MOHAMMAD MOHSIN RAZA vs ADDITIONAL DISTRICT JUDGE, JATOI, DISTRICT MUZAFFARGARH Ss

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MOHAMMAD MOHSIN RAZA VS ADDITIONAL DISTRICT JUDGE, JATOI, DISTRICT MUZAFFARGARH Ss. 5, Sched., 10(5) & 10(6)---Suit for dissolution of marriage on the basis of Khula---Return/surrender of dower---Principles---Family Court while dissolving marriage on the basis of Khula decreed the claim of the dower of plaintiff (ex-wife) to the extent of 75% of unpaid dower mentioned in column No. 16 of the Nikahnama in the shape of residential house and return of 25% of paid dower as mentioned in columns Nos. 13 & 14 of the Nikahnama---Plea of the petitioner (ex-husband/defendant was that the rule that allowed return or surrender of up to 25% of admitted prompt dower or up to 50% of deferred dower encapsulated in Ss. 10(5) & 10(6) of the Family Courts Act, 1964, ('the Act 1964') had been declared repugnant to the injunctions of Islam by the Federal Shariat Court in case titled, "Imran Anwar Khan and others v. Government of Punjab through Secretary Ministry of Law, Lahore and others" reported as PLD 2022 FSC 25 ('the Imran Anwar Khan case')---Question was what were the principles governing the surrender or return of dower in case of dissolution of marriage or Khula in the light of 'Imran Anwar Khan case'?---Held, that Family Court had the discretion to determine the quantum of return or surrender of dower in a case of dissolution of marriage or Khula depending upon the facts and circumstances of the case---Therefore, when divergent pleadings regarding entitlement or surrender of dower are taken by the parties in a suit for dissolution of marriage, the proper course is to decide the same after recording of evidence---However, Ss. 10(5) & 10(6) of the Act 1964 were introduced in 2015 to regulate the question of surrender of dower in the case of Khula which prescribed a discretionary upper limit for the Court to order surrender of dower up to fifty percent of deferred dower or up to twenty-five percent of admitted prompt dower of the wife in favour of the husband---Courts generally invoked S. 10(5) of the Act 1964 even in a case of Khula where either the suit was decreed summarily or otherwise when it was proved that Khula was obtained by the wife for no fault of the husband---Judgment in the 'Imran Anwar Khan case' was rendered in this context; which struck down the prescribed upper ceiling with respect to surrender of dower encapsulated in subsections (5) & (6) of S. 10 of the Act 1964 being repugnant to Islam and as such, declared the same to be ineffective from 01.05.2022---It is, therefore, pertinent to examine and assess its impact on the pending cases involving the cases of Khula---Pertinently, the Federal Shariat Court, in case titled "Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others" reported as PLD 2014 Federal Shariat Court 43 while setting certain principles, concluded [ in Para (xii)]that "the quantum of return or surrender of dower shall be decided in the light of said/certain principles without resort to statutory upper ceiling stipulated in Ss. 10(5) & 10(6) of the Family Courts Act 1964 having been struck down as repugnant to injunctions of Islam after the cutoff date declared in the Imran Anwar Khan case"---In the present case, the Family Court framed a specific issue (No. 2) regarding entitlement of the respondent/plaintiff to a decree for dower in her favour and against the petitioner in view of dissolution of marriage---Columns Nos. 13, 14 & 16 of the original pert of (duly Exhibited) Nikahnama revealed that Rs. 5000/- cash, 03 Tolas gold ornaments and 05 Marlas constructed house were listed therein as dower---As such, the plea/version of the petitioner based on oral evidence regarding non-fixation of 05 Marlas house was discarded for the reason that presumption of truth was attached to Nikahnama produced by the respondent which could not be dislodged by counter evidence---Accordingly, the Courts below after due appreciation of evidence on record, concurrently held that at the time of Nikah, cash and gold ornaments were paid to the respondent but 05 Marlas constructed house was not paid at that time or thereafter---Whereas, the respondent substantially proved the reasons for seeking Khula as per her pleadings and successfully established that she was not entirely at fault for failure of her matrimonial relationship---At the same time, the respondent did not produce conclusive evidence of torture and cruelty on the part of the petitioner to prove that she was not at fault at all---Therefore, it can safely be concluded that proportionally, the petitioner was more at fault than the respondent for the dissolution of marriage between them---Family Court after declaring the entire dower as prompt invoked Ss. 10(5) & 10(6) of the Act 1964 and ordered that the respondent was entitled to her dower but must return or surrender 25% of her admissible dower as consideration for Khula---In this context, the non-paid dower stipulated in the Nikahnama in the shape of house measuring 05 Marlas was reduced in measurement to 03 Marlas and 07 Sarsais---Applying the principles of law enunciated in the 'Imran Anwar Khan case' to the facts and circumstances of the instant lis, it became explicitly evident that decision of the Courts below regarding grant of Khula to the respondent against return or surrender of 25% of dower was fully justified based on evidence on record in the wake of charges of cruelty, torture and use of drugs against the petitioner since it was not a case of Khula simpliciter based on personal dislike of the respondent against the petitioner---Hence, notwithstanding that upper ceiling of surrender of dower contained in subsections (5) & (6) of S. 10 of the Act 1964 had been struck down by the Federal Shariat Court yet the decision was otherwise sustainable on the touchstone of principles of Islamic law reiterated and endorsed in the 'Imran Anwar Khan case'---High Court maintained the impugned judgments and was not inclined to interfere with the same in exercise of extraordinary and discretionary constitutional jurisdiction vested under Art. 199 of the Constitution---Constitutional petition filed by ex-husband/defendant, being merit-less, was dismissed, in circumstances.

MOHAMMAD MOHSIN RAZA vs ADDITIONAL DISTRICT JUDGE, JATOI, DISTRICT MUZAFFARGARH Ss — 2025 PLD 551 LAHORE-HIGH-COURT-LAHORE

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