MUKHTAR AHMED vs ANSA NAHEED and 2 others

NAZIM HUSSAIN SIDDIQUI, J.--This appeal by leave of this Court is directed against the judgment dated 27-10-1993 passed in Writ Petition No,1660 of 1992 by a learned Judge in Chamber, Lahore High Court, Rawalpindi Bench, whereby said petition, filed by respondent No,1, Ansa Naheed, was allowed and all the conditions imposed by trial Court, regarding relinquishment of dower, dowry and maintenance, were set aside.

2. The facts relevant for decision of this appeal are that the respondent No,1 on 22-5-1990 had filed a suit for dissolution of her marriage against the appellant on various grounds viz. Cruelty. Non- payment of maintenance, nonperformance of marital obligations and impotency of the appellant.

She averred in the plaint that it was not possible for the parties to live together as husband and wife and she was entitled to divorce on the ground of Khula' also.

3. The suit was resisted by the appellant. After recording the evidence of the parties, learned Family Judge passed decree in favour of respondent No,1, dissolving her marriage from the appellant on the grounds that the latter had failed to perform marital obligations, treated her with cruelty and failed to maintain her. It was also held that, in any case, she was entitled to dissolution of marriage on the ground of Khula' and in lieu thereof she would not be entitled to claim dower, dowry and maintenance.

4. It appears that. During pendency of aforesaid suit, the respondent No,1 had also instituted a suit against the appellant for recovery of dowry amount of Rs,4,50,000. After the marriage was dissolved, the appellant filed an application, under Order VII, Rule 11, C.P.C. In the latter suit for rejection of the plaint on the ground that, in view of above findings of the Family Court, the respondent No, 1 was not entitled to claim dower and dowry from the appellant.

5. Confronted with above situation, the respondent No,1 filed an application before the Family Court seeking clarification of its judgment and decree dated 25-9-1990. It was rejected and this order was maintained by District Court. Thereafter, the respondent No,1 filed writ petition, which was allowed.

6. It was contended before High Court that the marriage of the respondent No,1 was dissolved not only on the ground of Khula' but also on the grounds of cruelty, non-maintenance, and non- performance of marital obligations by the appellant and it being so the condition attached by learned Family Court that the respondent No, 1 would not be entitled to claim dower, dowry and maintenance was illegal and she could not be deprived of her right to recover dowry.

7. It is significant to mention here that respondent No,1 in her deposition recorded before Family Court, on this point; stated that on the ground of Khula' she was ready to forego her claim of Rs,10,000 being remaining amount of Haq Mehr. She, however; never gave up her claim of dowry.

8. Learned High Court relying upon the dictum laid down in the case reported as Farida Khanum v.

Maqbul Ilahi and 2 others (1991 M LD 1531) upheld the contentions raised on behalf of respondent No,1 and allowed the petition.

9. Vide order dated 17-4-1995, leave to appeal was granted in this matter to consider the following:-- "Whether, in absence of any appeal having been filed against the decree for dissolution of marriage granted in respondent's favour on the basis of Khula' in which the respondent undertook to surrender dower and dowry and other benefits, and also which has attained finality, the learned High Court rightly exercised its Constitutional jurisdiction in declaring that part of the decree to be illegal, without lawful authority and of no legal effect."

10. It is contended on behalf of the appellant that High Court, while exercising its jurisdiction under Article 199 of the Constitution, could not change or alter the judgment and decree passed by Family Court, especially when the respondent No,1 had not challenged the same and the petitions filed by her for seeking clarification in said judgment and decree were dismissed both by Family Court and First Appellate Court, meaning thereby that the same were maintained.

11. We are not impressed with above contention. The fact is that the respondent No,1 had agreed to forego her claim to the extent of Rs,10,000 only relating to dower. It is an admitted fact that her marriage with the appellant was dissolved on various grounds, including Khula'. Once the marriage is dissolved on other grounds also the wife would be entitled to recover the amount of dower and dowry. If the marriage is dissolved solely on the ground of Khula' the situation would be different and it would be examined keeping in view the offer she made for getting marriage dissolved on Khula'. A woman married under Muslim Law is entitled. To obtain a decree for the dissolution of her marriage on anyone or more of the grounds available under the law. Each ground is separate and enough for dissolution. If marriage is dissolved on other grounds also it means that the result would have been the same irrespective of the fact that the plea of Khula' was raised or not. Legal rights cannot be curtailed by implication. This Court in the case reported as Habib-ur-Rehman v. The Additional District Judge, Lahore and others (1984 SCM R 1432) ruled as follows:-- "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."

12. Accordingly, we hold that the findings recorded by High Court are correct and not open to any exception.

13. In consequence, the appeal is dismissed. It is, however, made clear that the suit filed by the respondent for recovery of dowry amount would be decided on its own merits.