Sara Noor VS ADJ etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT,ISLAMABAD

IUDICIAL DEPARTMENT

Writ Petition No. 3L46 ot 2O1.3, Sara Noor Versus Addl. District ]udge, Etc

Date of Hearing: - 5ft December. 2013:

Petitioner By: - Mr. Musharaf Kran, Advocate Respondents BY:- Mr. Muhammad Sanaullah, Advocate

IUDGMENT

MUHAMMAD ANWAR KHAN KASI' CJ:

The petitioner namely Sara-Noor [plaintiff in main suit for dissolution of marriagel through instant constitutional petition assails orders & Decrees dated 22.10.2012 and L5.06.20L3, passed by leamed ]udge Family court & leamed ADI Islamabad respectively, whereby her suit for dissolution of marriage was d.ecreed on the basis of her statement subject to payment of dowet

amount and her appeal against the order of leamed Trial Court also met with failure.

2- The facts, relevant for disposal of this petition, are that the parties were married to each other but subsequently their relations tumed hostile which resulted into litigation through suit for dissolution of marriage wherein the petitioner on 22.10.20\2 got recorded statement to the effect that she is ready to forego her dower in lieu of l(rula. On the basis of her statement, the learned Trial Court vide order dated n.rc.2012 decreed her suit but with stipulation to return dower consideration, which, in the present case, is gold ornaments to the tune of seven tolas' 3-Feelingaggrievedbytheorder,thepetitionerwentin appeal but it was also dismissed. Her grievance is that at the time of desertion in August, 20L2, gold ornaments were snatched and this fact is also evident from Para 2 of her plaint, therefore, in sudr state of aff.aits,when the ornaments were already in possession of

the respondent there was no iustification to burden her with condition of its retum. It was also stipulated in the plaint that she would file a suit for rettrm of the same but after deciding to get I<}rula opted to relinquish her claim but the learned courts misunderstood her statement which, otherwise, was very specific as she had forgiven the dower claim and did not undertake to reftrrn the same. She had specifically used the word 'forego'rather 'return'.

4- Learned counsel for the respondent-defendant repelled the above arguments by stating that the petitioner cannot escape from .ri&!&r- esttu'r &ale*-*r:ri -'

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her liability if she intends and wishes to 8et divorce. The law on the subject is very specific and she had to return the consideration in lieu of Khula divorce. If it is not the case, she cannot be held entitled to decree for dissolution of marriage on the condition of Khula, until & tmless it is established that with whom the dower consideration lies.

5- Heard and record Perused.

6- The pivotal question whidr requires determination is as to what will be the impact upon a decree for dissolution of marriage on the basis of Khula, when it is passed subiect to return of dower consideration, when the custody of dower consideration is disputed?

7- The dispute is with regard to the possession of gold omaments / dower consideration. The petitioner alleges that the same are in custody of the respondent whereas the respondent denies this assertion, therefore, this controversial issue, cannot be settled without affording opportunity to both the sides to adduce their respective evidence, but while doing this exercise, the decree for dissolution of marriage on the basis of I(hula, cannot be revoked and will remain intact. This view is fortified by the law set in case of Doctor Akhlaq Vs. Kishwar sultana [PLD 1983 SC 169] wherein it is held that "non paSment of stipulated consideration for I(rula dose not invalidate the dissolution of marriage by I(hula. Once the Family Court came to the conclusion cannot remain with the limits of God and the dissolution of marriage by I(hula must take place, the inquiry into the terms on which such dissolution shall take place does not effect the conclusion but only creates civil liabilities to the benefits to be retumed by the wife to the husband and does not effect the dissolution itself".

g- Following the wisdom laid down in the case referred above, it is concluded that the proper course in this case would be to frame an issue respectinS claim & counter claim of the parties with regard to gold omaments, by recording evidence of both the sides and to decide the case accordingly. The decree for dissolution of marriage pronounced vide order dated 22.L0.20L2 shall remain intact and further proceedings with regard to divorce shall be conducted pursuant to provisions of family laws that includes sending of notice to the concemed union council. Here it is also made clear that in case the petitioner succeeds in her claim regarding possession of gold omaments with the respondent- defendant, she will not be entitled to recover the same pursuant to her undertaking/statement dated 22.10.20L2, whereby she had forgiven dower consideration and if the situation is vice-versa, *dt,Frrg.rrt*;J:ffii#ffi1 ]#;P''W[,'*'i l

J Wfl Pailion No.31462013

then the respondent-defendant would be entitled to recover the same as a civil liability. It is once again made clear that in both the eventualities the decree for dissolution of marriage on the basis of Khula has become absolute on the day of passing i.e.22.10.20L2 when the petitioner got recorded her statement that she is not ready to live with the respondent defendant at any cost' g- In view of above, both the impugned orders dated 22.10.2012 and L5.06.20L3 and the execution petition and proceedings conducted there-under are set-aside with direction to the leamed Trial Court to commence the proceedings from the 'of stage where it had been on the date 22.L0.20L2, aftet framing necessary issues, recording evidence and to proceed with the suit in accordance with law and observations made hereinhbove. The exercise should be culminated within shortest possible time preferably within three months of the receipt of this Judgment. Parties to bear their own costs.

cE)

M.Suhail 05.t2.2013

APPROED FOR REPORTING

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