PLJ 2021 Peshawar (Note) 113
Constitution of
----Art. 199--Muslim Family Law Ordinance, 1961, Ss. 7, 9--Constitutional petition--Petitioner filed a suit against respondent for recovery of dower, dowry articles and maintenance allowance--Essence of marriage is a sharing of common life, a sharing of all happiness that life has to offer and all misery that has to be faced in life--Living together is a symbol of such sharing in all its aspects whereas living apart is a symbol indicating negation of such sharing--It is indicative of a disruption of essence of marriage-“breakdown” and if it continues for a fairly long period, it would indicate destruction of essence of marriage “irretrievable breakdown”--In case in hand, petitioner in response to execution petition filed by Respondent No. 1, approached executing Court with a clear stance that she cannot join her husband, because of life threats and to this effect, she also recorded her statement under oath before executing Court, therefore, when there are serious threats to petitioner from her husband, then petitioner could not be compelled to join her husband at cost of threats to her life--A wife could not be forced to join her husband pursuant to a decree for restitution of conjugal rights when she apprehends serious threats to her life--Granted, that Order XXI, Rule 32, C.P.C. empowers executing Court to attach property of judgment debtor for purpose of enforcement of decree regarding restitution of conjugal rights, but it is discretionary with Court and not mandatory and being so, it ought to be exercised judiciously and carefully--Provision has specifically provided that if party against whom a decree has been passed had an opportunity of obeying decree and has wilfully failed to obey it, then decree could be enforced through attachment of her property--In instant case, when petitioner herself urged before executing Court that she has life threats from Respondent No. 1, then decree could not be executed through coercive measures and she could not be forced to reside with her husband and in circumstances, her refusal could not be construed a wilful refusal of decree and, thus her property could not be attached--Appellate Court erred in reversing order of trial Court which did not suffer from any jurisdictional defect. [Para 6] A
Mr. Muhammad Wahid Anjum Advocate for Petitioner.
Mr. Muhammad Ghazanfar Ali Advocate for Respondent No. 1.
Date of hearing: 5.12.2019.
PLJ 2021 Peshawar (Note) 113
[D.I. Khan Bench]
Present: Syed Muhammad Attique Shah, J.
versus
JAVED IQBAL and others--Respondents
W.P. No. 815-D with C.M. No. 900-D of 2019, decided on 5.12.2019.
Judgment
Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Mst. Kalsoom Bibi has called in question the judgment dated 18.7.2019 rendered by learned Additional District Judge-I/MCAC, D.I. Khan, whereby on acceptance of the appeal of Respondent No. 1, the impugned order dated 07.9.2018 of learned Judge Family Court-I, D.I. Khan was set aside and the learned Executing Court/Judge Family Court-I, D.I. Khan was directed to restore the execution petition of Respondent No. 1.
2. The brief facts giving rise to the instant petition are that the petitioner filed a suit against Respondent No. 1 for recovery of dower, dowry articles and maintenance allowance. Respondent No. 1 contested the suit by submitting his written statement and also prayed for restitution of conjugal rights. After full dress trial, the suit of the petitioner was partially decreed vide judgment and decree dated 25.5.2015. At the same time, the prayer of Respondent No. 1 for restitution of conjugal rights subject to payment of past maintenance was also allowed.
3. The Respondent No. 1 filed execution petition for execution of decree to the extent of restitution of conjugal rights in his favour. During the pendency of execution proceedings, the Respondent No. 1 filed an application seeking attachment of the property of the petitioner. The petitioner contested the said application by submitting her replication. After hearing arguments, the learned Civil Judge-IX/JFC-I, D.I. Khan consigned the execution petition vide order dated 07.9.2018, leaving the Respondent No. 1 to withdraw the amount already deposited with the Civil Nazir of the Court in connection with conditional decree of past maintenance.
4. Aggrieved from the order dated 07.9.2018, the Respondent No. 1 filed an appeal. The learned Additional District Judge-I/MCAC, D.I. Khan, vide judgment dated 18.7.2019, accepted the appeal, set aside the impugned order dated 07.9.2018 and directed the learned Executing Court/Judge Family Court-I, D.I. Khan to restore the execution petition of Respondent No. 1, hence the instant petition by the petitioner.
5. I have heard the arguments of learned counsel for the parties and have gone through the available record.
6. The essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life. Living together is a symbol of such sharing in all its aspects whereas living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage “breakdown” and if it continues for a fairly long period, it would indicate destruction of the essence of marriage- “irretrievable breakdown”. In the case in hand, the petitioner in response to the execution petition filed by the Respondent No. 1, approached the learned executing Court with a clear stance that she cannot join her husband, because of life threats and to this effect, she also recorded her statement under oath before the learned executing Court, therefore, when there are serious threats to the petitioner from her husband, then the petitioner could not be compelled to join her husband at the cost of threats to her life. A wife could not be forced to join her husband pursuant to a decree for restitution of conjugal rights when she apprehends serious threats to her life. Granted, that Order XXI, Rule 32, C.P.C. empowers the executing Court to attach property of the judgment debtor for the purpose of enforcement of the decree regarding restitution of conjugal rights, but it is discretionary with the Court and not mandatory and being so, it ought to be exercised judiciously and carefully. The ibid provision has specifically provided that if the party against whom a decree has been passed had an opportunity of obeying the decree and has wilfully failed to obey it, then the decree could be enforced through attachment of her property. In the instant case, when the petitioner herself urged before the learned executing Court that she has life threats from Respondent No. 1, then the decree could not be executed through coercive measures and she could not be forced to reside with her husband and in the circumstances, her refusal could not be construed a willful refusal of the decree and, thus her property could not be attached. The appellate Court erred in reversing the order of learned trial Court which did not suffer from any jurisdictional defect.
7. For the reasons mentioned above, the instant petition is accepted, the impugned judgment dated 18.7.2019 of the learned appellate Court is set aside and the order of learned Executing Court dated 07.9.2018 is restored.
(A.A.K.) Petition accepted
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