West Pakistan Family Courts Act (XXXV of 1964)---
----Ss. 5, Sched & 10---Constitution of Pakistan (1973), Art.199-- Constitutional petition---Dissolution of marriage on ground of Khula-- Khula, meaning of---`Khula' was a release from the matrimonial bond and right of Khula vested in the woman according to the dictates of Holy Qur'an---Jurisdiction vested with the Court to determine whether condition of Khula existed in the pleadings or the evidence led by the parties--- Court would release the woman from her matrimonial bond by way of Khula---Such right purely rested with the woman according to the dictates of Holy Qur'an/because if a woman demanded right of Khula, she had to return all the benefits received by her from her husband---Defendant woman, in the present case, had not filed suit for dissolution of marriage and had not asked for Khula even in her written statement in suit for restitution of conjugal rights filed by her husband-- While determining the right of Khula, Court had to use its best prudence, capability and capacity to find out the truth and the prevalent conditions existing for such rights---Decree would follow the prayer in the plaint---No suit for dissolution of marriage was filed by defendant in case with the averment that she wanted dissolution of marriage on basis of Khula, but Family Court keeping in view the amended provisions of S. 9 of West Pakistan Family. Court Act, 1964 treating written statement of defendant woman filed in suit for restitution of conjugal rights filed by her husband, as plaint, dissolved marriage on basis of Khula and dismissed suit filed by plaintiff-husband---Validity---Court could not pass decree on basis of Khula while dismissing the suit for restitution of conjugal rights---Chairman Arbitration Council on receiving judgment and decree passed by Family Court passed order by way of approving reconciliation---Family Court being corum non judice summoned Chairman on application of plaintiff husband and directed him to issue a certificate of divorce which was arbitrary exercise of jurisdiction by Family Court---Family Court had no jurisdiction to interfere in the proceedings of Chairman Arbitration Council after being functus officio and could not direct Chairman to issue certificate of Talaq on basis of decree passed in suit for restitution of conjugal rights-- Judgments of Family Court were set aside being without lawful authority and case was remanded to be decided afresh in accordance with law.
Malik Ijaz Hussain Gorcha for Petitioner.
Mst. SOFIA RASOOL VS Miss ABHAR GULL, JUDGE, FAMILY COURT, LAHORE and others2004 C L C 1932[Lahore]Before Mrs. Fakhar-un-Nisa Khokhar, JMst. SOFIA RASOOL---PetitionerVersusMiss ABHAR GULL, JUDGE, FAMILY COURT, LAHORE and others---RespondentsWrit Petitions Nos.8503 and 398 of 2004, heard on 21/06/2004.
----Ss. 5, Sched & 10---Constitution of Pakistan (1973), Art.199-- Constitutional petition---Dissolution of marriage on ground of Khula-- Khula, meaning of---`Khula' was a release from the matrimonial bond and right of Khula vested in the woman according to the dictates of Holy Qur'an---Jurisdiction vested with the Court to determine whether condition of Khula existed in the pleadings or the evidence led by the parties--- Court would release the woman from her matrimonial bond by way of Khula---Such right purely rested with the woman according to the dictates of Holy Qur'an/because if a woman demanded right of Khula, she had to return all the benefits received by her from her husband---Defendant woman, in the present case, had not filed suit for dissolution of marriage and had not asked for Khula even in her written statement in suit for restitution of conjugal rights filed by her husband-- While determining the right of Khula, Court had to use its best prudence, capability and capacity to find out the truth and the prevalent conditions existing for such rights---Decree would follow the prayer in the plaint---No suit for dissolution of marriage was filed by defendant in case with the averment that she wanted dissolution of marriage on basis of Khula, but Family Court keeping in view the amended provisions of S. 9 of West Pakistan Family. Court Act, 1964 treating written statement of defendant woman filed in suit for restitution of conjugal rights filed by her husband, as plaint, dissolved marriage on basis of Khula and dismissed suit filed by plaintiff-husband---Validity---Court could not pass decree on basis of Khula while dismissing the suit for restitution of conjugal rights---Chairman Arbitration Council on receiving judgment and decree passed by Family Court passed order by way of approving reconciliation---Family Court being corum non judice summoned Chairman on application of plaintiff husband and directed him to issue a certificate of divorce which was arbitrary exercise of jurisdiction by Family Court---Family Court had no jurisdiction to interfere in the proceedings of Chairman Arbitration Council after being functus officio and could not direct Chairman to issue certificate of Talaq on basis of decree passed in suit for restitution of conjugal rights-- Judgments of Family Court were set aside being without lawful authority and case was remanded to be decided afresh in accordance with law.
Malik Ijaz Hussain Gorcha for Petitioner.
JUDGMENT
This be considered as admitted case. Through this single judgment Writ Petition No.8503 of 2004 and 398 of 2004 are decided. Respondent No.2 is proceeded ex parte.
2. Brief facts in the instant writ petition are that a decree of dissolution of marriage on the basis of Khula was issued by learned Judge Family Court, Lahore which according to the petitioner was never claimed by her as she did not file a suit for dissolution of marriage. She was at America and after getting knowledge regarding the same she rushed to Pakistan and has filed instant writ petitions.
3. Pre-admission notices were issued to respondent No.2 and his counsel has appeared and this case was heard at length but during the proceeding there was likelihood of compromise between the parties and the case was adjourned to 16-6-2004 and on that day learned counsel for the respondent No.2 in order to avoid this Court filed application for adjournment. He was given another opportunity to filed application for arguments or reply but he failed to do so, made against the respondent No.2.
4. Arguments advanced by the learned counsel for the petitioner are that learned Judge Family Court issued a decree in a suit filed by the respondent No.2 for restitution of conjugal rights and the petitioner filed written statement but in the written statement she never claimed decree on `the basis of Khula'. Even after the decree was issued illegally by the learned Judge, Family Court on the basis of Khula respondent No.2 filed an application for issuance of certificate of Talaq before the Chairman Arbitration Council /respondent No.3. The petitioner appeared before the Chairman Arbitration Council and asserted that neither she has demanded Talaq on the basis of Khula nor she wants the same in any manner for the sake of her kids and she does not want Khula. Respondent No.2 absented himself before the Nazim and on the basis of statement of petitioner the Chairman accepted reconciliation and passed order, dated 17-2-2004 by way of approving reconciliation Allan-e- Masalhet. After getting the knowledge of order, dated 17-2-2004, respondent No.2 gave an application before the learned Judge Family Court respondent No.1 malafidely and learned Judge, Family Court being functus officio on 15-4-2004 directed respondent No.3 Chairman, Arbitration Council to issue certificate of Talaq on the basis of decree, dated 4-12-2003. Learned counsel for the petitioner further argued that on 10-5-2004 when the case was called by respondent No.1ilearned Judge Family Court, respondent No.3 was present in the Court and learned Judge Family Court directed respondent No.3 to present certificate of Talaq to respondent No.2 without any delay otherwise she will send him to judicial lock-up. Learned Judge, Family Court acted in an arbitrary manner which wag not called for through the judgment and decree passed by learned Judge Family Court on the basis of Khula while considering the written statement as plaint under section 9 of the Family Court Act, 1964, is entirely illegal and the direction of respondent No.3 to issue certificate of Talaq to petitioner is glaring illegality and arbitrary. As the order, dated 17-2-204 passed by Chairman could only be assailed in a writ petition before the High Court and the learned Judge Family Court being corum non judice had no authority under the law to direct respondent No.1 to issue certificate of Talaq keeping in view the reconciliation order, dated 17-2-2004 by Chairman Arbitration Council. Learned counsel for the petitioner further argued that, being aggrieved from the manner of conducting aforesaid case by the learned Judge Family Court petitioner preferred an application for transfer and requested the learned Judge Family Court to adjourn the case in view of transfer application moved to the learned District Judge as the same Court had issued notice to other party and summoned the record of the case and even the case was fixed for 2-1-2004, learned trial Court without any hesitation dismissed the suit for restitution of conjugal rights filed by the plaintiff and passed the decree on the basis of Khula through impugned judgment and decree, dated 4-12-2003 which is entirely against law and facts of the case as no assertion was made by the petitioner to get the decree on the basis of Khula as the petitioner had children out of her wedlock and she alongwith her kids is living happily in America and she never wanted to disturb herself or her kids by way of getting Khula and she tried to locate telephone number and address of respondent/plaintiff but failed.
5. I have heard the learned counsel for the petitioner and perused the record.
6. The suit for restitution of conjugal rights was filed by the respondent/plaintiff Muhammad Nadeem Qadir with a prayer that a decree for restitution of conjugal rights be passed in his favour on 5th March, 2003. Written statement was filed by the petitioner. On preliminary objection of non-maintainability of suit and the jurisdiction of the Court on the basis that plaintiff is residing in Singapore and defendant is residing in America having the nationality of America, that there were issues out of the wedlock of plaintiff and defendant; and no maintenance allowance has been paid by the plaintiff and he deserted himself from the house of the defendant and that the plaint is not signed by him and he was estopped by his conduct and that he has taken 20,000 dollars and jewellery worth Rs.10,00,000 from the defendant and there is no chance of reconciliation. In the prayer she prayed for that the suit of the plaintiff be dismissed and decree for maintenance at the rate of 1000 dollars per month per child may be passed against him.
7. It is always settled law that the decree follows the prayer in the plaint. No suit for dissolution of marriage was filed by the petitioner with the averment that she wants dissolution of marriage on the basis of Khula, Learned Judge Family Court, keeping in view the amended provision of section 9 of Family Courts Act, 1964 treating it as plaint dissolved the marriage on the basis of Khula and dismissed the suit filed by the plaintiff. The provisions of section 9 are reproduced as below:---
"Amendment of section 9 W.P. Act XXXV of 1964. In the said Act in section 9---
(1b) A defendant wife may, in-the written statement to a suit for restitution of conjugal rights, make a claim for dissolution of marriage including Khula which shall be deemed as a plaint and no separate suit shall be for it:
Provided that the proviso to subsection (4) of section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of Khula.
8. From the perusal of written statement the petitioner has nowhere pleaded for dissolution .of marriage on the basis of Khula nor she prayed for dissolving the marriage on the basis of Khula. It is astonishing how learned Judge Family Court even without filing suit for dissolution of marriage treating the written statement as plaint has granted Khula when no prayer for Khula is made nor any prayer for dissolving the marriage on the basis of Khula is added in the written statement.
9. Moreover, section 10 of Family Court Act as amended is reproduced below:---
"provided that notwithstanding any decision or judgment of any Court or Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage."
If reconciliation fails then learned Judge Family Court is bound to pass a decree for dissolution of marriage forthwith and restore Haq Mehr to the husband in consideration of marriage at the time of marriage. From the record it is apparent that the plaintiff/respondent was in America proposition of reconciliation was not made by the Court in the suit for restitution of conjugal rights on 4-12-2003 respondent made the following statement:
And thereafter learned Judge Family Court passed the impugned judgment which is re-produced below:---
This is glaring illegality committed by the learned Judge Family Court who has arbitrarily passed decree on the basis of Khula in consideration of Haq Mehr without even recording the statement of defendant or her counsel.
10. " Khula" is a release from the matrimonial bond. The right vest in the woman according to the dictates of Holy Qur'an. Jurisdiction vests with the Court to determine whether condition of Khula exist in the evidence, in the pleadings or the evidence led by the parties. The Court' will release the woman from her matrimonial bond by way of Khula. This right purely rests with the woman according to the dictates of Holy Qur'an because if a woman demands right of Khula she has to return all the benefits received by her from her husband but here is a case where a woman has not filed a suit for dissolution of marriage and has not asked for Khula even in the written statement filed in the suit for restitution of conjugal rights. While determining the right of Khula Court is desired by law to use his best prudence, capability and capacity to find out the truth and the prevalent condition existing for such right. While going through the prayer of written statement it does not contain any prayer for Khula instead in the written statement the petitioner has prayer for allowing maintenance allowance and dismissal of suit for, restitution of conjugal rights, therefore, the Court could not pass a decree on the basis of Khula while dismissing the suit for restitution of conjugal rights.
11. In the second writ petition grievance of the petitioner is that Chairman Arbitration Council passed an order, dated 17-2-2004 by way of approving reconciliation "ﺖﺤﻠﺎﺻﻣﻦﻼﻋﺍ" and the learned Judge Family Court being coram non judice summoned the Chairman on an application filed by respondent No.2 and directed him to issue a certificate of) divorce, which is arbitrary exercise of jurisdiction.
12. Legislature has deviated from the proceedings of C.P.C. and Qanun-e-Shahadat. The judgment and decree passed by the learned Judge, Family Court is compulsorily sent to the Chairman Arbitration Council and the Chairman Arbitration Council treats the same as proceedings in section 7 of the Muslim Family Laws Ordinance, 1961 and upon receipt of such copy the Chairman shall proceed as if he has received an intimation of divorce and shall constitute an Arbitration Council for bringing about reconciliation between the parties and take all steps necessary to bring about such reconciliation. In the present case when the respondent No.2 filed an application for issuance of certificate of divorce before the Chairman Arbitration Council the present petitioner after service of notice appeared and stated that she has not demanded Talaq on the basis of Khula nor she wants the same in any manner in the larger interest of her kids. The Chairman passed an order, dated 17-2-2004 by way of approving the reconciliation "Elan e-Masalhet". Learned Judge Family Court had no jurisdiction to interfere in the proceedings of Chairman Arbitration Council after being functus officio and could not direct the Chairman to issue a certificate of Talaq on the basis of decree, dated 4-12-2003 in a suit for restitution of conjugal rights.
13. Therefore, the learned Judge Family Court wrongly assumed the jurisdiction which was not vested in the Court concerned to set aside the order passed by learned Chairman Arbitration Council. Both the writ petitions are accepted and the impugned judgments being without lawful authority are set aside and the case is remanded to the learned District Judge to entrust the same to some other Court of competent jurisdiction to proceed in accordance with law. No order as to costs.
H.B.T./S-168/L Petition accepted.
This be considered as admitted case. Through this single judgment Writ Petition No.8503 of 2004 and 398 of 2004 are decided. Respondent No.2 is proceeded ex parte.
2. Brief facts in the instant writ petition are that a decree of dissolution of marriage on the basis of Khula was issued by learned Judge Family Court, Lahore which according to the petitioner was never claimed by her as she did not file a suit for dissolution of marriage. She was at America and after getting knowledge regarding the same she rushed to Pakistan and has filed instant writ petitions.
3. Pre-admission notices were issued to respondent No.2 and his counsel has appeared and this case was heard at length but during the proceeding there was likelihood of compromise between the parties and the case was adjourned to 16-6-2004 and on that day learned counsel for the respondent No.2 in order to avoid this Court filed application for adjournment. He was given another opportunity to filed application for arguments or reply but he failed to do so, made against the respondent No.2.
4. Arguments advanced by the learned counsel for the petitioner are that learned Judge Family Court issued a decree in a suit filed by the respondent No.2 for restitution of conjugal rights and the petitioner filed written statement but in the written statement she never claimed decree on `the basis of Khula'. Even after the decree was issued illegally by the learned Judge, Family Court on the basis of Khula respondent No.2 filed an application for issuance of certificate of Talaq before the Chairman Arbitration Council /respondent No.3. The petitioner appeared before the Chairman Arbitration Council and asserted that neither she has demanded Talaq on the basis of Khula nor she wants the same in any manner for the sake of her kids and she does not want Khula. Respondent No.2 absented himself before the Nazim and on the basis of statement of petitioner the Chairman accepted reconciliation and passed order, dated 17-2-2004 by way of approving reconciliation Allan-e- Masalhet. After getting the knowledge of order, dated 17-2-2004, respondent No.2 gave an application before the learned Judge Family Court respondent No.1 malafidely and learned Judge, Family Court being functus officio on 15-4-2004 directed respondent No.3 Chairman, Arbitration Council to issue certificate of Talaq on the basis of decree, dated 4-12-2003. Learned counsel for the petitioner further argued that on 10-5-2004 when the case was called by respondent No.1ilearned Judge Family Court, respondent No.3 was present in the Court and learned Judge Family Court directed respondent No.3 to present certificate of Talaq to respondent No.2 without any delay otherwise she will send him to judicial lock-up. Learned Judge, Family Court acted in an arbitrary manner which wag not called for through the judgment and decree passed by learned Judge Family Court on the basis of Khula while considering the written statement as plaint under section 9 of the Family Court Act, 1964, is entirely illegal and the direction of respondent No.3 to issue certificate of Talaq to petitioner is glaring illegality and arbitrary. As the order, dated 17-2-204 passed by Chairman could only be assailed in a writ petition before the High Court and the learned Judge Family Court being corum non judice had no authority under the law to direct respondent No.1 to issue certificate of Talaq keeping in view the reconciliation order, dated 17-2-2004 by Chairman Arbitration Council. Learned counsel for the petitioner further argued that, being aggrieved from the manner of conducting aforesaid case by the learned Judge Family Court petitioner preferred an application for transfer and requested the learned Judge Family Court to adjourn the case in view of transfer application moved to the learned District Judge as the same Court had issued notice to other party and summoned the record of the case and even the case was fixed for 2-1-2004, learned trial Court without any hesitation dismissed the suit for restitution of conjugal rights filed by the plaintiff and passed the decree on the basis of Khula through impugned judgment and decree, dated 4-12-2003 which is entirely against law and facts of the case as no assertion was made by the petitioner to get the decree on the basis of Khula as the petitioner had children out of her wedlock and she alongwith her kids is living happily in America and she never wanted to disturb herself or her kids by way of getting Khula and she tried to locate telephone number and address of respondent/plaintiff but failed.
5. I have heard the learned counsel for the petitioner and perused the record.
6. The suit for restitution of conjugal rights was filed by the respondent/plaintiff Muhammad Nadeem Qadir with a prayer that a decree for restitution of conjugal rights be passed in his favour on 5th March, 2003. Written statement was filed by the petitioner. On preliminary objection of non-maintainability of suit and the jurisdiction of the Court on the basis that plaintiff is residing in Singapore and defendant is residing in America having the nationality of America, that there were issues out of the wedlock of plaintiff and defendant; and no maintenance allowance has been paid by the plaintiff and he deserted himself from the house of the defendant and that the plaint is not signed by him and he was estopped by his conduct and that he has taken 20,000 dollars and jewellery worth Rs.10,00,000 from the defendant and there is no chance of reconciliation. In the prayer she prayed for that the suit of the plaintiff be dismissed and decree for maintenance at the rate of 1000 dollars per month per child may be passed against him.
7. It is always settled law that the decree follows the prayer in the plaint. No suit for dissolution of marriage was filed by the petitioner with the averment that she wants dissolution of marriage on the basis of Khula, Learned Judge Family Court, keeping in view the amended provision of section 9 of Family Courts Act, 1964 treating it as plaint dissolved the marriage on the basis of Khula and dismissed the suit filed by the plaintiff. The provisions of section 9 are reproduced as below:---
"Amendment of section 9 W.P. Act XXXV of 1964. In the said Act in section 9---
(1b) A defendant wife may, in-the written statement to a suit for restitution of conjugal rights, make a claim for dissolution of marriage including Khula which shall be deemed as a plaint and no separate suit shall be for it:
Provided that the proviso to subsection (4) of section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of Khula.
8. From the perusal of written statement the petitioner has nowhere pleaded for dissolution .of marriage on the basis of Khula nor she prayed for dissolving the marriage on the basis of Khula. It is astonishing how learned Judge Family Court even without filing suit for dissolution of marriage treating the written statement as plaint has granted Khula when no prayer for Khula is made nor any prayer for dissolving the marriage on the basis of Khula is added in the written statement.
9. Moreover, section 10 of Family Court Act as amended is reproduced below:---
"provided that notwithstanding any decision or judgment of any Court or Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage."
If reconciliation fails then learned Judge Family Court is bound to pass a decree for dissolution of marriage forthwith and restore Haq Mehr to the husband in consideration of marriage at the time of marriage. From the record it is apparent that the plaintiff/respondent was in America proposition of reconciliation was not made by the Court in the suit for restitution of conjugal rights on 4-12-2003 respondent made the following statement:
And thereafter learned Judge Family Court passed the impugned judgment which is re-produced below:---
This is glaring illegality committed by the learned Judge Family Court who has arbitrarily passed decree on the basis of Khula in consideration of Haq Mehr without even recording the statement of defendant or her counsel.
10. " Khula" is a release from the matrimonial bond. The right vest in the woman according to the dictates of Holy Qur'an. Jurisdiction vests with the Court to determine whether condition of Khula exist in the evidence, in the pleadings or the evidence led by the parties. The Court' will release the woman from her matrimonial bond by way of Khula. This right purely rests with the woman according to the dictates of Holy Qur'an because if a woman demands right of Khula she has to return all the benefits received by her from her husband but here is a case where a woman has not filed a suit for dissolution of marriage and has not asked for Khula even in the written statement filed in the suit for restitution of conjugal rights. While determining the right of Khula Court is desired by law to use his best prudence, capability and capacity to find out the truth and the prevalent condition existing for such right. While going through the prayer of written statement it does not contain any prayer for Khula instead in the written statement the petitioner has prayer for allowing maintenance allowance and dismissal of suit for, restitution of conjugal rights, therefore, the Court could not pass a decree on the basis of Khula while dismissing the suit for restitution of conjugal rights.
11. In the second writ petition grievance of the petitioner is that Chairman Arbitration Council passed an order, dated 17-2-2004 by way of approving reconciliation "ﺖﺤﻠﺎﺻﻣﻦﻼﻋﺍ" and the learned Judge Family Court being coram non judice summoned the Chairman on an application filed by respondent No.2 and directed him to issue a certificate of) divorce, which is arbitrary exercise of jurisdiction.
12. Legislature has deviated from the proceedings of C.P.C. and Qanun-e-Shahadat. The judgment and decree passed by the learned Judge, Family Court is compulsorily sent to the Chairman Arbitration Council and the Chairman Arbitration Council treats the same as proceedings in section 7 of the Muslim Family Laws Ordinance, 1961 and upon receipt of such copy the Chairman shall proceed as if he has received an intimation of divorce and shall constitute an Arbitration Council for bringing about reconciliation between the parties and take all steps necessary to bring about such reconciliation. In the present case when the respondent No.2 filed an application for issuance of certificate of divorce before the Chairman Arbitration Council the present petitioner after service of notice appeared and stated that she has not demanded Talaq on the basis of Khula nor she wants the same in any manner in the larger interest of her kids. The Chairman passed an order, dated 17-2-2004 by way of approving the reconciliation "Elan e-Masalhet". Learned Judge Family Court had no jurisdiction to interfere in the proceedings of Chairman Arbitration Council after being functus officio and could not direct the Chairman to issue a certificate of Talaq on the basis of decree, dated 4-12-2003 in a suit for restitution of conjugal rights.
13. Therefore, the learned Judge Family Court wrongly assumed the jurisdiction which was not vested in the Court concerned to set aside the order passed by learned Chairman Arbitration Council. Both the writ petitions are accepted and the impugned judgments being without lawful authority are set aside and the case is remanded to the learned District Judge to entrust the same to some other Court of competent jurisdiction to proceed in accordance with law. No order as to costs.
H.B.T./S-168/L Petition accepted.
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