ORDER
This petition has been filed where the petitioner has prayed that the judgment and decree, dated 20‑5‑2000 in Suit No.578 of 1998 may be set aside and in the alternative case be remanded with the direction to allow the petition to cross‑examine the respondent. No. 1. He has also prayed that the operation of the judgment may be suspended and the respondent No. l may be restrained from approaching the concerned authority under. section 7(1) of the Muslim Family Law Ordinance.
Briefly the facts are that the petitioner was married to the respondent on, 29‑12‑1996 against the dower amount of Rs.1,00,000 which was paid. After the marriage the parties left for USA and stayed there for 1‑1/2 years. A son was born who was named Moiz Suleman Sani on 23‑11‑1997. According to the petitioner even though he is a very respectable person the respondent No. l throughout the marriage life was not good harsh, cruel and insulting, .but the petitioner tolerated the same with the hope of better future. According to the petitioner even after the birth of the son the attitude of the wife did not change. He has further gone on to state in the body of the petition that his wife had no respect for Islam and use to frequent Pubs and bars. The petitioner being a loving and caring husband treated her with love and affection: On 16‑9‑1998 she left the petitioner and returned to Pakistan alongwith the son Moiz. The petitioner tried to contact her when he found out that she has gone to Pakistan so that the. dispute if any could be resolved. But ultimately he failed due to the attitude of the respondent No. 1. The respondent No. l in spite of repeated attempts' of the petitioner refused to reconcile and also did not allow the petitioner to see his son. She thereafter filed Suit No.578 of 1996 for dissolution of her marriage by Khula. Whilst this suit was pending the petitioner filed a Suit No.265 of 1999 for restitution of conjugal rights. The petitioner tried to keep both the suits consolidated but failed. Various applications were moved which were decided and disposed off and' on behalf of the petitioner his attorney was examined and one Qazi Aijaz Ahmed. The matter was ultimately decided and disposed off. Suit No.578 of 1998 was decreed and Suit No.265 of 1999 was dismissed. By virtue of the dismissal and decree of the two suits, this petition has been filed. Various grounds have been taken in the petition which are more generalized. Primarily it is pointed, that the respondent No.2 should have allowed the Advocate for the petitioner to cross‑examine the respondent No. l . By not allowing the cross‑examination of the respondent No.1, the petitioner has been condemned unheard.
I have heard the learned counsel for the petitioner Mr: Nadeem Azhar Siddiqui who has insisted that the judgment needs to be set aside as it has been decided without the cross‑examination of the respondent No. 1. According to him if the cross‑examination had taken place then perhaps the suit for Khula would not be decreed. He has insisted that his client has a good case and that if the petition was allowed he would be able to be get justice. I have seen the pleadings of the parties and it is clear from the beginning that Suit No.578 of 1998 was contested not by the husband of the lady but by an attorney. The written statement has been verified and signed by the attorney. On the other hand Suit No.265 of 1999 which is a suit for restitution of conjugal rights has also been signed and verified by Mr. Asif Sani who is the attorney of Abdul Fathey Babar Sani (husband). The proceedings before the Family Court have been conducted by Mr. Asif Sani the attorney.
The examination‑in‑chief of Mst. Naureen the respondent No. 1 in Suit No.578 of 1998 shows that the lady has challenged the behaviour of her husband. According to her, he used to beat her and also tried to strangle her. According to her she left him because of his behaviour. She has pointed out that she had reported her husband's behaviour to the Police in America. She was of the view that there was no chance of re‑conciliation. She prayed for Khula and stated that she clearly had developed hatred for her husband in her heart.
The examination was recorded on 4‑12‑1999 and on the same day instead of cross‑examining the respondent No. 1 the application for adjournment was taken up on the insistence of the Advocate for the petitioner. This was dismissed and the matter was adjourned for the defendant's evidence. Another application for cross‑examination was made which application was dismissed with the direction to move a proper application. Again an application was made which was once again dismissed. Thereafter, on behalf of the petitioner his attorney got himself examined.
Lengthy examination‑in‑chief was done and it seems from a statement that the attorney is a brother of the petitioner. He has commented upon the dresses of the respondent No. l as according to him she was wearing western type of dresses which was not appreciated by her husband. Then he has gone at to state everything which may or may not be from his personal knowledge. In his cross‑examination he has admitted that he has no knowledge about the differences between the husband and wife. He has denied that his brother was running a Club in America and that his brother used to beat up his wife. Further, cross‑examination has been made where various counter‑allegations have been made and obviously they have been denied. The witness on behalf of the petitioner Kazi Aijaz Ahmed has also talked about the dispute between the husband and wife and he also has stated that he‑made all efforts to reconcile both husband and wife but failed. Once again lengthy cross examination has taken place. Based upon this evidence the matter was disposed of.
I have heard Mr. Nadeem Azhar Siddiqui and Lateef A. Shakoor counsels for the parties and I have gone through the evidence. The petitioner in his petition has levied all allegations against the lady. If one were to accept that she was not a fit person to be a wife of a respectable person then why was the husband interested in restoring conjugal rights and resisted her demand for Khula'. Surely if she is bad as he has made out in the body of the petition then he should be happy to get rid of her. Indeed if the allegations in the petition are to be believed then the marriage should have ended as she was not a fit person to be his wife as nothing seems to have been right with h6r. The petitioner also talks of a dispute and the attempt to reconcile. One wonders what that dispute is as it has never been mentioned or clarified in the pleadings and in the evidence. The lady on the other hand has made a categorical statement about the husband's behavior and the fact that she quietly left America with the son gives credence to her story. She has also sought Khula. It should be appreciated that when a person gets married and agrees to live with her husband in a foreign country with foreign environment she for sakes a set social and cultural atmosphere to adjust in the new environment. This requires a lot of efforts. In this respect total support of the husband is necessary. He must help her in her adjustment. He has to be patient, gentle and understanding. Rashness and impatience generally lead to disputes which ultimately end up in the break up in the marriage. The penalty for such a break then has to be paid by the child.
The contest on behalf of the husband in both the. suits and this petition is by his brother. How can a attorney even if he is a brother contest a matter for restitution of conjugal rights and Khula. It is inconceivable. I am surprised that the Family Court allowed these proceedings and pleadings to take place. Any statement made reflecting, the emotional and physical relationship of the husband and wife by a attorney would be hearsay and not acceptable. Such pleadings and evidence should not be allowed to be signed by an attorney on behalf of the husband/wife. It is apparent especially in cases of this nature where husband in order to punish the wife for seeking an annulment of marriage authorizes a person to conduct proceedings. This attitude alone should be condemned. Only in very rare and extraordinarily circumstances attorney should be allowed and that too after sufficient reasons have been given by the attorney for signing or verifying the pleadings or giving evidence. Where the evidence is concerned except for verifying certain documents under no circumstances can an attorney state even on oath what transpired between the husband and wife which led ultimately to one of them coming to the Court. Based upon the above reasons the petition was disposed of by order, dated 11‑2‑2000.
Q. M. H. /M. A. K./A‑126/K Order accordingly.
0 comments:
Post a Comment