Dr. NOSHEEN QAMAR vs SHAH ZAMAN KHATTAK and another

ORDER

1. Syed Jamshed Ali, J.--The petitioner, a disillusioned wife, seeks leave to appeal against the judgment dated 25.11.2002 of the learned Peshawar High Court. She has been liberated from the marital tie but at the cost of her dower amounting to Rs. 200,000/-. She had filed a composite suit claiming dower, articles of dowery, maintenance and had also sought dissolution of marriage on the ground of physical and mental cruelty, non payment of maintenance, non performance of conjugal rights and also that he had taken another wife without petitioner permission. Her claim to dower, besides a cash component of Rs. 200,000/-, was 15 tolas of gold ornaments and half share in house on Plot No. 423 situated in the Armoured Colony, Manki Road, Nowshera. The respondent- husband had also filed a suit for restitution of conjugal rights. His defence to the suit of the petitioner-wife was that despite his best efforts, the petitioner was not prepared to .perform her conjugal obligations and wanted him to live in the house of her father. As far as claim of the petitioner-wife to the cash dower is concerned, the position taken by the respondent in the written statement, was that the dower was only 15 tolas of gold ornaments which were given to the petitioner at the time of marriage. It is significant to note here that he did not own that amount of Rs. 200,000/- and half share in the house aforesaid was settled as dower, although the Nikah nama so clearly recited.

2. 2.As far as 15 tolas of gold ornaments and the share in the house is concerned, the observation of the learned trial Court was that the petitioner may file suit in the Civil Court for recovery thereof.

3. The learned trial Court while granting decree for dissolution of marriage did not so state that the basis thereof was "khula".

4. 3.As far as decree for dower of Rs. 200,000/-- is concerned, the respondent filed an appeal before the learned District' Court, which we were informed, is pending. However, as far as decree for dissolution of marriage is concerned, the respondent challenged the' same in Constitutional Petition No. 1321/2000. At the time of hearing, he confined the challenge to the decree to the extent of dower money on the plea that the marriage had been dissolved on the ground of "khula", therefore, the petitioner was not entitled to the dower amount. The plea of the respondent husband was sustained vide the impugned judgment. It was also observed that the petitioner had not challenged finding on Issue No. 9 regarding cruelty.

5. 4.The learned counsel for the petitioner vehemently contended that the learned High Court misread the record in-as-much-as that the trial Court while answering Issue No. 9 against the petitioner had not recorded its reasons and the High Court did not consider the evidence. It is also vehemently contended that dower money is not a benefit arising out of marriage and, therefore, could not have been forfeited by the learned High Court. It is next maintained that in face the learned High Court has set aside the decree for dower, although appeal of the respondent was pending before the learned District Court.

6. 5.On the other hand, the learned counsel for the respondents has placed reliance on the finding on Issue No. 9, the reasoning of the learned trial Judge as well as the learned High Court to contend that in the circumstances there could not be any other inference except that learned trial Court had dissolved the marriage on the ground of "khula". He relied upon Mst. Khurshid Bibi Vs. Baboo Muhammad Amin (PLD 1967 SC 97), Mst. Balqis Fatima Vs. Najm-ul-Ikram Qureshi (PLD 1959 (W.P.)

7. Lahore 566) and Muhammad Siddiq Vs. Mst. Ghafuran Bibi (PLD 1971 SC 192).

8. 6.We have considered the submissions made by the learned counsel for the parties and have carefully gone through the record.

7. We will like to observe that Section 10 of the Muslim Family Courts Act, 1964 was amended on 1.10.2002 which empowers the Family A Court to dissolve the marriage on the ground of khula at the pre-trial hearing but in that case, the wife would not be entitled to dower. However, in this case, the decree was passed on 16.5.2000. Therefore, that amendment not being retrospective will not apply.

9. 8.After hearing the learned counsel for the parties and our own study of the subject, which we found fascinating, we are of the view that, inter alia, the following questions arise in this case for determination:-- (i)Whether the finding of the learned trial Court that Issue No. 9 was not proved was not in accordance with the evidence on the record and the reasoning of the learned trial Court itself; (ii)Whether in the circumstances of the case could it not be said that the learned trial Court had not dissolved the marriage on the ground of "Khula "?

10. (iii)Whether the learned High Court did not err in law by observing that the petitioner had not challenged finding on Issue No. 9, because the decree was in her favour which she could, under Rule 22 of Order XLI of the Code of Civil Procedure, defend even on the ground decided against her?

11. (iv)Whether the following principle was not attracted in the facts and circumstances of the case?: "If the wife has been compelled by the ill-treatment of the husband to seek for a divorce, it is unlawful for him to take an indemnity. And if the man has forced the woman to accept the khula, a talak will take place without any liability to pay the indemnity ".

12. (Radd-ul-Mukhtar Vol. II, P. 928 noted by Syed Ameer Ali in Mohammedan Law Vol. II, Re-print 1965 at page 469).

13. (v)Whether dower is not a benefit arising out of marriage to be restored to the husband in case of dissolution of marriage on the ground of "Khula" and whether rule laid down in Mst. Saiqa Vs. Addl.

14. District Judge etc. (PLJ 2003 Lahore 309) and Manawar Iqbal Satti Vs. Mst. Uzma Satti and 2 others (PLJ 2003 Lahore 760) propounds correct law?

15. (vi)Whether in the absence of specific demand by the respondent for indemnity in the form of waiver of the cash dower of Rs. 200,000/- the learned High Court could giant him the indemnity and whether the rule laid down in Mukhtar Ahmad Vs. Mst. Ume Kalsoom and another (PLD 1975 Lahore 805) and Noor Muhammad Vs. Judge, Family Court, Burewala, District Vehari and another (PLD 1989 Lahore 31) does not lay down the correct law?

16. (vii)Whether the decree of cash dower could be collaterally impeached before the High Court during pendancy of appeal before the District Court?

9. Leave is accordingly, granted to consider the above questions. Parties will be at liberty to file additional documents.