Khula, therefore, question of dower amount does not arise and the learned Courts has wrongly ventured upon to frame the issue in respect of payment of any dower amount.

3. On the other hand, learned counsel for the respondent has stated that according to 'proviso' to section 10(4) of the Family Courts Act, 1964, it was mandatory for the Courts to dissolve the marriage either it is asked for on the ground of Khula or on the basis of any ground enumerated in the dissolution of Muslim Family Marriages Act, 1939 and the Family Court has rightly dissolved the marriage notwithstanding the fact that the dissolution was prayed on the ground available under the Act, 1939. The specific grounds taken are that the petitioners has taken second wife, non- maintenance and cruelty and for recovery of dower amount. He has further submitted that the Family Court has rightly dissolved the marriage at the first instance and has kept the case for framing of issue in respect of payment of dower. He has relied upon PLD 2006 Lah. 158.

4. I have perused section 10(4) of Family Courts Act, 1964 and the citation quoted by learned counsel and I am of the opinion that dissolution in the proviso to section 10(4) says about the dissolution of marriage by way of Khula and in that case the dower amount (Haq Mahar), if already paid to the wife, then to be restored to the husband and if unpaid then it is not to be paid to the wife as the wife has to forego that amount in lieu of Khula which is granted. The interpretation of learned counsel for the respondent that the words "dissolution" mentioned in proviso does not include Khula seems to be incorrect as no other procedure has been provided for grant of Khula under the law. Khula itself is a kind of dissolution, according to Islamic Law, Khula is to be granted when the dower amount is restored or to be foregone. The learned counsel has not interpreted the citation PLD 2006 Lah. 158 as the same is also in consonance with the observations made hereinabove.

5. In the circumstances, the learned trial Court has wrongly reached the conclusion as mentioned above as either he would have decided as to whether the case is for Khula then he would have granted the decree for Khula and in that event wife was not entitled to dower amount or he would have kept the case for dissolution on the ground on which it is requested for and thereafter, after framing the issue and recording evidence decree would have been passed.

6. In the circumstances the order, dated 13-2-2006 is set aside and case is remanded back to the Family Court for decision afresh keeping in view above observations.

7. The petition stands disposed of.