Seeking The Valid Procedure of Khula In Pakistan :
Impression could not be dispelled that it was the cruel conduct of defendant that compelled plaintiff to seek procedure of khula in Pakistan from defendant. Couple lived together as husband and wife for a number of years which must be regarded as a benefit received by husband also disentitling him to seek return of entire dower in case of procedure of khula in Pakistan. Plaintiff was not liable to return dower to defendant except part of dower i.e., Rs.1000/- which she voluntarily offered to return to defendant in consideration of dissolution of marriage on the ground of procedure of khula in Pakistan. High Court in exercise of Constitutional jurisdiction, maintained the judgment and decree passed by lower Appellate Court with the modification that plaintiff would return Rs.1000 to defendant. Petition was disposed of accordingly. Direction to return five tolas gold in lieu of procedure of khula in Pakistan was rejected. Suit for procedure of divorce in Pakistan, recovery of dower and dowry articles was filed.
Question Of Return Of Haq Mehr:
Question of return of Haq Mehr (dower) received has to be adjudged in the light of conduct of husband. In case of procedure of divorce in Pakistan on the ground of Khula', question of return of Hag Mehr (dower) received has to be adjudged in the light of conduct of husband which means that where evidence indicates that dissolution of marriage is caused by or is attributed to faulty conduct of husband, then the husband would become disentitled to return of dower otherwise due. Such rule is based on a sound rationale as it would be unjust to deny dower to a wife who has been forced into seeking dissolution on account of reprehensible acts or omissions of her husband. 8. Suit for dissolution of marriage on ground of Khula' Restitution of dower Constitutional petition had impugned judgment of Family Defendant in amount. Court were by the Court had dissolved the marriage between the parties by way of procedure of khula in Pakistan.
Plaintiff in her suit for procedure of divorce in Pakistan had categorically stated that she had developed hatred for the defendant; and that it was not possible for her to live with him within the limits prescribed by Almighty Allah; and she was not even ready to reconcile with him as she had suffered mental torture at the hands of defendant. Plaintiff, who was a doctor by profession, could not be compelled to live with the defendant as his wife against her wishes. Family Court, in circumstances, while passing impugned judgment and decree had not committed any illegality. Once the Family court came to the Conclusion that wife was entitled for procedure of khula in Pakistan it must pass such decree in her favor. Decision regarding the restoration of mutual benefits, would have to be taken in the light of facts of each case; and would have the effect of only creating a civil liability. If the contention of defendant that Khula' could not be granted without restitution of dower and other benefits were accepted, then destitute wife, who was found otherwise entitled of Khula', would stand deprived of the right simply because of her incapacity to return the benefits, which would be highly unfair and against the spirit of law and justice. It is not the requirement of law, that in case of "procedure of divorce in Pakistan, the wife would be compelled to return the entire Consideration, benefits/Haq Mehr" received by the wife. Suit was filed by wife against her husband, for recovery of gold ornaments.
Family Court dismissed the Suit on the ground that matter was of civil nature. Lower Appellate Court allowed the appeal and decreed the suit in that appeal before lower Appellate Court was not in favor of wife. Plea raised by husband was that appeal before lower Appellate Court was not competent as no Court-fee was affixed by wife. Plea raised by husband was appeal competent as not Court-fee was affixed by wife. Family Court had jurisdiction under S. 5 of West Pakistan Family Courts Act, 1964, to entertain, hear and adjudicate upon matters specified in Part-I of the Schedule to West Pakistan Family Courts Act, 1964, while the Schedule had specified "personal property and belongings of a wife" in respect of which a family suit could be brought. Witness for husband did not state that gold ornaments were with wife but stated in his examination-in-chief that he did not know in whose possession the gold ornaments were lying.
Rupees 1000/- Was Fixed as Dower And Paid At The Time Of Marriage:
Husband, in the written statement had not specifically claimed the return of dower so an implied waiver was attracted on his part. Under the provision of waiver was attracted on his part. Under the provision of S. 10(4) of the West Pakistan Family Courts Act, 1964, it was mandatory for the Court to pass a decree for dissolution of marriage on failure of reconciliation proceedings and direct the return of "Haq Mehr" received by the wife in consideration of procedure of divorce in Pakistan and procedure of khula in Pakistan, however, if the husband did not claim the return of dower specifically an implied waiver would be attracted on his part and in such eventuality the wife reconciliation proceedings had failed, in the present case, but the wife had categorically stated on oath that she had severe hatred towards the husband. Husband had been living abroad throughout. Contention that the wife had taken ornaments, garments and cash amount from his mother could not be accepted and if in fact she had taken these articles from his mother, such would not amount to benefits of marriage taken from the husband.