Mst. RAFIA YAQOOB Versus SULEMAN AYUB
MUSARRAT HILALI, J.---
C.M.A. No. 8058 of 2025
The respondent seeks withdrawal of his application (C.M.A. No. 8058 of 2025), which is dismissed as withdrawn.
CPLA No.2159 of 2025:
2. This Civil Petition for Leave to Appeal is directed against the judgment dated 18.03.2025 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No.1954/2019 whereby the concurrent judgments of the Family Court and the Appellate Court were set aside and the petitioner was directed to return the entire admitted prompt dower of 15 tolas of gold instead of twenty-five percent as ordered by the courts below as zar-e-khula.
3. The nikah between the parties was solemnized on 01.12.2017 against prompt dower of 15 tolas of gold ornaments as recorded in columns 13 and 14 of the nikahnama. Rukhsati did not take place and the marriage admittedly remained unconsummated. The petitioner instituted a suit for dissolution of marriage on the basis of khula. She had not asserted in her plaint that the admitted prompt dower was unpaid. The respondent filed a written statement, denying the allegations of the petitioner and, while claiming readiness to perform his marital obligations, alleged that substantial gold ornaments, dresses and other items were given to the petitioner for marriage and sought recovery thereof.
4. The respondent, however, failed to appear during the reconciliation proceedings before the Family Court. Upon recording the statement of the petitioner, the learned Judge Family Court decreed dissolution of marriage on the basis of khula vide order dated 17.12.2018, subject to surrender of twenty-five percent of the admitted prompt dower as zar-e-khula in terms of section 10(5) of the Family Courts Act, 1964 (hereinafter referred to as the Act), as applicable in the province of Punjab. The plea of the respondent regarding recovery of the alleged additional items was not entertained. His appeal was dismissed on 08.04.2019 by the Appellate Court who upheld the decree of khula, subject to surrender of twenty-five percent of the admitted prompt dower and the applicability of section 10 (5) of the Act. The High Court, however, interfered with the concurrent findings and directed the petitioner to return the entire prompt dower of 15 tolas of gold on the ground that the marriage had not been consummated.
5. Learned counsel for the petitioner submits that the impugned judgment is based on a misreading of law. It is further contended that the High Court ignored the statutory mandate of section 10(5) of the Act and also misapplied the law relating to divorce upon the instant case which relates to khula. Conversely, learned counsel for the respondent supports the impugned judgment.
6. We have heard the learned counsel and examined the record.
7. Upon perusal of the record, it is important to note that the petitioner never challenged the decree of khula or the condition of returning twenty-five percent of the prompt dower before the Appellate Court. Rather, in her instant leave petition, she expressly stated in her grounds that the judgments of the Family Court and the Appellate Court are according to the law and facts, thereby accepting the liability imposed upon her; this aspect emerges from the record itself. Furthermore, in her plaint the petitioner herself stated the prompt dower to be 15 tolas of gold, which fact was not denied in the respondent's written statement. At no stage did the petitioner assert that the prompt dower was unpaid, nor did she ever challenge the direction requiring return of twenty-five percent of the said prompt dower.
8. The respondent, in his written statement, claimed recovery of various items allegedly given to the petitioner, including gold ornaments, dresses and expenses relating to wedding functions. Even if such assertions are accepted for the sake of argument, the law draws a clear distinction between dower, dowry, bridal gifts/and presents. Items given by a husband or his family in connection with marriage fall within the category of bridal gifts or presents and, as such, vest absolutely in the bride. Such items cannot be reclaimed by the husband, as they do not constitute dower nor are they recoverable as personal property of the husband. The three courts below, including the High Court, therefore, correctly refrained from considering the respondent's claim for recovery of these items.
9. Given the petitioner's own affirmation of the concurrent findings of the Family and Appellate Court, the issue that now arises is the quantum of return of dower in cases of khula. Section 10(5) of the Act empowers the Family Court, in cases of khula, to direct the wife to surrender up to twenty-five percent of her admitted prompt dower to the husband. The ibid section provides as follows:
"In a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and, in case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband."
10. Before proceeding further, it is important to clarify that, in light of section 10(5) of the Act, there was no necessity to delve into the principles of Islam concerning the practice of khula, which is the wife's right to initiate divorce. Thus, we consider the High Court's references to various verses of the Holy Quran to be unwarranted and extraneous to the issue at hand. The relevant legal provision is clear and unambiguous in its intent and applicability, rendering any exploration of religious doctrine unnecessary for resolving this matter. Consequently, our discussion will be confined to a thorough examination of the language and stipulations of section 10(5) of the Act, while refraining from assessing its validity in relation to the foundational teaching of Islam.
11. Focusing on section 10(5) of the Act itself, a straightforward reading illustrates that it does not make any distinction between consummated and unconsummated marriages. This specificity is crucial, as it clarifies that once a wife files a suit for dissolution of marriage through khula, her obligations regarding the return of dower (mahr) are explicitly governed by the stipulations of section 10(5) of the Act in the Province of the Punjab. The language of this provision underscores its significance and reinforces the legal framework governing the dissolution of marriage in this context, ensuring that both parties understand their rights and duties.
12. Now, coming to another important aspect of the impugned judgment, the High Court has placed reliance upon the judgment of this Court in Mst. Tayyeba Ambreen v. Shafqat Ali Kayani (2023 SCMR 246). A careful reading of the ibid judgment, however, reveals that it arose from proceedings originating in Khyber Pakhtunkhwa, where section 10(5) of the Act, as amended in Punjab, has no application. The legal framework governing khula in that case was therefore materially different from the one applicable in the instant case. In contrast, the instant case arises from the Province of Punjab, where dissolution through khula is expressly regulated by section 10(5), which statutorily limits the liability of the wife to surrender up to twenty-five percent of the prompt dower and up to fifty percent of the deferred dower. The High Court again fell into error by relying upon a precedent rendered in a distinct jurisdiction and statutory context and applying it without considering relevant section 10 (5) of the Act.
13. In the present case, the admitted prompt dower being 15 tolas of gold, the maximum liability of the petitioner under section 10(5) of the Act could not exceed twenty-five percent, i.e, 3.75 tolas of gold. The High Court thus erred in interfering with the concurrent findings of fact and in directing the return of the entire prompt dower. Such interference was neither warranted on law nor on facts, particularly, when the High Court relied upon Qur'anic verse 2:237, which specifically governs cases of divorce by way of talaq and not dissolution through khula, and further based its reasoning upon precedent from jurisdiction where section 10(5) of the Act has not been adopted and is not applicable, thereby overlooking the statutory regime governing the Province of Punjab where the present proceedings were instituted.
14. In view of the above, this petition is converted into an appeal and allowed. The impugned judgment dated 18.03.2025 passed by the Lahore High Court, Rawalpindi Bench is set aside. The judgment of the Appellate Court dated 08.04.2019 is restored, whereby the petitioner shall return twenty-five percent of the admitted prompt dower of 15 tolas of gold, i.e., 3.75 tolas of gold to the respondent.
15. Before parting with the judgment, we acknowledge the assistance rendered by the learned amicus curiae, Mr. Umer Aslam, ASC, and Ms. Maliha Zia, Advocate (Legal Aid Society), whose researched submissions were of significant assistance to this Court.
UN/R-2/SC Appeal allowed.