Does mahr have to be returned in khula .What is the latest judgement on khula ,Kab haqmahar wapis dena hu ga or kab nahi .(After divorce) sabqa 6 saal ka kharcha decree hoa.
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| Dissolution of marriage with HaqMahar |
People does not claim dissolution of marriage on the basis of cruelty or other circumstances . That there is not her fault but husband fault and in these circumstances she can't live with husband.
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| Haqmahar recovery is possible after khulla |
If you want dissolution of marriage on the base of other circumstances, you can get your dower (Haq mahar) if did not received and if received then you will not have to pay back.
For more information call or Whatsapp 03244010279
Judgement
2018 Y L R 1251
[Lahore]
Before Jawad Hassan, J
MUHAMMAD KAMRAN---Petitioner
Versus
Mst. SAMERA MAJEED and others---Respondents
W.P. No.3955 of 2015, heard on 13th February, 2018.
(a) Family Courts Act (XXXV of 1964)---
----S. 5, Sched.---Dissolution of marriage on basis of 'khula'---Dower (haq-mehr), return of---
Scope---Where wife obtained decree for dissolution of marriage on basis of khula, it was subject
to return of dower amount and she subsequently could not claim it as of right---In case of khula,
wife would have to either remit the dower amount, if she had not received it or pay back the
same to the husband if she had received it.
Mst. Saeeda Javed v. Javed Iqbal and 2 others PLD 2013 Pesh. 88 ref.
(b) Family Courts Act (XXXV of 1964)---
---S. 10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), Ss. 2(ii) & 2(iv)---Dissolution
of marriage on basis of 'khula'---Section 10(4) of the Family Courts Act, 1964 was applicable to
the dissolution of marriage on basis of "khula" and not to dissolution of marriage on the grounds
available to a wife under Ss. 2(ii) & 2(iv) of the Dissolution of Muslim Marriages Act, 1939.
Khalid Mahmood's case PLD 2007 Lah. 626 and Mst. Saima Irum and 3 others' case
2006 MLD 83 ref.
Ch. Muhammad Ayub for Petitioner.
Muhammad Asif Mughal for Respondents.
Date of hearing: 13th February, 2018.
JUDGMENT
JAWAD HASSAN, J.---Through this Constitutional Petition, the Petitioner has called in
question judgment and decree dated 29.11.2014 (the "impugned judgment and decree"), passed
by learned Additional District Judge, Jhang, whereby judgment and decree of Judge Family
Court, Jhang was upheld to the extent of maintenance allowance and dowry articles and modified
the extent of dower amount whereby the Respondent No.1 was held entitled to recover dower
amounting to Rs.50,000/- from the Petitioner.
2.
Facts briefly for the disposal of this constitutional petition are that as a consequence of
suit for recovery of maintenance allowance, return of dowry articles and recovery of dower
amount judgment and decree dated 21.07.2014 was passed by Judge Family Court, Jhang,
whereby the Respondent No.1 was held entitled to get maintenance allowance for the period of
iddat at the rate of Rs.5000/-and dowry articles as per statement recorded on oath of Holy Quran
on 10.05.2014 or in alternate their depreciated value Rs.3,50,000/-. The claim of the Respondent
No.1 qua recovery of dower was dismissed. Feeling aggrieved thereof both the parties filed their
respective appeals before the learned Additional District Judge, Jhang, which were consolidated
and vide impugned judgment and decree dated 29.11.2014, the appeal filed by the Respondent
No.1 was partially accepted and impugned judgment and decree of Judge Family Court, Jhang
was upheld to the extent of maintenance allowance and dowry articles and modified to the extent
of dower amount whereby the Respondent No.1 was held entitled to recover dower amounting to
Rs.50,000/- from the Petitioner, whereas appeal filed by the Petitioner was dismissed. Hence this
petition.
3.
Learned counsel for the Petitioner has argued that while passing the impugned judgment
and decree the learned Additional District Judge, Jhang has not applied his judicious mind and in
a slipshod manner has passed the impugned judgment and decree which is not warranted by law;
that while passing the impugned judgment and decree, the learned courts below have misread the
evidence on record and arrived at a conclusion which is contrary to law as the marriage was
dissolved on the basis of "Khula" by the learned Judge Family Court subject to return of dower
amount, therefore, the learned Additional District Judge, Jhang was not justified to pass decree
of dower amounting to Rs.50000/-, therefore, the said findings are erroneous and are liable to be
set aside. Lastly, he prayed for setting aside of the impugned judgment and decree.
4.
On the other hand counsel for the Respondent No.1 has supported the impugned
judgment and decree and contended that the learned Additional District Judge, Jhang has passed
the impugned judgment and decree, in accordance with law therefore, no exception can be taken
to it. Lastly, he prayed for dismissal of the writ petition.
5.
Arguments heard and record perused.
6.
From the perusal of record it reveals that the learned Judge Family Court, Jhang
considered the evidence of the Respondent No.1 (PW-1) and her witness (PW-2), who
corroborated the stance of the PW-1. In rebuttal, the Petitioner, appeared as the DW-1 and
tendered his affidavit. Consequently the learned Judge Family Court, after recording issue-wise
findings decreed the suit of the Respondent No.1 vide judgment and decree dated 21.07.2014 in
the terms mentioned supra. The said judgment and decree was assailed by the Respondent No.1
before the learned Additional District Judge, Jhang in an appeal, which was partially allowed
vide judgment and decree dated 29.11.2014, with modification whereby the Respondent No.1
was held entitled to get dower amount of Rs.50,000/-. The pivotal question to be determined by
this Court is whether the learned Appellate Court had rightly considered the case regarding
dower amount.
From the perusal of record it reveals that in the Nikahnama Rs.50,000/- was fixed as
deferred dower and the marriage of the Respondent No.1 was dissolved on the basis of Khula.
The learned Judge Family Court has rightly held that deferred dower is only payable when
marriage is dissolved by pronouncing Talaq by bridegroom of his death. However, in the case in
hand, the Respondent No.1 herself has obtained decree for dissolution of marriage on 24.09.2013
on the basis of khula subject to return of dower amount. Further, the learned Additional District
Judge, has misread the evidence of DW-1/Petitioner, wherein he in cross-examination has
categorically stated that he paid Rs.50,000/- as dower amount at the time of solemnization of
Nikah in the presence of witnesses namely Muhammad Liaqat son of Muhammad Ibrahim and
Muhammad Asif son of Muhammad Younas, although they were not produced in the witness
box. The perusal of statement of DW-1 reveals that the amount of dower was given to the
Petitioner by his father. So far as payment of receipt is concerned, it is common practice in our
society that parents of bridegroom never demand the receipt of payment from the parents of
bride at the time of solemnization of nikah. Further the Respondent No.1 herself has obtained
decree for dissolution of marriage which was subject to return of dower amount, therefore,
subsequently she cannot lay claim for dower amount. It has been held in so many judgments that
when wife herself obtains decree for dissolution of marriage on the basis of Khula that is subject
to return of dower amount and she subsequently cannot claim it as of right.
8.
It is also worth-mentioning here that Section 10(4) of the West Pakistan Family Courts
Act, 1964 is applicable to the dissolution of marriage on the basis of "Khula" and not to the
dissolution of marriage on the grounds available to a wife under Section 2(ii) & (iv) of the
Dissolution of Muslim Marriages Act, 1939. If any precedent in this regard is required, reliance
may be placed on the case of Khalid Mahmood (PLD 2007 Lahore 626). The relevant portion of
the same reads as under:-
"11. The condition on the wife to restore to husband the dower, received by her at the
time of marriage, while seeking dissolution of marriage on the basis of Khula, according
to provisos to sub-section (4) of section 10 of Family Courts Act, is explicitly indicative
of fact that this provision of law (brought through amendment vide Ordinance, 2002) is
only meant to apply in suits in which dissolution of marriage is prayed for only on the
basis of Khula. Further in such like situation the decree is passed straightway on failure
of reconciliation. This proviso is not applicable, where the decree is not passed forthwith,
on failure of reconciliation proceedings and where the dispute cannot be resolved without
recording of evidence. Proviso was introduced to absolve the Court from following
normal procedure of trial and to empower it pass a decree, on failure of reconciliation,
without framing of issues and recording of evidence. Word "and" used between the
sentences, "If reconciliation fails, shall pass a decree for dissolution of marriage
forthwith" and "shall also restore to husband the Haq Mehr" has been employed
insightfully. This envisages that order for dissolution of marriage and restoration of Haq
Mehr, was to be passed simultaneously; When question of dissolution of marriage is
determined after proper trial then proviso, (ibid) is not applicable and Court can dissolve
the marriage according to the circumstances of each case. The power of the Family Court
to fix any consideration for dissolution of marriage, cannot be curtailed. The Court can
dissolve the marriage on the basis of Khula, even without any compensation, when it
finds that Khula, is being claimed due to the fault, on the part of husband.
A Full Bench of Peshawar High Court in the case of Mst. Saima Irum and three others (2006
MLD 83) has also expressed similar view. Relevant portion of the same is reproduced as under:-
"6. Therefore, in our view, the word `Khula' should be construed as subject to the
presumption that the legislature does not intent, by its general language, to subvert the
established principles of Shariah on the subject and has left it for the Family Courts to
decide whether to dissolve the marriage between the spouses on the ground of Khula or
not. If from the plaint submitted by the wife, the only prayer of the wife is to dissolve her
marriage on the ground of Khula, then the Family Court under added provisos to sections
9 and 10 of the Family Courts Act, 1964 could dissolve the marriage between them on
the ground of Khula and could also order for restoration of the Haq Mahr received by the
wife in consideration of marriage, but if the claim of the wife is based on other grounds
also, such as cruelty etc., then the Family Courts shall proceed with the case in
accordance with law to determine by recording of evidence that the fault lies in which of
the parties and which of the parties are entitled to it."
9.
In this case, the learned Judge Family Court vide order dated 24.09.2013 has dissolved
the marriage between the parties by specifying that the marriage is being dissolved on the ground
of Khula subject to return of dower, therefore, the learned Judge Family Court has proceeded
with the case in accordance with law, therefore, no exception can be taken to it. In case titled
"Mst. Saeeda Javed v. Javed Iobal and 2 others" (PLD 2013 Peshawar 88) it has been held that
"wife in case of dissolution of marriage on the ground of "Khula" would have to either remit the
dower amount, if not received by her or pay back same to husband if so received by her".
In the findings recorded by learned Additional District Judge, Jhang qua dower amount,
he has merely appreciated the evidence of the Respondent No.1 and her witnesses but he has
failed to take into consideration this aspect of the case that the Respondent No.1 has obtained
decree for dissolution of marriage merely on the basis of "Khula" subject to return of dower
amount. It is settled preposition of law that wife in case of dissolution of marriage on the ground
of "Khula" would have to either remit the dower amount, if not received by her or pay back same
to husband if so received by her.
Since the Respondent No.1 herself had obtained dissolution of marriage on the basis of
"Khula", therefore, she is not entitled for dower in the subsequent proceedings. In view of the
above, this petition is allowed the impugned judgment and decree of learned Appellate Court is
set aside and that of learned Judge Family Court, Jhang is. upheld.
MWA/M-50/L
Petition allowed.
- Following case law issi case se milta julta hai
- Jiss main wife 10 year se ziada dair apne ghar per baithi rahi or us ku rukhsati na hoi.
- Husband ne bhi rukhsati karwane main koi dilchaspi na li.
- Jiss ke baad wife ne sabqa kharcha ka dawa kia ju ke sabqa 6 saal tak ka decree hu gia.
- Or Adha haq mahar ju ke gold ki soorat main tha decree hu gia.
- Islam ke mutabaq rukhsati na hoi hu tu poora haq mahar decree nahi hu sakta.
- Issi case main khatoon ne dissolution of marriage file ki thi magar khulla ki bunyad per nahi balke cruelty ki buniad per file ki jiss main divorce ke sath haq mahar ke sath sabqa 6 years ka kharcha bhi decree hu gia
Judgement of High Court
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