Procedure Of Khula in Pakistan:
Decree was passed by the Court of competent jurisdiction for procedure of khula in Pakistan and khula process in Pakistan and others and did not suffer from any illegality or infirmity due to alleged non- return of dower as the husband had not specifically claimed the same. Constitutional petition was dismissed in circumstances. Return of dower or benefits in procedure of khula in Pakistan was not mandatory. Return of dower or benefits of marriage was not condition precedent for a decree for procedure of khula in Pakistan in view of the provisions of S. 10(4) of the West Pakistan Family Courts Act, 1964. 13. It was mandatory for the Court to pass a decree for procedure of divorce in Pakistan on failure of reconciliation proceedings and direct the return of "Haq Mehr" received by the wife in consideration of decree for procedure of divorce in Pakistan. 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 Khula procedure of divorce 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 was not obliged to even, return the dower.
Grant of procedure Khula in Pakistan:
Suit for dissolution of marriage or grant of procedure Khula in Pakistan and khula procedure in Pakistan to return of title documents of house gifted by him to plaintiff was heard. Suit for dissolution of marriage of grant of Khula, return of title documents of house gifted by him to plaintiff in pursuance of compromise entered between parties in previous suit for recovery of dower amount. Dismissal of such application by Family Court was upheld. Main suit was still pending adjudication before Family Court meanwhile Nadra divorce certificate in Pakistan was issued. Defendant had gifted his house to plaintiff out of natural love and affection through a registered declaration of gift. Plaintiff had accepted such gift and taken possession of gifted house before the issuance of Nadra divorce certificate in Pakistan. Said house was not a part of dowry articles given by defendant to plaintiff at time of her marriage. Provision of S. 10(4) of West Pakistan Family Courts Act, 1964 did not provide for Surrender of gift by wife consequent upon grant of Khula. Family Court had rightly dismissed such application.
High Court dismissed Constitutional petition in Circumstances:
Such of her husband filed suit for recovery of dowry articles against relatives of her deceased husband. Both the Courts below concurrently dismissed the suit and appeal filed by plaintiff on the ground that such suit was only maintainable between spouses. Word "party" had a very wide meaning and was not necessarily confined to spouses and it included "any person" which in the "consideration" of Family Court was "necessary" for "proper decision" of the "dispute" and whom the Family Court might add as a party to dispute Schedule to West Pakistan Family Courts Act, 1964, could be instituted before Family Court. Claim of plaintiff for recovery of dowry was available at Serial number 8 of the Schedule to West Pakistan Family Courts Act, 1964, Family Court had jurisdiction to try and adjudicate upon the matter of procedure of khula in Pakistan. High Court, in exercise of Constitutional jurisdiction, set aside the judgments and decrees passed by two Courts below and case was remanded to Family Court for decision afresh of procedure of divorce in Pakistan. Petition was allowed in circumstances. Dissolution of marriage on ground of Khula in Pakistan was maintained. Plea of husband that dower amount had been paid to wife on wedding night. Plea of husband that dower amount had been paid to wife on wedding night. Failure of conciliation proceedings between parties and wife's statement before Court that she would prefer to die than to live with the husband.
Family Court after passing decree had not refused to restore dower to husband:
Family Court after passing decree had not refused to restore dower to husband, but had postponed its return till decision of such issue after recording evidence of parties. Family Court had correctly put to rest controversy without committing any error of law or facts. Plaintiff filed suit for dissolution of marriage and started procedure of divorce in Pakistan. Dowry articles and gold ornaments taken by the defendant were in his possession. Plaintiff filed suit for dissolution of marriage, recovery of dower in shape of gold ornaments weighing 29 tolas or the market value of the same; recovery of maintenance allowance; and recovery of dowry articles as per detail mentioned in the list or the market value of the said articles. Suit had concurrently been decreed by the Family Court and Appellate Court below. Nikah of the parties was performed in the year 1990 and 20 tolas gold ornaments were fixed as dower of the plaintiff. Defendant had divorced the plaintiff in the year, 2003 and ousted her in her wearing apparel from his house and since then the plaintiff was residing with her parents. Dowry articles and gold ornaments taken by the defendant were in his possession.
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Defendant had not paid maintenance allowance. Both the Courts below had granted decree for recovery of dower i.e., 29 tolas gold ornaments and the defendant had not sought for relief of the substitution of dissolution of marriage on the basis of "Khula". Plaintiff had proved on record that 20 tolas gold ornaments fixed as dower, was not paid by the defendant to her. Plaintiff being entitled for decree of dower amount same was rightly granted by the Courts below. Judgments and decrees of both the Courts below not suffering from any illegality, irregularity, misreading and non-reading or jurisdictional error, were maintained, in circumstances. High Court had no jurisdiction to substitute its own findings to the findings of the Tribunals below in Constitutional jurisdiction and ultimately Nadra divorce certificate in Pakistan and Pakistani divorce paper should be issued. Constitutional petition was dismissed. Return of dower, gift or benefit.
Return of dower, gift or benefit to husband in consideration of obtaining Khula' divorce by wife:
Scope and principles stated. Wife is entitled to claim maintenance for herself if she is forced to live apart from the husband on account of the acts of cruelty attributed to the husband. Maintenance is neither a nature of a gift or a benefit but is an undeniable legal obligation of the husband to maintain his wife who is not staying away from him without just cause. Islamic Law ordains that in order to constitute a valid marriage there should always be a consideration made by the husband in favor of wife. Marriage being a settlement, consideration was a precondition of a valid marriage. Marriage was a civil contract and not a sacrament and was meant for comfort, love and Compassion of the spouses. Husband was bound to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage. Islam had consideration was a precondition of a valid laid down the parameters for spouse to live within those bounds and if parties would transgress those parameter they should relieve each other and break matrimonial tie with kindness. Dower was a debt and husband was under obligation to pay the same on demand after the issuance of Nadra divorce certificate in Pakistan and nadra divorce certificate from union council.