HA BIBURREHMAN vs THE ADDITIONAL DISTRICT JUDGE, LAHORE and others

ORDER

' M.S.H. QURAISHI, J.-- Habib-ur-Rehman petitioner was married to Mst. Yasmin Habib (respondent No,3) in December, 1976. However, after a couple of years, she instituted a suit on 10-1-1979 for dissolution of the marriage on the ground that she had been treated by the petitioner with cruelty and that the parties on account of the hatred gained could not live together any further. She brought another suit on 9-2-1979 for recovery of the dower amount of rupees one lac. Both the suits were consolidated, the issues framed were found in favour of the respondent and, accordingly, the suits were decreed by the Judge Family Court on 3-2-1980. The petitioner after having unsuccessfully challenged the decree of dissolution by Writ Petition No,2113 of 1980 did not agitate the matter further. He, however, appealed against the decree for the dower money but when the appeal failed before the Additional District Judge on 21-3-1981, he filed Writ Petition No,4507 of 1981 which too was dismissed in limine on 19-9-1981 as being without any force. He has now moved this petition for leave to appeal.

2. The contentions raised before us are (1) that it had been agreed between the parents of the spouses that the dower amount would be Rs,32.50 but it would be announced to be Rs,1,00,000 and accordingly at the time of the Nikah the column of Haq-e-Mahr had been left open to be later filled in with the amount of Rs, 32.50 but the parents of the respondent in connivance with the Nikah Registrar had used two sets of Nikah forms, in one of which the sum of Rs, 32.50 had been written which had been shown to the petitioner's father, and in the other a sum Rs, 1,00,000 had been filled in and that as such the entry of Rs,1,00,000 in the Nikahnama was on account of fraud and misrepresentation, (2) that the decree being, inter alia, on the ground of Khula, the respondent was not entitled to the return of the dower amount or for that matter even of the marriage benefits, and

(3) that the evidence of the petitioner had been wrongly closed which had resulted in serious miscarriage of justice.

3. The first contention relates entirely to a question of fact and on going through the judgments of the Courts below, we find that they had found against the petitioner after a thorough discussion of A the evidence on the record. The petitioner himself did not produce his copy of the Nikahnama, nor had he examined the Nikahkhawn on the question of the fraud and misrepresentation. There is, therefore, no scope for interference with the concurrent finding on the question of fact.

4. For the second contention, learned counsel had relied on Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97 in which it had been held:- "Though, according to the Hedya, it is abominable on the part of the husband to have more than 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."

' But the ruling in the cited case cannot be invoked in the present case because here the decree of dissolution had been passed also on the ground of cruelty, in which case the wife is not deprived of her right to the dower amount. If the petitioner could not resist the wife's suit for recovery of the dower amount, had the decree of dissolution been passed only on the ground of cruelty, it is hardly logical that he could resist it merely because the wife had also succeed on another ground, that is, of Khula. No case-law has been cited to support that where the dissolution is granted on grounds including Khula, the wife becomes disentitled to recover the dower money.

5. As regards the grievance against closing of the petitioner's evidence, we find that although the point had been taken both in the memorandum of the appeal and the writ petition but the relevant judgments are altogether silent in that regard. This shows that the point had not been raised during the hearing of the appeal or the writ petition. There is no averment either before the High Court or before this Court that the ground had actually been raised during the hearing of the appeal or the writ petition. If the point had not been taken during the hearing of the arguments, and there is no reason to presume otherwise, the point cannot be allowed to be raised now before us.

6. In view of the above discussion, we find no merit in this petition which we accordingly dismiss.