(a) West Pakistan Family Courts Act (XXXV of 1964)---
----Ss. 5, Sched. & 10(4)---Constitution of Pakistan, Art.199----Constitutional petition---Plaintiff (wife) filed suit for dissolution of marriage on the ground of khula and non-payment of maintenance---Defendant (husband) contested the suit and filed suit for restitution of conjugal rights---Trial Court decreed the suit for dissolution of marriage whereas dismissed the suit for restitution of conjugal rights---Appellate Court maintained judgments and decrees passed by Trial Court---Contention by husband was that without the return of dower and other articles allegedly removed by the wife from his house, a decree for dissolution of marriage on ground of khula could not have been passed---Validity---Rupees 1000 was fixed as dower and paid at the time of marriage---Husband, in the written statement had not specifically claimed the return of dower so an implied waiver was attracted on his part---Under the provision of S.10(4) of the West Pakistan Family Courts Act, 1964, 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 maher" received by the wife in consideration of Khula divorce, 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---Not only reconciliation proceedings had failed, in the present case, but the wife had categorically stated on oath that she had severe hatred towards the husband---Husband had been living abroad throughout---Contention that the wife had taken ornaments, garments and cash amount from his mother could not be accepted and if in fact she had taken these articles from his mother, such would not amount to benefits of marriage taken from the husband---Decree was passed by the court of competent jurisdiction 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.
PLD 1967 SC 97; PLD 2004 Lah. 399; PLD 1968 Lah. 411; PLD 1990 Lah. 71; 2006 MLD 83; PLD 2009 Pesh. 92; 2007 CLC 505; 2006 CLC 1662 and PLD 2006 Kar. 272 ref.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on the basis of khula---Wife had categorically stated before the Trial Court that she had severe hatred towards the husband and was not ready to live with him under any condition---Such statement on oath coupled with the failure of reconciliation proceedings was sufficient to dissolve the marriage on the basis of khula.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
---S. 10(4)---Dissolution of marriage on the basis of khula---Return of dower---Scope---Under the provisions of S.10(4) of the West Pakistan Family Courts Act, 1964, 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 maher" received by the wife in consideration of khula divorce, 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.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
----Ss. 5, Sched. & S. 10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Return of dower or benefits of marriage was not condition precedent for a decree for dissolution of marriage in view of the provisions of S.10(4) of the West Pakistan Family Courts Act, 1964 [as amended].
Syed Kalim Ahmad for Petitioner.
Date of hearing: 29th November, 2010.
WAHID-UL-ISLAM VS SHAHEEN AKHTAR2011 CLC 566[Lahore]Before Rauf Ahmad Sheikh, JWAHID-UL-ISLAM---PetitionerVersusSHAHEEN AKHTAR and 2 others---RespondentsWrit Petition No. 17398 of 2005, heard on 29/11/2010.
JUDGMENT
RAUF AHMAD SHEIKH, J.---The petitioner has challenged the judgment and decree dated 9-12-2004 passed by the learned Judge Family Court, Sialkot, whereby suit for dissolution of marriage filed by the respondent No.1 was decreed and suit for restitution of conjugal rights filed by the petitioner was dismissed and also the judgment and decree dated 21-4-2005 passed by the learned Addl. District Judge, Sialkot, dismissing the appeal filed by the petitioner against the judgment and decree of the learned trial Court.
2. The respondent had filed a suit for dissolution of marriage on the ground of non-payment of maintenance and khula. She contended that the defendant/petitioner had turned her out of house just after one month of the marriage and had gone abroad, where he contracted another marriage and is father of a child. She further alleged that due to attitude of the petitioner/defendant, severe hatred had developed against him and she cannot live with him within limits of God. The defendant/petitioner contested the suit and contended that the respondent/plaintiff had left his house along with her mother on the pretext of her treatment and also took ornaments weighing 35 tolas, garments and cash amount of Rs.35000 and he is. entitled the recovery of same. The defendant had also filed a suit for restitution of conjugal rights.
3. The learned trial Court after failure of pre-trial reconciliation framed the following issues:--
(1)Whether the plaintiff is entitled to grant of decree for dissolution of marriage, if so, on what grounds? OPP
(2)If above issue is not proved, whether the defendant is entitled to decree for restitution of conjugal rights? OPD
(3)Relief.
4. The respondent/plaintiff made a statement before the Court that she was not ready to live with the defendant at all under any circumstance, and that she has severe hatred towards him. It was asserted that they cannot live together so she prayed for a decree for dissolution of marriage on the principle of khula in lieu of her claim for maintenance. On this the learned trial Court proceeded on to pass a decree for dissolution of marriage and dismissed the suit for restitution, of conjugal rights.
5. The respondent/ plaintiff did not appear in spite of service through adult male member of the, family.
6. I have heard the arguments advanced by the learned counsel for the petitioner at length. He has contended that without return of dower t and other articles allegedly removed by the respondent from his house, a decree for dissolution of marriage could not have been passed. It is contended that without affording an opportunity to cross-examine the respondent/plaintiff and without recording of evidence of the defendant/petitioner, the suit for dissolution of marriage and the suit for restitution of conjugal rights could have not been disposed of. It is urged that the judgment and decrees are nullity in the eyes of law and should be set aside and the suit should be remanded to the learned trial Court for recording evidence and decision afresh. In support of contentions raised reliance is placed on PLD 1967 SC 97, PLD 2004 Lah. 399, PLD 1968 Lahore 411, PLD 1990 Lahore 71, 2006 MLD 83, PLD 2009 Pesh. 92, 2007 CLC 505, 2006 CLC 1662 and PLD 2006 Karachi 272.
It is further contended that the learned trial Court had not conducted pre-trial reconciliation proceedings and as such had failed to act in accordance with law so the impugned judgment and decree are liable to be set aside on this score alone.
7. The petitioner/defendant has not submitted the copy of order sheet to substantiate the contention regarding omission to conduct pre-trial reconciliation proceedings. However, the copy of judgment passed by the learned trial Court vividly reveals that reconciliation proceedings did not bear fruit. A presumption of truth is attached to the judicial proceedings. The plaintiff/respondent had categorically stated before the learned trial Court that she has severe hatred towards the petitioner and is not ready to live with him under any condition. This statement on oath coupled with the failure of reconciliation proceedings was sufficient to dissolve the marriage on the principle of khula. She offered that she will forego her right to get maintenance in lieu of khula divorce. In the plaint she had categorically prayed for dissolution of marriage on the principle of khula and the learned trial Court should have dissolved the marriage on failure of reconciliation proceedings in view of provisio of section 10(4) of the Family Courts Act, 1964. Admittedly a sum of Rs.1000 was fixed as dower and paid at the time of marriage. The defendant in the written statement had not specifically claimed the return of dower so an implied waiver was attracted on his part in this respect. No doubt the wife claming khula divorce is under obligation to return the dower and other benefits which might have passed to her. Under the provision of section 10(4) of the Family Courts Act, 1964, it is mandatory for the court to pass decree for dissolution of marriage On failure of reconciliation proceedings and direct the return of "Haq maher" received by the wife in consideration of khula divorce, however, if the husband does not claim the, return of dower specifically an implied waiver would be attracted on his part and in this eventuality the wife is not obliged to even return the dower. Return of dower or benefits of marriage is not condition precedent for a decree for dissolution of marriage in view of the provisions of section 10(4) of the Family Courts Act, 1964 as amended through Ordinance LV of 2002 dated 1-10-2002. In this case not only reconciliation proceedings failed but the respondent/plaintiff categorically stated on oath that she had severe hatred towards the petitioner. The petitioner/defendant has been living in England throughout. The contention that the petitioner had taken ornaments, garments and cash amount from his mother cannot be accepted and if in fact she has taken these articles from his mother, this will not amount to benefits of marriage taken from the petitioner/defendant. The decree for dissolution of marriage was passed about 5-1/2 years back and as per report of the process server the respondent is remarried and is living in the house of her in-laws. The learned counsel for the petitioner when confronted with this situation, could not refute it. The decree was passed by the Court of competent jurisdiction and does not suffer from any illegality or infirmity due to alleged non return of dower, as the petitioner/defendant had not specifically claimed it. The case-law cited at the bar, therefore is not applicable on the facts of present petition, which is devoid of merits and is accordingly dismissed.
M.U.Y./W-36/LPetition dismissed.
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----Ss. 5, Sched. & 10(4)---Constitution of Pakistan, Art.199----Constitutional petition---Plaintiff (wife) filed suit for dissolution of marriage on the ground of khula and non-payment of maintenance---Defendant (husband) contested the suit and filed suit for restitution of conjugal rights---Trial Court decreed the suit for dissolution of marriage whereas dismissed the suit for restitution of conjugal rights---Appellate Court maintained judgments and decrees passed by Trial Court---Contention by husband was that without the return of dower and other articles allegedly removed by the wife from his house, a decree for dissolution of marriage on ground of khula could not have been passed---Validity---Rupees 1000 was fixed as dower and paid at the time of marriage---Husband, in the written statement had not specifically claimed the return of dower so an implied waiver was attracted on his part---Under the provision of S.10(4) of the West Pakistan Family Courts Act, 1964, 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 maher" received by the wife in consideration of Khula divorce, 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---Not only reconciliation proceedings had failed, in the present case, but the wife had categorically stated on oath that she had severe hatred towards the husband---Husband had been living abroad throughout---Contention that the wife had taken ornaments, garments and cash amount from his mother could not be accepted and if in fact she had taken these articles from his mother, such would not amount to benefits of marriage taken from the husband---Decree was passed by the court of competent jurisdiction 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.
PLD 1967 SC 97; PLD 2004 Lah. 399; PLD 1968 Lah. 411; PLD 1990 Lah. 71; 2006 MLD 83; PLD 2009 Pesh. 92; 2007 CLC 505; 2006 CLC 1662 and PLD 2006 Kar. 272 ref.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on the basis of khula---Wife had categorically stated before the Trial Court that she had severe hatred towards the husband and was not ready to live with him under any condition---Such statement on oath coupled with the failure of reconciliation proceedings was sufficient to dissolve the marriage on the basis of khula.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
---S. 10(4)---Dissolution of marriage on the basis of khula---Return of dower---Scope---Under the provisions of S.10(4) of the West Pakistan Family Courts Act, 1964, 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 maher" received by the wife in consideration of khula divorce, 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.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
----Ss. 5, Sched. & S. 10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Return of dower or benefits of marriage was not condition precedent for a decree for dissolution of marriage in view of the provisions of S.10(4) of the West Pakistan Family Courts Act, 1964 [as amended].
Syed Kalim Ahmad for Petitioner.
Date of hearing: 29th November, 2010.
JUDGMENT
RAUF AHMAD SHEIKH, J.---The petitioner has challenged the judgment and decree dated 9-12-2004 passed by the learned Judge Family Court, Sialkot, whereby suit for dissolution of marriage filed by the respondent No.1 was decreed and suit for restitution of conjugal rights filed by the petitioner was dismissed and also the judgment and decree dated 21-4-2005 passed by the learned Addl. District Judge, Sialkot, dismissing the appeal filed by the petitioner against the judgment and decree of the learned trial Court.
2. The respondent had filed a suit for dissolution of marriage on the ground of non-payment of maintenance and khula. She contended that the defendant/petitioner had turned her out of house just after one month of the marriage and had gone abroad, where he contracted another marriage and is father of a child. She further alleged that due to attitude of the petitioner/defendant, severe hatred had developed against him and she cannot live with him within limits of God. The defendant/petitioner contested the suit and contended that the respondent/plaintiff had left his house along with her mother on the pretext of her treatment and also took ornaments weighing 35 tolas, garments and cash amount of Rs.35000 and he is. entitled the recovery of same. The defendant had also filed a suit for restitution of conjugal rights.
3. The learned trial Court after failure of pre-trial reconciliation framed the following issues:--
(1)Whether the plaintiff is entitled to grant of decree for dissolution of marriage, if so, on what grounds? OPP
(2)If above issue is not proved, whether the defendant is entitled to decree for restitution of conjugal rights? OPD
(3)Relief.
4. The respondent/plaintiff made a statement before the Court that she was not ready to live with the defendant at all under any circumstance, and that she has severe hatred towards him. It was asserted that they cannot live together so she prayed for a decree for dissolution of marriage on the principle of khula in lieu of her claim for maintenance. On this the learned trial Court proceeded on to pass a decree for dissolution of marriage and dismissed the suit for restitution, of conjugal rights.
5. The respondent/ plaintiff did not appear in spite of service through adult male member of the, family.
6. I have heard the arguments advanced by the learned counsel for the petitioner at length. He has contended that without return of dower t and other articles allegedly removed by the respondent from his house, a decree for dissolution of marriage could not have been passed. It is contended that without affording an opportunity to cross-examine the respondent/plaintiff and without recording of evidence of the defendant/petitioner, the suit for dissolution of marriage and the suit for restitution of conjugal rights could have not been disposed of. It is urged that the judgment and decrees are nullity in the eyes of law and should be set aside and the suit should be remanded to the learned trial Court for recording evidence and decision afresh. In support of contentions raised reliance is placed on PLD 1967 SC 97, PLD 2004 Lah. 399, PLD 1968 Lahore 411, PLD 1990 Lahore 71, 2006 MLD 83, PLD 2009 Pesh. 92, 2007 CLC 505, 2006 CLC 1662 and PLD 2006 Karachi 272.
It is further contended that the learned trial Court had not conducted pre-trial reconciliation proceedings and as such had failed to act in accordance with law so the impugned judgment and decree are liable to be set aside on this score alone.
7. The petitioner/defendant has not submitted the copy of order sheet to substantiate the contention regarding omission to conduct pre-trial reconciliation proceedings. However, the copy of judgment passed by the learned trial Court vividly reveals that reconciliation proceedings did not bear fruit. A presumption of truth is attached to the judicial proceedings. The plaintiff/respondent had categorically stated before the learned trial Court that she has severe hatred towards the petitioner and is not ready to live with him under any condition. This statement on oath coupled with the failure of reconciliation proceedings was sufficient to dissolve the marriage on the principle of khula. She offered that she will forego her right to get maintenance in lieu of khula divorce. In the plaint she had categorically prayed for dissolution of marriage on the principle of khula and the learned trial Court should have dissolved the marriage on failure of reconciliation proceedings in view of provisio of section 10(4) of the Family Courts Act, 1964. Admittedly a sum of Rs.1000 was fixed as dower and paid at the time of marriage. The defendant in the written statement had not specifically claimed the return of dower so an implied waiver was attracted on his part in this respect. No doubt the wife claming khula divorce is under obligation to return the dower and other benefits which might have passed to her. Under the provision of section 10(4) of the Family Courts Act, 1964, it is mandatory for the court to pass decree for dissolution of marriage On failure of reconciliation proceedings and direct the return of "Haq maher" received by the wife in consideration of khula divorce, however, if the husband does not claim the, return of dower specifically an implied waiver would be attracted on his part and in this eventuality the wife is not obliged to even return the dower. Return of dower or benefits of marriage is not condition precedent for a decree for dissolution of marriage in view of the provisions of section 10(4) of the Family Courts Act, 1964 as amended through Ordinance LV of 2002 dated 1-10-2002. In this case not only reconciliation proceedings failed but the respondent/plaintiff categorically stated on oath that she had severe hatred towards the petitioner. The petitioner/defendant has been living in England throughout. The contention that the petitioner had taken ornaments, garments and cash amount from his mother cannot be accepted and if in fact she has taken these articles from his mother, this will not amount to benefits of marriage taken from the petitioner/defendant. The decree for dissolution of marriage was passed about 5-1/2 years back and as per report of the process server the respondent is remarried and is living in the house of her in-laws. The learned counsel for the petitioner when confronted with this situation, could not refute it. The decree was passed by the Court of competent jurisdiction and does not suffer from any illegality or infirmity due to alleged non return of dower, as the petitioner/defendant had not specifically claimed it. The case-law cited at the bar, therefore is not applicable on the facts of present petition, which is devoid of merits and is accordingly dismissed.
M.U.Y./W-36/LPetition dismissed.
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