ABDUL MAJID Versus RAZIA BIBI

A husband by this writ petition has called in question the judgment by a learned Family Court whereby the suit for dissolution of marriage filed by respondent No. I was decreed on the ground of khula`.

2. There were two suits ; one for dissolution of marriage filed by the respondent and the other for restitution of conjugal rights instituted by the petitioner. Both were consolidated. On the pleadings of the parties, following issues were framed :-

"(i) Was the attitude of the defendant cruel towards the plaintiff?

(ii) Is the defendant of bad character and associates with women of ill repute?

(iii) Has the defendant misappropriated the ornaments and clothes of the plaintiff ?

(iv) Is the plaintiff entitled to the dissolution of marriage on the ground of khula`. If so on what terms?

(v) Is the defendant entitled to the restitution of conjugal rights prayed for?

Issues Nos. 1 to 4 were decided against the wife. On Issue No. 4 it was held that she was entitled to dissolution of marriage on ground of khula`. As to the return of benefits (terms of khula'), it was held that the respondent would not be entitled to demand the return of her dowery nor would ask for maintenance. It may be mentioned here that the respondent had filed a separate suit for a declaration that the alleged remission of dowery of Rs. 2,000 by her in favour of the petitioner was due to fraud. This suit was separately decided (dismissed) and while mentioning this fact in the impugned judgment the learned Judge observed that if in appeal her suit qua dower is decreed, she would not claim the payment of Rs. 2,000 as dower money-this also, it was remarked, would be treated as a term of khula`. As a decree for dissolution of marriage was passed, therefore, the suit for restitu?tion of conjugal rights was dismissed.

3. Learned counsel for the petitioner has raised the following contentions :-

(1) That the issues on merits of other allegations like cruelty including beating, association with women of ill-repute and misappropriation of ornaments and clothes were decided against the respondent, there was no justification to decide the issue of khula` in her favour ;

(2) that the mere desire on the part of the respondent to seek khula` was not enough, learned Judge should have found independent circum?stances to grant a decree on this basis ;

(3) that no notice to the Chairman of the concerned local council was given by the wife as required by section 8 read with section 7 of the Family Laws Ordinance, therefore, the proceedings before the learned Family Judge were without jurisdiction ;

(4) that the decree is defective for the reason that the return of benefits obtained by the respondent during wedlock, has not been made a condition precedent for khula`. Learned counsel in this behalf relied on some of the observations made in Alst. Khurshid Bibi v. Baboo Muhammad Amin P L D 1967 S C 97.

4. In fact first three issues relate to the same aspect of the matter namely, alleged cruel behaviour of the petitioner towards his wife. Issues Nos. 2 and 3 are different facets of Issue No. 1. As discussed in the impugned judgment, there was not enough evidence to come to a conclusion beyond any reasonable doubt that the petitioner was habitually cruel to the respondent, and there being technical requirements qua these issues, thus the same were decided against the respondent.

5. The reasoning in the judgment does not show that the learned Judge had no other circumstance in his mind so as to come to an independent conclusion that there is such a hatred between the parties that they would not be able to keep the limits of God. I do not agree with the learned counsel that the finding of khula` has been granted merely on the expression of desire by the respondent. Relationship between the spouses and their families was considered with due objectivity under Issue No. 4. Learned Judge noticed the following circumstances as having marred the wedlock-

(a) that the petitioner had no love for the respondent :

(b) that the respondent hated the petitioner and on no account she was ready to live with him ;

(c) that if she is forced to live with him, she would run away;

(d) that the petitioner had, as his own witness, complained that the father of the respondent had in December 1969, got him (the petitioner) insulted in a police station ;

(e) that there have been several Panchayats and the case was also taken to the Union Committee, but no conciliation could take place between the parties ;

(f) that the petitioner bad instituted proceedings against the father of the respondent accusing him of having kept illicit arms ;

(g) that the parties had fought a litigation on the question of alleged remission of dower by the respondent in favour of the petitioner. It may be mentioned here that as noted in the opening para. of the impugned judgment, the petitioner was accused by the respondent of having defrauded her into making a remission of the dower and when she learnt about it, she was given a beating and was turned out of the house ;

(h) that the facts and circumstances of the case had brought about satisfaction of the learned Judge to the effect that the parties would not be able to keep the limits of God ; and lastly

(i) that the parties had lost all faith in each other.

6. Here I may also mention that according to the facts noted in the impugned judgment the parties had lived together as husband and wife for a period less than a year and there is no issue from them which might have proved as a binding force. Moreover, it is not denied that the learned Family Court complied with the provisions of the Family Courts Act where?under it was necessary to make efforts at conciliation between the parties at two stages. Obviously these stages must have been gone through and despite that the parties have not reconciled. This petition is pending in this Court since 1971 and there is not even an assertion that there is any chance of the parties reconciling their differences. The breach, it appears, is deep and permanent and the finding of fact by the learned Family Court that it would not be possible for the parties to keep the limits of God if they were forced to live as husband and wife, is unexceptionable. Keeping all the circumstances in view I do not find any force in the first two contentions raised by the learned counsel.

7. It is mentioned in the impugned judgment that copy of the decree passed by the learned Family Judge was sent to the Chairman. As held in case of Muhammad Ishaque v. Ch. Ehsan Ahmad, Judge, Family Court and another, in Writ Petition No. 174/1974 and other connected cases decided on 18-12-1974, there is no justification for adopting the view that a notice' under section 8 read with section 7 of the Muslim Family Laws Ordinance is necessary before the institution of the suit. The third argument of the learned counsel thus fails.

8. I agree with the learned counsel for the petitioner that one of the conditions for grant of khula` as enjoined by Law of Islam and as held by the superior Courts of Pakistan is that if the wife has obtained any tangible returnable benefits from the husband, she should be made to return the same as a condition precedent on grant of khula` in case the husband does not forego the same but asks for their return. Learned counsel tried to argue that the demand on the part of the husband is not necessary. The observa?tions relied upon by the learned counsel, made by their Lordships of the Supreme Court, in the case by Khurshid Bibi (at page 121 of the report) read as follows :-

"The pleadings of the parties show that the dower, whatever its amount was, had not yet been paid to the wife. She merely expressed her willingness to relinquish her dower, but the husband said, he was not agreeable even, on this condition, to grant her khula`. He did not plead that he had actually paid her the dower. Though, according to the Hedaya, it is abominable on the part of the husband to have more thon the dower itself, in a case of separation by khula`, yet if he insists, it is legally permissible for him to demand something more than the dower, and to the extent that he might have been out of pocket, in respect of gifts given to the wife on marriage. he may, in law. demand restitution. This would necessitate an enquiry into the facts and the final decision as to what compensation must be paid by the wife for her release, must rest with the Court. I would, therefore, allow the appeal and send back the case to the trial Judge with the direction that the parties may be permitted to lead evidence as to what gifts, if any, and of what value, were given by the husband, to the wife, on the occasion of the marriage, so that if the husband wants to take more than the dower, the condition may be imposed on the wife to pay the additional sum, expended by the husband on her, to the grant of khula` "

9. It would show that a demand in the nature of insistence from the side of the husband is a condition precedent, for the learned trial Judge, directing the return of gifts from the wife to him as a condition of khula'. In the case before their Lordships, as it appears from some important facts noted at page 149 of the report, the question of return of benefits was specifically included in the 4th issue, but the parties had not led any evidence thereon. It is also noted that on the record was the assertion of the wife in the plaint that the husband has not incurred any expense on marriage. And the husband had in reply to this assertion claimed that "he incurred an expense of Rs. 2,000 on marriage." Thus it is clear that in the case before their Lordships the husband had made a claim/demand with regard to the benefits having been conferred by him on the wife at the time of marriage in the form of an ascertainable amount. In this case, it is an admitted position that the husband (the petitioner) had not made any claim that he had conferred any benefits opt the respondent either at the time of marriage or thereafter which he wanted to be returned. About the dower it is admitted that the same had not been paid and the petitioner's case during the trial was that the respondent had already remitted the same. The proceedings before this Court are in its writ jurisdiction and not in first or second appeal. Even if a fresh trial is directed to be held on the question of benefits, it would always be open to the respondent to contend that the petitioner had not made any claim/demand qua any benefits. His belated claim in this behalf, would be treated as an improvement and it would not be possible for the Court to give any new finding of fact in his favour. The claim to the return of benefits, it is agreed by the learned counsel, can be waived by him. If that is so, waiver can also be spelled out of conduct. If a husband during a trial does not make any claim with regard to the return of benefits despite the knowledge that the Courts have ruled that he can claim the return, this conduct would show that he has not conferred any benefits or he would not seek the return thereof ( may be on account of their meagre ascertainable value as is the case in so many marriages in our rural society. Keeping in view all these aspects, I would not like to exercise discretionary writ jurisdiction so as to set aside the impugned decree on the ground that the trial Court did not hold a specific enquiry as to the return of benefits, when the husband never asked for it.

10. In the light of the above discussion, as none of the arguments raised by the learned counsel has succeeded, therefore, this petition is dismissed but there shall be no order as to costs.

K. B. A. ?????????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.