2017 Y L R 1481
[Balochistan]
Before Jamal Khan Mandokhail and Zaheer -ud-Din Kakar, JJ
TANIA NASEER--- Petitioner
Versus
MUHAMMAD ZUBAIR and 2 others ---Respondents
C.P. No.931 of 2013, decided on 21st March, 2017.
Family Courts Act (XXXV of 1964) ---
----S. 7 & Schd.---Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S.2(a) ---Dissolution
of marriage on basis of khula ---Return of bridal gifts to husband---Scope---Petitioner/Ex -wife
got decree of dissolution of marriage on the basis of khula in consideration of her unpaid dower
amount and contended that anything given by husband was to be considered as bridal gifts which
were not liable to be recovered ---Respondent (ex -husband) contended that gold ornaments,
clothes and shoes given by him to the petitioner were returnable on dissolution of marriage ---
Validity ---Section 2(a) Dowry and Bridal Gifts (Restriction) Act, 1976 defined 'Bridal gift';
'dowry' and 'present' which showed that the articles of 'dowry', 'bridal gifts', 'presents' or all other
movable property were the belongings of bride ---Bridal gifts given by husband were absolute
property of wife and could not be snatched from her ---Under the Sharia, the marriage between a
man and a woman could be dissolved on the basis of Khula, for which some consideration which
was in the form of dower which the wife was entitled to receive at the time of marriage or on
demand was to be forgiven ---In the present case, only certain amount was mentioned in Column
No. 13 of the Nikah Nama as dower money, however, there was no mention of gold ornaments
therein ---Consideration for marriage was dower amount which had not been paid to the wife ---
Petitioner (wife) had waived her dower amount in consideration of Khula which was enough---
Appellate Court had failed to consider such aspect of the case which was an illegality ---Marriage
on the basis of Khula could be dissolved on the basis of dower mentioned in the column No. 13
of the Nikhanama ---Constitutional petition was accepted accordingly.
Ghulam Rasul v. Judge, Family Court 1991 CLC 1696 and Muhammad Bashir Ali
Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186 ref.
Muhammad Aslam Jamali for Petitioner.
Shams -ud-Din Achakzai for Respondent No.1.
Date of hearing: 15th March, 2017.
ORDER
ZAHEER -UD-DIN KAKAR, J. ---By this petition filed under Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), the petitioner prayed
the following relief:--
"It is therefore prayed that the record of lower court may kindly be ca lled for and after
examining and perusal of the same judgment/decree dated 7.11.2013 passed by
Additional Sessions Judge -V, Quetta/respondent No.3 be set aside by dismissing the
appeal filed by the respondent No.1 and the judgment/decree dated 3.11.2012 pa ssed by
Additional Family Judge/respondent No.2 be maintained in the interest of justice equity
and fair play."
2. Precisely stated, the facts for disposal of the instant petition are that the petitioner filed a
suit for dissolution of marriage against res pondent No.1 before the Court of District Judge,
Qeutta, which was transferred to the file of Additional Family Court, Quetta in which written
statement was filed. The Family Court "trial Court" dissolved the marriage ties between the
parties on the basis of Khula due to failure of reconciliation proceedings by means of order dated
7.5.2012 on the following manner: --
"Therefore, owing to such position, marriage tie between plaintiff Tania Naseer d/o
Naseer Ahmed and defendant Muhammad Zubair son of Muhammad Younas is hereby
dissolved on the basis of Khula in consideration of Khula, plaintiff is not entitled to
receive her unpaid dower amount Rs.300,000/ -."
3. The respondent No.1 in his written statement had claimed that he had given 135- 380
grams of gold ornaments, ten pairs of clothes and shoes to the petitioner, as such, he by not
objecting the dissolution of marriage/Nikah of the petitioner, claim return of the said gold
ornaments etc. The trial Court, out of pleadings of the parties, framed the following issues:
ISSUES.
1. Whether parents of defendant gave gold ornaments weight 135.380 grams, clothes
and shoes to the plaintiff at the time of Nikah? If so, whether same can be recovered
through this Court?
2. Relief?
4. Thereafter, the parties were directed to adduce evidence in support of their respective
claims, whereupon, the plaintiff produced two, PW -1 Yasir Naseer, PW -2 Waqar Hussain and
also got recorded her own statement. In rebuttal, respondent/ petitioner produced five witnesses,
namely DW -1 Muham mad Younas, DW -2 Imran Suhail, DW -3 Suhail Aslam, DW -Hameed
Azam, DW -5 Abdullah and lastly the respondent/petitioner got recorded his own statement.
5. The learned trial Court, after hearing the parties and evaluating the evidence, decreed the
suit to the extent of dissolution of marriage on the basis of Khula on the following manner: --
"As the sequel of above discussion, I came to the conclusion that the defendant has not
proved that gold ornaments according to receipt Ex,D/2- A, Ex.D/3 -A,Ex.D/3 -B and
Ex.D/4 -A, cloth and shoes were given to the plaintiff whereby in the view of aforesaid
judgments, same cannot be recovered through this Court. Thus, issue under consideration
is resolved in negative.
The plaintiff sought a decree of dissolution of marriage , on basis of Khula as well as the
recovery of her original documents, while the Khula has been extended in the favour of
the plaintiff to the extent of the documents of the plaintiff, direction have already been
passed to the defendant by this Court throu gh order dated 17.05.2011. To the extent of
the claim of the defendant, the issue No.1 in respect thereof was framed same has been
proved so far, whereby the issue No.1 is settled in negative. The decree sheet be
withdrawn with no order as to cost."
6. Feeling aggrieved from the judgment and decree dated 3.11.2012, to the extent of not
allowing the recovery of gold ornaments etc, the petitioner filed Family Appeal No.2 of 2013
before the Court of Additional District Judge -V, Quetta, which was accepted vide judgment and
decree dated 7th November 2013 and the petitioner was directed to return the marriage benefits
in the shape of gold ornaments weighing 135.380 grams to the appellant/defendant, hence the
instant appeal.
7. Learned counsel for the petitioner contended that the imposition of condition of return of
135.380 grams gold ornaments is against the law and facts; that gold ornaments have been given
as bridal gift, which are not part of the dower and at least cannot be based as consideration for
Khula.
8. Conversely, learned counsel for the respondent vehemently opposed the petition and
defended the judgment and decree, passed by the appellate Court.
9. We have heard learned counsel for the parties and have gone through the record. From
perusal of the reco rd it appears that the Nikah between the parties was solemnized on 15.4.2011
and before Rukhsati, the petitioner filed a suit for dissolution of marriage on the basis of Khula,
which was accepted and the trial Court dissolved the marriage tie between the p arties on the
basis of Khula and the trial Court held that the plaintiff/petitioner is not entitled to receive her
unpaid dower amount of Rs.300,000/ -.
10. As far as, question whether articles i.e. gold ornaments weighing 135.382 grams, clothes
and shoes g iven by the bride to the groom at the time of Nikah/marriage would be belonging of
the wife. Section 2(a) of the Dowry and Bridal Gifts (Restriction) Act, 1976 defines:
"(a) 'Bridal gift' means any property given as a gift before, at or after the marriage,
either directly or indirectly, by the bridegroom or his parents to the bride in connection
with the marriage but does not include Mehr;
(b) 'dowry' means any property given before, at or after the marriage, either directly
or indirectly, to the bride by h er parents in connection with the marriage but it does not
include property which the bride may inherit under the laws of inheritance and succession
applicable to her;
(c)
(d)
(e) 'present' means a gift of any property, not being a bridal gift or dowry , given
before, at or after the marriage, in either directly or indirectly to either party to a marriage
in connection with the marriage or to the relatives of the bride or bridegroom but does not
include Neundra and Salami."
11. The above Act clearly show s that the articles of dowry, bridal gifts, presents or all the
other movable property are the belongings of bride. Furthermore, in the case of Ghulam Rasul v.
Judge, Family Court 1991 CLC 1696, it is held that bridal gift given by husband is the absolute
property of wife and it could not be snatched away from her.
12. Furthermore, under the Islamic Sharia, the marriage between a man and a woman can be
dissolved on the basis of Khula, for which some consideration is formed. This is in the form of
dower whic h the wife is entitled to receive at the time of demand. In the instant case, only an
amount of Rs.3,00,000/ - was mentioned in Column No.13 of the Nikah Nama as dower money,
however, there is no mention of 135.380 grams gold in it. The consideration for ma rriage is
dower amount which has not been paid to the petitioner. The petitioner has waived her dower
amount in consideration of Khula, which in our view, is enough amount. The appellate Court has
failed to consider this aspect of the case, which is an ill egality. We rely upon the judgment of
Muhammad, Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another (2008 SCMR 186)
wherein it was held by the Hon'ble Supreme Court that the marriage on the basis of Khula can be
dissolved on the basis of dower menti oned in Column No.13.
13. In view of above discussion, the petition is hereby accepted. The judgment and decree
dated 7th November, 2013 of the Additional District Judge -V, Quetta are of no legal effect,
therefore, are set aside and the judgment and decree dated 3rd November 2012, passed by the
trial Court are up held.
MQ/41/Bal Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.