MUHABBAT HUSSAIN Versus MST. NASEEM AKHTAR

1. SARDAR SAID MUHAMMAD KHAN, CJ. ‑‑ ‑This appeal has been directed against the judgment of the High Court dated 28‑2‑1991, v/hereby the judgments and decrees of the Courts below were maintained and the appeal filed by the appellant, herein, was dismissed.

2. Brief facts giving rise to the present appeal are that Mst. Naseem Akhtar, respondent, filed a suit for dissolution of marriage on tile basis of cruelty, non‑payment of maintenance, non‑performance of marital obligations and on the basis of `khula'. A cross suit for restitution of conjugal rights was filed by the appellant. It was averred by respondent No.1 that she was married to the appellant and dower was fixed as Rs.32.50. She levelled various allegations against the appellant and in alternative sought the dissolution of marriage on the basis of `khula' on payment of Rs.32.50, the sum ,which was allegedly paid as dower. Both the suits were consolidated and were tried together. All the Courts below decreed the suit for dissolution on the basis of `khula'. In the High Court, it was contended that the circumstances of the case did not warrant the inference drawn by the Courts below that the spouses could not live as husband and wife within the limits ordained by God and, thus, this was not a fit case where marriage should have been dissolved on the basis of `khula'. It was further contended that if at all the marriage was to be dissolved on the basis of `khula', the ornaments weighing eighteen and a half Tolas which allegedly were given to the respondent at the time of marriage should have been ordered to be returned before passing decree for dissolution of marriage. The High Court held that there was no proof that the said ornaments were given by the appellant to respondent No.1 and in alternative opined that even if it is assumed that the said ornaments were given to the respondent, it was not obligatory for her to return the same before a decree for dissolution of marriage is passed on the basis of `khula'; the High Court opined that the dissolution can be ordered only on the payment of the sum which was fixed as dower.

3. We have heard the arguments and perused the record. The learned counsel for the appellant, Ch. Muhammad Bashir, has only pressed the point that the Courts below have committed an error in holding that the appellant was not entitled to receive any amount in excess of dower in case of dissolution of marriage on the basis of `khula'. He has argued that it is settled principle of law that if the wife seeks dissolution of marriage on the basis of `khula', she must return all the benefits which she received as dower or for any other reason. The learned counsel has argued that there is no authority for the proposition that if the wife received any benefit as a result of gift or otherwise, she is not bound to return the same in case she seeks a decree for dissolution of her marriage on the ground of `khula'. The learned counsel has cited a case reported as `Mst. Parveen Begum v. Muhammad Ali' (PLD 1981 Lah. 116) wherein it was held that the husband is entitled to demand the return of dower paid or any other property which he gave to his wife as a gift or otherwise. It may be stated here that there is difference of opinion amongst various jurists as to whether the husband is entitled to demand the return of anything more than what he had given to his wife. A reference may be made to a treatise known as "A Code of Muslim Personal Law" Volume I (First Edition, 1978), by Dr. Tanzil‑ur‑Rehman, wherein such difference amongst different schools of thought had been discussed.

4. It would be expedient to refer Verse No.229 of Surah Baqar of Holy Quran which has been undisputedly made basis by all the schools of thought for dissolving marriage on the basis of `khula'. The Urdu and English translation of the said Surah is as under:‑‑

5. Urdu----type

6. "Divorce may be (pronounced twice; then keep (them) in good fellowship or let (them) go with kindness and it is not lawful for you to take back any part of what you have given them, unless both fear that they cannot keep within limits of Allah; then if you fear that they would be unable to keep the limits ordained by Allah; there is no blame on either of them if she gives something (to her husband) for her release."

7. Evidently, the Holy Quran does not place any limit on the consideration for which the divorce may be pronounced by a husband on the basis of `khula'. However, the difference amongst the jurists regarding `Fidy;!' in case of `khula' has resulted due to interpretation placed on a tradition of Holy Prophet (a.s.) which pertained to cases of `khula' of the two wives of Sah"c Ibn Qais. In the first instance his wife Jamila came to Holy Prophet (a.s.) and made a complaint in the words, the translation of which is as under:‑‑

8. "Oh Prophet of `Allah' Nothing can bring me and him together. When 1 raised my veil, he was coming from the front with some men. I saw that he was out of them the shortest and the ugliest. I swear by `Allah' I do not hate him because of any defect iq him, religious or moral, but I hate his ugliness. I swear by `Allah' that if it was not for fear of `Allah' I would have spit at his face when he came to me. Oh Prophet of `Allah' ! you see how handsome I am, and Sabit is an ugly persona I don't blame his religion or his morals but I fear heresy in Islam."

9. On hearing this the Holy Prophet of `Allah' said to Jamila:‑

10. "Are you prepared to return the garden that he gave you." She said: "Yes, Oh Prophet of `Allah' and even more." The Holy Prophet said: "No more, but you return the garden that he gave you," and then the Holy Prophet said to Sabit: Take the garden and divorce her."

11. The second instance which relates to Habiba, the other wife of Satit Ibn Qais, the incident is reported in words, the translation of .which is reproduced below:‑

12. "One day early in the morning when the Holy Prophet came out of his house, he found Habiba standing there. He inquired from her what the matter was and she said, "I and Sabit can never pull on together." When Sabit appeared, the Prophet of Allah said: This is Habiba, daughter of Sehl. She has stated what Allah wished she should state, Habiba said, "O, Prophet of Allah, Let Sabit take from me whatever he has given me for that is all with me." The Holy Prophet told Sabit to take back what he had given her and to release her."

13. The various Schools of thought read Verse No.229 of Surah Baqar, reported above, in conjunction with abovementioned traditions of the Holy Prophet; some of them are of the view that the wife is not bound to return more than the dower amount which she was paid while others hold the view that she has to return whatever benefits she received from her husband in form of dower or otherwise; yet some others are of the opinion that the husband can demand even more than what he gave to his wife as dower or otherwise.

14. It has been seen from the aforesaid two traditions that there is nothing specific in them to support the view that husband cannot demand the return of any other property which he gave to his wife, except what was given to wife as dower. In case of Habiba, the wife of Sabit Ibn Qais, the Holy Prophet after hearing the complaint ordered Sabit to take back what he had given to his wife and release her. In the case relating to Jamila, the other wife of Sabit, the Holy Prophet (a.s.) only inquired from Jamila as to whether she was prepared to return the garden which was given to her by Sabit to which she replied in affirmative and further added that she was also prepared to give more than that upon which the Holy Prophet told her no more than that, It cannot be ascertained from the wording of the tradition as to whether the garden was given to Jamila in lieu of dower or it was a gift from her husband. Similarly the Holy Prophet had told Sabit to take back what he had given to Habiba and release her. Phrase "what he had given" clearly implies that the Holy Prophet (a.s.) did not direct Sabit Ibn Oais to get back only dower; rather it implies that whatever was given to Habiba by Sabit was to be returned, dower or otherwise, While discussing the question of `khula' Maulana Abul‑Aala Maudoodi in his book at page 61, Edition 1966, has observed as under;‑‑

15. In Urdu translation of Mota Amam Muhammad at page 289, Edition 1985, while dealing with the question of `khula' it is stated asunder:‑‑

16. It is evident from the treatises, referred to above, that the husband is entitled to demand all things which he gave to his wife whether in form' of dower or otherwise. The Supreme Court of Pakistan also reached the same conclusion in "Khurshid Bibi v. Muhammad Amin" (PLD 1967 SC 97). The relevant observations on page 121 of the report are to the following effect:‑‑

17. "Though, according to the Hedaya, it is abominable on the part of the hpsband to have more than the dower itself, in a case of separation of 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."

18. Thus the view expressed by the Courts below that respondent No.1 was not bound to return the ornaments even if the same are proved to have been received by her is not correct and thus cannot be affirmed.

19. In the instant case the point which falls for determination is as to whether the appellant is entitled to demand the ornaments which were allegedly given to her at the time of their marriage in addition to the dower. It may be stated that no issue was framed on the point as to whether any ornaments were given to the respondent by the appellant or not. According to the appellant golden ornaments weighing 18‑1/2 tolas were given to the respondent but according to respondent No.1 she was given ornaments weighing only 5 or 6 tolas at the time of marriage. However, the appellant snatched the same from her at the time when she was turned out after beating her. The learned counsel for the appellant has argued that proper issues should be framed on the points regarding ornaments and decree for the dissolution of marriage on the basis bf `khula' should be made conditional on the return of the ornaments or on the payment of the compensation for the same. None of the parties prayed for framing any additional issues on the point in Courts below. The parties appear to be conscious of proving the fact regarding ornaments and evidence were led by both sides. However, the Courts below did not give any finding as to what was the nature, weight or value of the ornaments which were given by the appellant to the respondent; and whether the same were snatched away by the appellant. The Courts below have decided the case on the assumption that even if any ornaments were given to respondent No.1, she was not bound to return the same or compensate the appellant by making the payment of their price despite the fact that she sought dissolution of her marriage on the ground of `khula'.

20. Now the question which needs determination is as to what is the nature and the weight of the ornaments which were given to respondent No.1 and the same remained with her when she left the house of the appellant. As has already been stated the case of the appellant is that he gave 18‑1/2 tolas golden ornaments to the respondent whereas according to the respondent No.1 she was given only ornaments weighing 5 or 6 tolas but the same were snatched from her by the appellant when she was turned out of the house.

21. There is no such evidence on record to prove as to what was the nature or weight of the ornaments which were given to respondent at the time of her marriage with the appellant.

22. Kaka, a witness for the plaintiff, has stated that he cannot tell the detail of the ornaments which were given to Mst. Nasim Akhter. In the cross -examination he has stated that he does not know as to whether the ornaments given to respondent No.1 were snatched from her or not by the appellant.

23. Mohabat, another witness for the appellant, has stated that he does not know anything about the nature or the weight of the ornaments. In cross -examination the witness has stated that he did not know as to whether the ornaments were with Muhabhat, appellant, or not. He has stated that `this is secret' as such he does not know.

24. Allah Ditta, another witness for the appellant, has stated that he was present at the time of marriage of the parties and the dower was fixed as Rs.35‑1/2. He has further stated that the appellant had disclosed in the `Majlis' of `Nikah' that he had given the ornaments weighing 18‑1/2 tolas to the. respondent. When cross‑examined, the witness failed to name the persons who were the witnesses to the marriage of the parties in `Majlis' of `Nakah'. On the other hand Mohabat Khan, appellant, when appeared as a witness stated that he gave ornaments to the respondent which weighed 15 or 16 or 17 tolas. He further stated that he did not know the price of the ornaments which he gave to the respondent. He does not state that he disclosed in `Majlis‑e‑Nikah' that the ornaments weighed 18‑1/2 tolls. It may be pointed out that according to all the witnesses, except Allah Ditta, the dower was fixed as Rs. 32 but Allah Ditta has stated that dower was fixed as Rs.35‑1 /2. It appears that Allah Ditta does not tell truth; he contradicts all other witnesses on the question of dower and also fails to name the witnesses to marriage. Moreover, when Mohabat Khan did not know the exact weight of ornaments himself, how he could have told in the `Majlis‑e‑Nikah' that ornaments weighed 18‑1/2 tolas. The appellant appearing as witness has stated that he got the ornaments prepared by one Majid, a Goldsmith of Dudyal. He failed to produce Majid Goldsmith as witness. Subsequently, he placed on the record a receipt purporting to have been executed by one Muhammad Nazir, Goldsmith, in favour of one Ch. Muhammad Arif. Obviously, the receipt does not relate to the ornaments which the appellant gave to the respondent, because there is no explanation as to who is Ch. Muhammad Arif in whose favour the said receipt was executed. Even otherwise, the so‑called receipt has not been proved and has no evidentiary value. Mst. Nasim Akhter, respondent, has stated as a witness that the appellant had given only ornaments weighing 5/6 tolas at the time of their marriage but he snatched away the same from her by breaking open the box wherein the ornaments were kept locked.

25. It follows from what has been stated above that there is no convincing evidence as to the weight and price of the ornaments which were given to the respondent at the time of marriage between the parties. It was for the' appellant to prove the price and the nature of the ornaments which he had given to the respondent. He has failed to prove the said facts. In these circumstances we are unable to make the decree passed on basis of `khula' in favour of respondent conditional on return of the ornaments or on the payment of price of the same, specially so when she has stated that ornaments were snatched from her by the appellant.

26. In the light of what has been stated above finding no force in this appeal it is hereby dismissed with costs.

27. AA./326/S.CA ? CJ, Appeal dismissed.