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S.14 read with Civil Procedure Code (V of 1908), O. XXI, r. 18 Dissolution of marriage-Khula-Dower- Decree of dower happening to be of same amount which was payable as zare khula -Such decree could not -be' executed by Family Court on execution application of wife-Order of District Judge, on appeal, directing that zare khula shall be adjusted against dower amount and decree for dissolution of marriage shall become final without any payment-Held, not a direction but only a clarification of salutary principle involved in r. 18, O. XXI, C. P. C.-[Khula'-Muhammadan Law].

Tassawar Hussain Qureshi for Petitioner.

The learned counsel argued that the evidence for decreeing the suit for dissolution of marriage on the ground of khula' is not sufficient. He further argued that the learned District Judge had no jurisdiction to modify the decree once he came to the conclusion that the appeal was incompetent in view of the bar of section 14(2) of the Family Courts Act. I have seen the documents placed on record and gone through the judgments of the learned Courts below. I do not agree that the evidence was insufficient for passing a decree on the ground of khula. There appears to be instances of cruelty as discussed under issue No. 1 though the learned Family Court came to the conclusion that those instances were not sufficient for giving a finding on that issue in favour of the respondent.

2. One other circumstance is this that though the petitioner had not paid any dower to the respondent but he has throughout been insisting that this had been paid. Although he did not file an appeal against the decree of dower but before me also the-learned counsel urged that the dower had been paid though he submitted that the petitioner agreed to pay dower amount in view of the decree provided that the respondent is willing to live with him. This condition imposed try the learned counsel is itself illegal. Added to this the evidence is of entertainment of hatred by the petitioner towards the respondent, which does not appear to be wholly unjustified. Anyhow it is clear that the .relations between the parties are not such that they may live within the limits of God.

3. Another point which arises out of these facts is that the learned Family Court on the one hand decreed the suit for dower filed by the respondent and on the other hand while passing the decree on the ground of khula made it subject to the condition of the payment of a sum of Its. 5,000 as zare Hula up to the 15th of April 1977. The appeal filed by the respondent was dismissed by the learned District Judge but he gave a direction that zare khula' shall be adjusted against the dower amount and decree for dissolution of marriage shall thus become final without any,, payment. The argument of the learned counsel is against this direction. Although it is a point worth consideration whether an appeal could not lie against the zare khula fixed by the Court since the bar is against the decree for dissolution of marriage only. The direction of the learned District Judge is not a direction, modifying the decree as such. The learned District Judge has done what the learned Family Court ought to have done. Even in C. P. C. it is provided under Order XXI, rule 18 that where an application is made to a Court for the execution of cross-decree in separate suits for the payment of two sums of money passed between the same parties and. capable of execution at the same time by such Court, then if the two sums are equal, .satisfaction shall be entered upon both decrees. . Although this Code is not applicable to the Family Courts but the principle underlying in rule 18 is a salutary principle The decree of dower being of the same amount which was payable as zare khula that decree could not be executed by the Family Court on the execution application of the respondent. In these circumstances the order of the learned District Judge is not a direction but is only a clarification of the principle involved in Order XXI, rule 18, C. P. C. and is amply justified.

4. This is not a fit case for interference in the exercise of - writ - jurisdiction. The petition is, therefore, dismissed in limine.

S.Q Petition dismissed.

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