Mst. RAHMAT vs ADDITIONAL DISTRICT JUDGE-II, MUZAFFARGARH and 2

SYED MANSOOR ALI SHAH, J.---On 27-1-2010 respondent No,3 was proceeded against ex-parte because the process server reported that the said respondent had refused to receive the notice and thereafter the notice was affixed on the property of respondent No,3. Respondent No,3, therefore, had notice for 27-1-2010 and was proceeded ex parte due to his unexplained absence.

2. On 27-1-2010 the said date the petitioner submitted that she does not have a counsel. Hence, on Court's request Pirzada Niaz Mustafa, Advocate came forward to voluntarily assist the Court and plead the case of the petitioner. As the counsel required time to prepare, the case was posted for today i,e, 28-1-2010.

3. Pirzada Niaz Mustafa, Advocate submitted that the petitioner had filed suit for dissolution of marriage on several grounds including physical maltreatment on the part of respondent No,3 who was a gambler and took jewellery of the petitioner and used it for his gambling. It is also stated in the plaint that the said respondent abused the petitioner and she, therefore, suffered from mental and physical agony. Hence, she developed immense hatred and aversion against the said respondent. However, while deciding the suit vide order dated 14-12-2005, after framing the issues the marriage was dissolved on the ground of Khula and the petitioner was directed to return 4 kanals of land as Badl-e-Khula as well as the maintenance allowance for the period of Iddat.

Against the said order dated 14-12-2005 the petitioner preferred an appeal before the learned Additional District Judge, Muzaffargarh, which was dismissed upholding the order of the learned Judge Family Court, on 12-1-2008.

4. Counsel submitted that, firstly, suit for dissolution was not on the basis of Khula' and second submission was that even if it was considered to be a suit for dissolution on the basis of Khula', the land measuring 4 kanals was not given to the petitioner as a part of dower. He referred to the order of the learned Additional District Judge dated 12-1-2008 wherein it is clearly stated that the said land was given to the petitioner as a part of settlement in a suit for maintenance earlier. Counsel further submitted that the said land was not, by any stretch of imagination, part of dower and could not have been returned to the respondent.

5. I have heard the arguments of the counsel for the petitioner and perused the record with his assistance.

6. Perusal of the plaint shows that the petitioner had raised ground of cruelty in her plaint as a result thereof she has also stated that it was difficult for her to live with respondent No,3. Issues Nos.1, 3 and 4 were framed regarding grounds of dissolution. The petitioner failed to prove the ground of cruelty as her own witness did not depose in her favour and, therefore, the marriage was dissolved on the ground of Khula. Therefore, on this count, the claim of the petitioner is dismissed.

7. The main question in this case is whether land measuring 4 kanals which was given to the petitioner as a part of the settlement in a suit for maintenance could be returned to respondent No,3 under the provision of section 10(4) of the Family Courts Act, 1964 (West Pakistan Act Nc.XXXV of 1964).

8. Proviso to section 10(4) of the Act reads:-- "Provided that notwithstanding any decision or judgment of any Court or Tribunal and Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.' (Emphasis supplied.).

9. It is clear that only Haq Mahr or dower received at the time of marriage is to be returned by the petitioner in case of dissolution of marriage on the ground of Khula'.

10. As defined in Principles of Mahomedan Law by D.F. Mulla (Chapter XV) Haq Mahr or dower means:- "Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage."

11 Neil B.E. Baillie in A Digest of Mahomedan Law writes: "Dower is defined to be the property which is incumbent on a husband either by reasons of its being named in the contract of marriage or by virtue of the contract of marriage, as opposed to the usufruct of the wife's person".

(Chapter VII on DOWER): It goes on further to state that: "It is indispensable in marriage contracts that the dower be specified in such manner as to remove all doubts and uncertainty". (Chapter V of MAHR OR DOWER).

12. According to shorter encyclopedia of Islam, by H.A.R.Gibb and J.H. Kraness, "Mahr is in Muslim Law the gift which the bridegroom has to give the bride when the contract of marriage is made and which becomes the property of the wife."

13. Therefore, any consideration or benefit or gift given to the wife during subsistence of the marriage but not as a part of consideration of the contract of marriage does not qualify to be haq Mahr (dower). Dower is that specific consideration that is provided for in the Nikah Nama at the time of marriage. The land in question transferred to the petitioner through a settlement in a Court of Law much later after the marriage, as well as the maintenance allowance granted to the petitioner do not fall within the ambit of Haq Mahr as provided in the proviso to section 10(4) of the Family Court Act, 1964.

14. Objection was raised before the subordinate appellate Court that no appeal was competent against the order of dissolution of marriage on the ground of Khula' as per section 14 of the Family Courts Act, 1964. In order to reduce unnecessary litigation between the parties and considering that the petitioner has the option to challenge the order of the Family Court before this Court in writ jurisdiction and also considering that I have reviewed both the orders. I treat this writ petition to be against the order dated 14-1-2005 passed by the Family Court. The said order suffers from illegality and material irregularity as discussed above and is, therefore, set aside to the extent of return of 4 kanals of land and return of maintenance allowance.

15. Order dated 12-1-2008 passed by the Addl. District Judge, Muzaffargarh is also set aside being a nullity, as appeal was not maintainable under section 14(2) of the Family Courts Act, 1964 (West Pakistan Act No,XXXV of 1964) against order dated 14-1-2005.

16. This petition is disposed of in the above terms.