نکاح نامہ میں بیوی کو طلاق دینے کی صورت میں حرجانہ دینے کی شرط قانونی اصول کے خلاف ہے۔
2012 CLC 837
(a)West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance, dowry and compensation for unjustified divorce---Suit of petitioner (wife) was dismissed by Appellate Court after remand from High Court and same was assailed in the constitutional petition---Perusal of record revealed that the respondent (husband) had filed a suit for restitution of conjugal rights which indicated that he had been making efforts for reconciliation and requiring the petitioner to join him---Petitioner had failed to bring on record any material that would indicate that she made any effort for reconciliation in order to join her husband---Petitioner had failed to preform her marital obligations, and in such circumstances, she was not entitled to any maintenance allowance---Claim of petitioner for compensation for the alleged unjustified divorce was not actionable under law---Any condition imposed in the Nikahnamafortheawardofdamagesonaccountofalleged unjustified divorce had been declared to be against the basic principle of law---Constitutional petition was dismissed, in circumstances.
PLD 2011 SC 260 and 2008 SCMR 186fol.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Award of damages on account of alleged unjustified divorce---Any condition imposed in the Nikahnama for the award of damages on account of alleged unjustified divorce was against the basic principle of law and such claim was not actionable before the court.
PLD 2011 SC 260 and 2008 SCMR 186fol.
Zafar Iqbal Chohan for Petitioner.
Sh. Naveed Shehryar for Respondent No.1.
Mst. ZEENAT BIBI VS MUHAMMAD HAYAT2012 C L C 837[Lahore]Before Abdul Waheed Khan, JMst. ZEENAT BIBI----PetitionerversusMUHAMMAD HAYAT and 2 others----RespondentsWrit Petition No.20915 of 2009, decided on 18/01/2012.
ORDER
ABDUL WAHEED KHAN, J.--- Briefly, the facts of the case as stated in plaint before Family Court are that marriage between the petitioner and respondent No.1 was solemnized on 28-10-2000 and that respondent No.1 deserted the petitioner/plaintiff from his house in wearing apparels in the year 2002; and that minor namely, Muhammad Naeem was born on 2-9-2002. According to the petitioner/plaintiff, her parents incurred the delivery expenses. It is mentioned in para 4 of this petition that respondent No.1 filed a suit for restitution of conjugal rights on the basis of self-invented story to avoid the payment of maintenance allowance and that the respondent No.1 divorced her on 23-8-2006. The petitioner filed a suit for recovery of maintenance allowance for a period commencing from February, 2002 to November, 2006 at the rate of Rs.2000/- per month. She filed another suit for recovery of dowry articles and for an amount of Rs.50,000/- as compensation on account of divorce without any reasonable justification. The Judge Family Court vide judgment dated 19-3-2008 decreed the suit to the extent of maintenance allowance of the minor @ Rs.1,000/- per month with 25% increase per annum whereas to the extent of compensation, the suit was dismissed.
2. The petitioner and the minor filed an appeal before the appellate court assailing the order of Judge, Family Court. The appellate court vide consolidated judgment and decree dated 23-6-2008 modified the decree of the Family Court and enhanced the maintenance allowance of the minor from Rs.1000/- to Rs.1500/- from the date of institution of suit till his majority along with 25% annual increase.
3. Consequently, the aforementioned judgments and decrees were assailed before this Court through Writ Petition No.1063 of 2008 and the same was decided in the following terms:---
"Keeping in view the facts and circumstances of the case, it is appropriate to remit the matter to the learned appellate court to re-decide the matter on the available record after providing the opportunities to both the parties.
11. Resultantly, the judgment and decree dated 23-6-2008 passed by the learned appellate court is set aside to the extent of petitioner No.1. The case is remitted to the learned appellate court to re-decide the matter afresh after providing fair opportunities to the parties."
4. In the post remand proceedings, the Additional District Judge, Sargodha, held that the petitioner is not entitled to the return of dowry articles, any maintenance allowance and the payment of Rs.50,000/- as compensation. The said judgment has been assailed through this constitutional petition.
5. The counsel for the petitioner/plaintiff submits that the petitioner was entitled for the maintenance allowance during the subsistence of marriage as according to her the respondent No.1 failed to bring any material on the file to substantiate that she declined to join him. He adds that since the respondent No.1 divorced the petitioner/plaintiff without anylawfuljustification,therefore,shewasentitledtothe compensationofanamountofRs.50,000/-onaccountofthe unjustified divorce. With these submission, it is prayed that the impugned judgment of the appellate court be set aside, the suit be decreed in her favour and that a declaration be made that she is entitled to maintenance allowance and also for the damages/compensation on account of unjustified divorce.
6. Conversely, the learned counsel for respondent No.1 submits that the Judge Family Court has no jurisdiction to award any claim for the alleged unjustified divorce and that if any such condition was incorporated in Nikahnama, the same was un-Islamic. He adds that concurrent findings of facts, recorded by the courts below cannot be looked into in the constitutional jurisdiction; therefore, this petition merits dismissal.
7. Arguments of the counsel for the parties heard. It is borne out of the record that respondent No.1 filed a suit for restitution of conjugal rights which would indicate that he had been making efforts and requiring the petitioner to join him. The petitioner has failed to bring on record any material that she made any effort for reconciliation to join her husband and in these circumstances, when the petitioner failed to perform her marital obligation; she is not entitled to any maintenance allowance. So far as the claim of the petitioner for the alleged unjustified divorce is concerned, the honourable Supreme Court in (PLD 2011 SC 260) has settled the law on the point that such a claim is not actionable before the Court. Any such condition imposed in the Nikahnama for the award of the damages on account of alleged unjustified divorce have been declared against the basic principle of law by the honourable Supreme Court in (2008 SCMR 186). It is held:---
"His only contention was that such condition was embodied in the Nikahnama by way of safety and for prolongation of marriage contract, as it would deter for both the parties from bringing an end to the marriage contract. This contention to say the least is absolutely frivolous as it is against the basic principle of law which require the parties to remain in marital ties in a peaceful and tranquil atmosphere and are not required to be bound by stringent conditions to remain in marriage bond."
And thus it is held that the claim of petitioner/plaintiff as compensation on account of the alleged unjustified divorce is not actionable.
9. In view of foregoing discussion, there is no ground to interfere with the impugned judgments and decrees. This writ petition is, accordingly, dismissed.
K.M.Z./Z-4/LPetition dismissed.
(a)West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance, dowry and compensation for unjustified divorce---Suit of petitioner (wife) was dismissed by Appellate Court after remand from High Court and same was assailed in the constitutional petition---Perusal of record revealed that the respondent (husband) had filed a suit for restitution of conjugal rights which indicated that he had been making efforts for reconciliation and requiring the petitioner to join him---Petitioner had failed to bring on record any material that would indicate that she made any effort for reconciliation in order to join her husband---Petitioner had failed to preform her marital obligations, and in such circumstances, she was not entitled to any maintenance allowance---Claim of petitioner for compensation for the alleged unjustified divorce was not actionable under law---Any condition imposed in the Nikahnamafortheawardofdamagesonaccountofalleged unjustified divorce had been declared to be against the basic principle of law---Constitutional petition was dismissed, in circumstances.
PLD 2011 SC 260 and 2008 SCMR 186fol.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Award of damages on account of alleged unjustified divorce---Any condition imposed in the Nikahnama for the award of damages on account of alleged unjustified divorce was against the basic principle of law and such claim was not actionable before the court.
PLD 2011 SC 260 and 2008 SCMR 186fol.
Zafar Iqbal Chohan for Petitioner.
Sh. Naveed Shehryar for Respondent No.1.
ORDER
ABDUL WAHEED KHAN, J.--- Briefly, the facts of the case as stated in plaint before Family Court are that marriage between the petitioner and respondent No.1 was solemnized on 28-10-2000 and that respondent No.1 deserted the petitioner/plaintiff from his house in wearing apparels in the year 2002; and that minor namely, Muhammad Naeem was born on 2-9-2002. According to the petitioner/plaintiff, her parents incurred the delivery expenses. It is mentioned in para 4 of this petition that respondent No.1 filed a suit for restitution of conjugal rights on the basis of self-invented story to avoid the payment of maintenance allowance and that the respondent No.1 divorced her on 23-8-2006. The petitioner filed a suit for recovery of maintenance allowance for a period commencing from February, 2002 to November, 2006 at the rate of Rs.2000/- per month. She filed another suit for recovery of dowry articles and for an amount of Rs.50,000/- as compensation on account of divorce without any reasonable justification. The Judge Family Court vide judgment dated 19-3-2008 decreed the suit to the extent of maintenance allowance of the minor @ Rs.1,000/- per month with 25% increase per annum whereas to the extent of compensation, the suit was dismissed.
2. The petitioner and the minor filed an appeal before the appellate court assailing the order of Judge, Family Court. The appellate court vide consolidated judgment and decree dated 23-6-2008 modified the decree of the Family Court and enhanced the maintenance allowance of the minor from Rs.1000/- to Rs.1500/- from the date of institution of suit till his majority along with 25% annual increase.
3. Consequently, the aforementioned judgments and decrees were assailed before this Court through Writ Petition No.1063 of 2008 and the same was decided in the following terms:---
"Keeping in view the facts and circumstances of the case, it is appropriate to remit the matter to the learned appellate court to re-decide the matter on the available record after providing the opportunities to both the parties.
11. Resultantly, the judgment and decree dated 23-6-2008 passed by the learned appellate court is set aside to the extent of petitioner No.1. The case is remitted to the learned appellate court to re-decide the matter afresh after providing fair opportunities to the parties."
4. In the post remand proceedings, the Additional District Judge, Sargodha, held that the petitioner is not entitled to the return of dowry articles, any maintenance allowance and the payment of Rs.50,000/- as compensation. The said judgment has been assailed through this constitutional petition.
5. The counsel for the petitioner/plaintiff submits that the petitioner was entitled for the maintenance allowance during the subsistence of marriage as according to her the respondent No.1 failed to bring any material on the file to substantiate that she declined to join him. He adds that since the respondent No.1 divorced the petitioner/plaintiff without anylawfuljustification,therefore,shewasentitledtothe compensationofanamountofRs.50,000/-onaccountofthe unjustified divorce. With these submission, it is prayed that the impugned judgment of the appellate court be set aside, the suit be decreed in her favour and that a declaration be made that she is entitled to maintenance allowance and also for the damages/compensation on account of unjustified divorce.
6. Conversely, the learned counsel for respondent No.1 submits that the Judge Family Court has no jurisdiction to award any claim for the alleged unjustified divorce and that if any such condition was incorporated in Nikahnama, the same was un-Islamic. He adds that concurrent findings of facts, recorded by the courts below cannot be looked into in the constitutional jurisdiction; therefore, this petition merits dismissal.
7. Arguments of the counsel for the parties heard. It is borne out of the record that respondent No.1 filed a suit for restitution of conjugal rights which would indicate that he had been making efforts and requiring the petitioner to join him. The petitioner has failed to bring on record any material that she made any effort for reconciliation to join her husband and in these circumstances, when the petitioner failed to perform her marital obligation; she is not entitled to any maintenance allowance. So far as the claim of the petitioner for the alleged unjustified divorce is concerned, the honourable Supreme Court in (PLD 2011 SC 260) has settled the law on the point that such a claim is not actionable before the Court. Any such condition imposed in the Nikahnama for the award of the damages on account of alleged unjustified divorce have been declared against the basic principle of law by the honourable Supreme Court in (2008 SCMR 186). It is held:---
"His only contention was that such condition was embodied in the Nikahnama by way of safety and for prolongation of marriage contract, as it would deter for both the parties from bringing an end to the marriage contract. This contention to say the least is absolutely frivolous as it is against the basic principle of law which require the parties to remain in marital ties in a peaceful and tranquil atmosphere and are not required to be bound by stringent conditions to remain in marriage bond."
And thus it is held that the claim of petitioner/plaintiff as compensation on account of the alleged unjustified divorce is not actionable.
9. In view of foregoing discussion, there is no ground to interfere with the impugned judgments and decrees. This writ petition is, accordingly, dismissed.
K.M.Z./Z-4/LPetition dismissed.
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