Mst. SAIQA vs ADDITIONAL DISTRICT JUDGE, RAWALPINDI And 2 Others

The petitioner filed three suits before Judge Family Court, the detail of which are as under:--

(1) Suit for recovery of dower Mst. Saiqa v. Qaiser Mehmood. Family Suit No.26 of 2001.

(2) Suit for dissolution of marriage Mst. Saiqa v. Qaiser Mehmood. Family Suit No.27 of 2001.

(3) Suit for recovery of maintenance Mst. Saiqa and another v. Qaiser Mehmood. Family Suit No.28 of 2001.

All the suits were consolidated and the following consolidated issues were framed:-- Consolidated issues

(1) Whether the defendant had been treating the plaintiff with habitual cruelty? OPP

(2) Whether the defendant has not paid the maintenance allowance to the plaintiff for more than two years? OPP

(3) Whether the defendant is leading in famous life? OPP

(4) Whether the plaintiff has developed extreme aversion against the defendant and as such cannot live with him within the prescribed limits of Almighty Allah, so she is entitled to Khula` divorce on the grounds amongst others, if so, on what terms and conditions? OPP

(5) Whether the plaintiffs are entitled to recover dower amount Rs.20,000 from defendant? OPP

(6) Whether the plaintiff. Are entitled to recover maintenance allowance from the defendant, if so, at what rate and for which period? OPP

(7) Relief.

2. After putting the parties to trial the learned Judge, Family Court passed its judgment dated 31-5- 2001 whereby it was held that the dower amount of Rs.50,000 was fixed out of which a sum of Rs.30,000 was paid to the petitioner while the remaining sum of Rs.20,000 as dower remained unpaid. The issue regarding the recovery of dower to the extent of Rs.20,000 was found in favour of the petitioner.

3. The maintenance allowance was claimed by the petitioner at the rate of Rs.2,000 per month for herself and Rs.1,500 per month for the minor daughter Mst. Sundas. However, the Judge, Family Court decreed maintenance allowance at the rate of Rs.500 per month from the date of institution of the suit in favour of the petitioner and a sum of Rs.1,000 per month in favour of the minor daughter w.e.f. The institution of the suit.

4. On the issue of dissolution of marriage, it was held that the petitioner was entitled to dissolution of marriage on the basis of Khula'. However, in consideration thereof, she was directed to return the sum of Rs.30,000 received by her as dower and to forego her right to claim the balance of the dower amount of Rs.20,000 as also the maintenance allowance allowed to her. The net effect of the judgment and decree of the Judge, Family Court is that the petitioner has been granted the decree for dissolution of marriage through Khula' but subject to the return of the received dower amount and to forego the unpaid dower amount and the maintenance decree in her favour.

5. Mr. Ziafat Hussain Cheema, Advocate the learned counsel for the petitioner and respondent No.3 in person have been heard.

6. The learned counsel for the petitioner has assailed the condition of return of dower amount already received and the foregoing of the remaining dower amount and the foregoing of maintenance allowance by the petitioner in lieu of Khula' to be illegal and against the Injunctions of Islam. It is contended that the dower is a prerequisite of the vaid Nikah without which the legitimate relationship between husband and were cannot take place. He submitted that dower is not in the nature of a benefit which could be restored to the husband in lieu of Khula'.

7. He further submitted that a were is entitled to claim maintenance for herself if she is forced to live apart from the husband on account of the act of omission and commission of the husband. It is urged that after having decreed the suit for maintenance, in favour of the petitioner the learned Judge, Family Court could not deprive the petitioner of the maintenance in consideration of granting her Khula'.

8. On the other hand, respondent No.3 who argued his case in person submitted that the petitioner had admitted to have received Rs.30,000 by way of dower and that she was under an obligation to return the same and to forego the unpaid dower, and maintenance if she was claiming dissolution through Khula'.

9. Arguments heard. Record perused.

10. In order to constitute a valid marriage, Islamic Law ordains that there should always be a consideration made by the husband in favour of the were. It is a settlement in favour of the were made prior to the completion of the marriage contract and is a precondition of a valid marriage. It is immaterial whether dower is imposed on the husband as a mark of respect for were or it is the consideration for society of the were, it is undoubtedly a precondition and a pre--requisite of a valid matrimonial contract. It is indispensable, so much so that in its absence the relationship between man and were could not be legitimized and shall be regarded as a sinful union.

11. On the other hand, the gift or benefit which is to be restored to the husband by the were in lieu of obtaining Khula' is in essence a gratuitous offering which may be bestowed, by the husband on the were. Such gift or' benefit is not in order to fulfil any legal obligation but is merely voluntary in nature.

12. Viewed in this perspective dower whether paid or unpaid can never be in the nature of a benefit or gift which is liable to be restored in consideration for granting Khula' divorce. The impugned judgment passed by the trial Court is not sustainable to the extent that it makes the grant of Khula' subject to the condition of repayment of Rs.30,000 paid' amount of dower by the were to the husband and to obligate her to forego the unpaid dower amount. The impugned judgment and decree is liable to be modified to that extent.

13. As regard the grant of maintenance to the petitioner, the learned Judge, Family's Court has itself found the petitioner to be entitled to maintenance for herself from the date of the institution of the suit at the rate of Rs.500 per month. This maintenance again is neither in nature of a gift or a benefit but is an undeniable legal obligation of the husband to maintain his were who is not staying away from him without just cause. It would be a contradiction in terms if on the one hand, the Court finds a were legally entitled to claim maintenance and on the other directs her to forego the same in lieu of Khula'. The impugned judgment and decree to this extent is also liable to be modified.

14. The upshot of the above discussion is that the decree for dissolution of marriage. Through Khula' in favour of the petitioner is upheld and the condition as placed by the Judge, Family Court that the petitioner must return the sum of Rs.30,000, the paid dower I amount and forego the unpaid dower of Rs.20,000 and also to forego the decreed maintenance allowance is declared to be without legal effect.

15. Resultantly, this writ petition is allowed, the decree for dissolution of marriage, through Khula is upheld and the condition attached to it as hereinbefore detailed are struck down. Parties to bear their own costs.