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Constitutional Petition No.880 of 2014, decided on 11th July, 2014.

----S. 10(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Khula---Reconciliation, failure of---Payment of dower---Determination---Trial Court passed preliminary decree and granted Khula to wife and framed issues pertaining to payment of dower amount by husband to wife---Validity---Contents of Nikahnama showed that dower amount was supposed to be paid on demand but nothing had been mentioned that anything was paid at the time of marriage and execution of Nikahnama---Family Court was required under S.10(4) of West Pakistan Family Courts Act, 1964, to pass decree of dissolution of marriage forthwith and also to restore husband Haq Mehr (dower) paid in consideration of marriage "at the time of marriage", if reconciliation failed---Family Court had no option except to pass preliminary decree when reconciliation had failed, particularly when wife made clear statement that she was not willing to continue marriage and union had become hateful---No party could be compelled to live with the other even if there were compatibility issues only---Husband himself stated in written statement that decree of Khula could be passed forthwith subject to payment of dower amount---High Court in exercise of Constitutional jurisdiction declined to interfere in the order passed by Family Court---Petition was dismissed in circumstances. 2006 PLD Kar.272 and 2013 CLC 450 ref.

----S. 10(4)---Khula---Dower on demand---Presumption---When dower was fixed as on demand unless contrary was proved by husband, presumption would be that such dower was not paid. Taimur Mirza for Petitioner. Ch. Khalid Raheem Arain for Respondent No.1. Date of hearing: 11th July, 2014.

Through this petition, the petitioner has challenged the order dated 20th May, 2014 passed by the Court of Xth Civil and Family Judge and Judicial Magistrate Karachi East in Family Suit No.1742 of 2013 whereby Khula was granted to the respondent No.1 and certain issues were framed to be decided after taking evidence. The impugned order was passed in view of the fact that respondent No.1 stated before the Trial Court that there is no possibility of the parties to lead a happy marital life, if she is forced to join the defendant/petitioner it will mean throwing her into a hateful union. It was further stated that the plaintiff/respondent No.1 is ready to remit her dower amount in consideration of Khula. The notices were issued and the respondent No.1 was served who appeared in Court on 9th July, 2014 and sought time to engage counsel. Today Mr. Ch. Khalid Raheem Arain appeared and filed counter affidavit and objections/Parawise comments, copies were supplied to the learned counsel for petitioner. The learned counsel for petitioner stated that when the payment of dower amount is disputed no preliminary decree can be passed as Khula is always granted in lieu of dower amount and in the present case the respondent No.1 has denied having received the dower amount whereas the petitioner claims to have paid the same to the respondent No.1 and therefore, the same should have been proved before passing any preliminary decree. The learned counsel further stated that no decree can be passed before deciding the disputed issue regarding payment of dower amount and such issue is to be decided after taking evidence of the parties. The learned counsel in support of his contention relied upon case law reported in 2006 PLD Karachi 272 and also 2013 CLC 450 (Sindh). The learned counsel submitted that in these cases it has been observed that preliminary decree cannot be passed without first resolving the issue of dower amount after taking evidence. The learned counsel also submitted that he was not properly heard and therefore he moved transfer application before District Judge and say that no order was passed on the transfer application. Learned counsel, however, could not give any number of such transfer application. On copies of transfer application even endorsement of presentation is not available. Address of the parties on the title is also missing. The learned counsel further says that matter is decided in haste. The learned counsel also submitted that irresponsible proceedings were held by the trial Court as on one hand court framed issues and on the other hand suit has been decided. On the other hand the learned counsel for respondent No.1 stated that section 10(4) of West Pakistan Family Courts Act, 1964, requires that the trial Court has to first pass the order with regard to Khula after reconciliation fails. The learned counsel further stated that in the present case in Nikahnama the dower amount is mentioned as Rs.25,000 which was deferred and therefore the learned counsel says that it was to be paid on demand. The learned counsel further says that in written statement filed by petitioner he alleged that he had paid the dower amount to the respondent No.1 but it was not mentioned that the same was paid on demand and through which mode, even the date has not been mentioned. The learned counsel says that any amount even if paid by the petitioner to the respondent No.1 during substance of marriage is a gift and is not required to be returned. He further says that in fact nothing was paid to the respondent No.1. He further says that petitioner has not filed any document through which it could be shown that dower amount was paid on demand. The learned counsel pointed out that in written statement filed by the petitioner available at page 69 petitioner himself stated that he paid the dower amount and that prayer clause A of the plaint may be decreed henceforth subject to payment of or return of the dower amount. I have heard both the learned counsel at length and perused the record with their assistance. It is evident from the contents of Nikahnama that dower amount was supposed to be paid on demand but nothing has been mentioned that anything has been paid at the time of marriage and execution of Nikahnama. Section 10(4) of West Pakistan Family Courts Act requires family Courts that if reconciliation fails court shall pass decree of dissolution of marriage forthwith and also restore the husband Haq Mehr paid in consideration of marriage "at the time of marriage" therefore there is no option with the trial Court except to pass preliminary decree when reconciliation fails, particularly when wife makes a clear statement that she is not willing to continue the marriage and union has become hateful. No party can be compelled to live with the other even if there are compatibility issues only. The petitioner/ defendant himself stated in the written statement that decree of Khula can be passed forthwith subject to payment of dower amount. The language of Para-A of preliminary objections show that petitioner himself was not eager to live with respondent No.1. In the case of Muhammad Yousuf v. Mst. Mubeela and 2 others 2013 CLC 450 it was observed that the wife had admitted receiving of dower amount, however, alleged that it was later on snatched and in such circumstances it was found that since the dower amount stood paid therefore it was now for the wife to prove that it was snatched. In the present case there is nothing on record to show that dower amount was even paid except simple statement by the petitioner/defendant made in written statement filed on his behalf. In the case of Abdul Sattar v. Mst. Kalsoom section 10(4) of West Pakistan Family Courts Act was discussed and principles regarding Khula were laid down. In my humble view when dower is fixed as on demand unless contrary is proved by the husband the presumption would be that such dower was not paid. However, parties did not agree to such situation, therefore, the trial Court has already framed issues in this regard. In my opinion, the facts and circumstances of this case are such that do not require any interference by this Court in constitutional jurisdiction, which is discretionary under Article 199 of the Constitution of Islamic Republic of Pakistan at this stage. In view of above this petition is dismissed with no order as to cost. However, it has been noted that in the impugned order the learned trial Court has observed that the plaintiff is ready to remit her dower amount in consideration of Khula, although she claims not to have received any, therefore in such circumstances the respondent No.1 is directed to deposit Rs.25,000 with the Nazir of District Court East Karachi within two weeks and the Nazir shall invest such amount in some government profitable scheme and such amount shall be subject to any final order of the Family Court concerned, when the issues framed by the trial Court are finally decided. With these observations petition stands disposed of along with listed applications in above terms. MH/A-104/Sindh Petition dismissed.

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