PLJ 2021 Peshawar 25 (DB)
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Family Courts Act, 1964, S. 7--Suit for dissolution of marriage, recovery of maintenance allowance and recovery of dower and dowry articles--Decreed--Appeal--Dismissed--Minor modification in judgment of appellate Court--Suit for conjugal rights was also decreed--Challenge to--When Judge Family Court has dissolved marriage between spouses vide impugned judgment dated 20.4.2019, on basis of Khula, same cannot be termed as illegal or inappropriate in circumstances of the case--Factual aspect of case is concerned, judgment of Judge Family Court was found to have been justified on basis of material on record existing before Court--High Court is not supposed to reappraise entire evidence--Grant of a decree for restitution of conjugal rights cannot preclude a wife from seeking dissolution of marriage thereafter--It has rightly been held by Judge Family Court that it was a recurring cause of action and so long as wedlock subsists, a suit may be brought for dissolution of marriage, unless such a relief is declined to a wife by a competent Court of law, after hearing a duly instituted suit on merits and when situation remains unchanged--Changed situation had required re-determination for such relief as in earlier suit, grant of maintenance allowance had been made conditional upon compliance of Respondent No. 1 with decree for restitution of conjugal rights, which compliance had become unlawful due to dissolution of marriage--Maintenance granted in family suit had been granted for unspecified period of time, while in subsequent suit, maintenance for Respondent No. 1 had been restricted till passage of period of iddat, which modification had also become necessary in circumstances of case--When marriage has remained effective for a long period of eight years, justification for return of amount of dower already paid to wife, did not exist--When justification for its return had not been exiting, and impugned order of Judge Family Court is correct in its outcome, then non-discussion on issue of return of dower would not render it liable to be reversed, in exercise of writ jurisdiction of this Court--Court below has exercised its jurisdiction, in a lawful and appropriate manner requiring no interference of this Court in exercise of its constitutional jurisdiction--Petition was dismissed.
[Pp. 28, 29, 30 & 32] A, B, C & D
1987 MLD 2336, 2003 CLC 878, PLD 1983 Lah. 442 &
2018 YLR 2653 ref.
Mr. Aziz-ur-Rahman Swati, Advocate for Petitioner.
Miss Mehnaz Naz, Advocate for Respondent No. 1.
Date of hearing: 22.9.2020.
PLJ 2021 Peshawar 25 (DB)
[Mingora Bench (Dar-ul-Qaza) Swat)]
Present: Ishtiaq Ibrahim and Wiqar Ahmad, JJ.
versus
Mst. SABIHA and others--Respondents
W.P. No. 847-M of 2019 with Interim Relief (N) decided on 22.9.2020.
Judgment
Wiqar Ahmad, J.--Petitioner namely Khair-ud-Din is aggrieved of judgment dated 20.04.2019 of learned Judge Family Court Khwazakhela, Swat, wherein suit of Respondent No. 1 has been decreed to the following effect;
"Relief:
As a sequel to what has been discussed issue wise, decree in favour of the plaintiffs is granted in the following manner:
i. The marriage/nikkah of the plaintiff No. 1 is dissolved on the basis of Khula.
ii. The plaintiff No. 1 is entitled to the recovery of maintenance Rs. 5000/- per month for the iddat period."
2. Respondent No. 1 who had earlier been wife of petitioner, has brought a suit against him along with her minor daughter and two sons, who had also been suing through Respondent No. 1 (their mother and natural guardian). First suit had been instituted on 6.08.2015, which was decreed on 19.01.2018 to the extent of recovery of 1 tola gold or its market value and maintenance allowance @ Rs. 2000/- per month for Respondent No. 1 (subject to fulfillment of her conjugal obligations) as well as @ Rs. 1500/- per month for Respondents No. 2 to 4, from the date of institution of suit till their majority/ marriage. Suit of Respondent No. 1 had also been decreed to the extent of prayer for recovery of dowry articles. Prayer of petitioner for restitution of conjugal rights had also been accepted vide said judgment. It was maintained by learned appellate Court vide its judgment dated 24.1.2019 with a minor modification of addition of half tola of gold ornaments, (which according to learned appellate Court, was decreed as belonging of the wife).
3. The order impugned in the instant writ petition is arising of the subsequent suit instituted by Respondent No. 1 for dissolution of her marriage and grant of maintenance allowance @ Rs. 10,000/- per month till the period of her iddat. The subsequent suit was finally decreed vide judgment dated 20.04.2019 to the above stated effect. Appeal filed by petitioner against said judgment was returned by learned appellate Court after finding it non-maintainable under Section 14 (2) of the Family Court Act, 1964 (hereinafter referred to as the 'Act'). Petitioner then filed the instant constitutional petition with the following prayer:
"It is therefore respectfully prayed that this petition be graciously accepted, the order, judgment and decree dated 20.04.2019 of Respondent. No. 5 and order, judgment and decree dated 17.06.2019 of Respondent No. 6 may kindly be set aside and resultantly the suit filed by Respondent No. 1 be dismissed with cost throughout, and the Respondent No. 1 may kindly be directed to perform the conjugal right with petitioner.
Any other relief though not specifically asked for and the Court deems it proper in the circumstances of the case may also be granted in favour of petitioner."
4. Learned counsel for petitioner stated during the course of his arguments that the subsequent suit was expressly barred by principle of res-judicata as contained in Section 11 CPC. He added that Sections 10 & 11 CPC have been given effect by Section 17 of the Act. He further added that the subsequent decree has rendered, the earlier decree for restitution of conjugal rights as ineffective, and thus the impugned decree for dissolution of marriage had been passed in an unlawful manner.
5. Learned counsel appearing on behalf of Respondent No. 1 stated in rebuttal that Respondent No. 1 had got a decree for dissolution of marriage on 20.04.2019 and, after expiry of her period of iddat, she has also contracted a second marriage, and the instant writ petition has therefore become infructuous. She supported the impugned judgment on merits as well.
6. We have heard arguments of learned counsel for the parties and perused the record.
"The marriage under Islamic Law is, a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Qur'an and it is for comfort, love and compassion. It is the bounden duty of husband to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage. Islam has laid down parameters for spouses to live within those bounds and if the parties transgress those parameters, they should relieve each other i.e. they may break matrimonial tie with kindness. In the instant case, as stated above, the petitioner-husband has contracted second marriage during the subsistence of first marriage and he is living with his second wife. The petitioner has a daughter from his first wife who is residing with her mother. The dispute between the couple is with regard to 14 Tolas of gold. The husband is reluctant to discharge his liability by way of returning then same to the wife. This conduct of the husband is not appreciatable. In the, circumstances, we are not inclined to allow the writ petition and accept the prayer of the petitioner."
Further reliance in this respect may be placed on judgment of Hon'ble Lahore High Court in the case of Muhammad Aslam vs. Kausar Parveen and another reported as 1987 CLC 256.
"The learned District Judge has further held that even if she had taken up the plea of Khula' in the previous suits, she was still not debarred from taking up that plea again in the subsequent suit for dissolution of marriage as she could at any time develop hatred against her husband and bring . on record circumstances making it impossible for the spouses to live within the limits 'of Allah. The plea ofKhula' was, therefore, a recurring cause of action and in no circumstances could it be hit by the principle of res judicata as adopted in Section 17 of the Family Courts Act. I agree with the findings of the learned District Judge. Obviously the plea of Khula' is a recurring cause of action and it cannot be hit by the principle of res judicata as adopted in Section 17 of the Family Courts Act. A wife can again and again take up the plea of Khula' as she could develop hatred or dislike against her husband every time under different circumstances and if she is successful in establishing and satisfying the conscience of the Court that she has firmly decided not to live with the husband, the marriage has to be dissolved on the basis of Khula and the question of res judicata cannot be a bar."
Further reliance in this respect may be placed on judgment of same High Court in the case of Mst. Riaz Bibi vs. Additional District Judge, Multan and others reported as 1999 YLR 875.
"Decree for maintenance allowance was based on recurring cause of action and the rights of the minors were involved whose execution petition could not even be withdrawn by their mother unless it was established on the record that the withdrawal of execution petition was for the benefit of the minors. Appellate Court bad cured the defect and High Court ordinarily did not interfere in the order passed by the Court below which bad cured illegality. Object of constitutional jurisdiction was to foster justice and not to perpetuate illegality. No illegality or infirmity having been noticed in the impugned judgment passed by the Appellate Court, constitutional petition was dismissed accordingly."
In support. of same ratio, further reliance may be placed on the judgment reported as 2019 CLC 1261.
10. Learned counsel for petitioner has also agitated that in earlier suit, learned Judge Family Court had held, while recording its findings on issue No. 2, that dower between the parties had been fixed at the time of Nikah as 4 tolas gold, out of which 3 tolas gold had been tendered to the lady at the time of Rukhsati, which remained with her. He had contended that in case of dissolution of marriage on the basis of Khula, the learned Family Court should have ordered return of 3 tolas gold, besides extinguishing his liability of 1 tola gold under the earlier decree. So far as recovery of 1 tola gold claimed as outstanding part of the dower fixed at the time of Nikah is concerned, to said effect entitlement of the lady i.e. Respondent No. 1 stood vanished as a corollary to dissolution of marriage on the ground of khula in the subsequent suit. Return of 3 tolas golden ornaments received by the lady at the time of Rukhsati, however required a different treatment. Marriage between spouses has remained effective for a period of 7/8 years, wherefrom three kids have also been born. It is not an inflexible rule that in all cases of dissolution of marriage through Khula, by intervention of the Court, the dower already paid, had to be returned to the husband. This Court in its earlier judgment in the case of Karim Ullah vs Shabana and 2 others reported as PLD 2003 Peshawar 146, has dealt with the matter in the following manner:
"What we can gather from the Qur'anic dictate is that in general it is not lawful for the husband to get back what he had given to the wife as dower/'Mehr' 'Khula' has however, been made an exception to the general rule. Precisely the abominability of receiving back from the wife of what has been benefacted or gifted
can be assessed when such an action has been synonymised, as per Hadith, with the licking of the vomitted substance by the dog."
11. The instant writ petition was therefore found to be lacking any substance and same is accordingly dismissed.
(Y.A.) Petition dismissed
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