-Suit for dissolution of marriage---Application for restitution of conjugal rights by husband---Scope---Res-judicata, principle of---

 Family Court had rightly held that it was a recurring cause of action and so long as the wedlock subsisted, a suit could be brought for dissolution of marriage, unless such a relief was declined to a wife by a competent Court of law, after hearing a duly instituted suit on merit and when the situation remained unchanged---Principle of res judicata was not applicable in circumstances

P L D 2021 Peshawar 85
Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ
KHAIR UD DIN---Petitioner
Versus
Mst. SABIHA and 5 others---Respondents
Writ Petition No. 847-M of 2019, decided on 22nd September, 2020.

(a) Constitution of Pakistan---

----Art. 199---Family Courts Act (XXXV of 1964), S. 5, Sched. & S.14---Evidence recorded by Family Court---Reappraisal by High Court under its constitutional jurisdiction---Scope---Proceedings under the constitutional jurisdiction of High Court were not a substitute for an appeal so as to reappraise the evidence recorded by the Family Court.

Muhammad Ashraf v. Mst. Salma Bibi 1987 MLD 2336; Muhammad Anwar v. Tahira Jabeen and 3 others 2003 CLC 878 and Muhammad Aslam v. Kausar Parveen and another 1987 CLC 256 ref.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.17---Civil Procedure Code (V of 1908), S. 11---Suit for dissolution of marriage---Application for restitution of conjugal rights by husband---Scope---Res-judicata, principle of---Applicability---Earlier suit for recovery of maintenance allowance filed by wife was decreed, however, prayer of the husband for restitution of conjugal rights had also been accepted vide the same judgment---Wife later filed a suit for dissolution of marriage which was decreed in her favour---Husband contended that when there was decree for restitution of conjugal rights existed in his favour, then subsequent suit of the wife for dissolution of marriage was not maintainable in terms of S.11 of the Civil Procedure Code, 1908---Held, that although S.17 of the Family Courts Act, 1964 provided that S. 11 of Civil Procedure Code, 1908 would apply to the family suits, but the Courts had not heard/decided the issue of dissolution of marriage in the earlier suit---Grant of a decree for restitution of conjugal rights could not preclude a wife from seeking dissolution of marriage thereafter---Family Court had rightly held that it was a recurring cause of action and so long as the wedlock subsisted, a suit could be brought for dissolution of marriage, unless such a relief was declined to a wife by a competent Court of law, after hearing a duly instituted suit on merit and when the situation remained unchanged---Principle of res judicata was not applicable in circumstances---Constitutional petition was dismissed.

Ghulam Muhammad v. Mst. Rashida Bibi and 2 others PLD 1983 Lah. 442 and Mst. Riaz Bibi v. Additional District Judge, Multan and others 1999 YLR 875 ref.

(c) Family Courts Act (XXXV of 1964)---

----S.5, Sched & S.17---Civil Procedure Code (V of 1908), S.11---Maintenance allowance of wife, quantum of---Res judicata, principle of---Scope---First suit for recovery of maintenance allowance of wife was decreed subject to restitution of conjugal rights of the husband---Subsequent suit filed by wife for dissolution of marriage was decreed with higher rate of maintenance allowance for the period of iddat---Held, that the changed situation had required re-determination for such relief as in the earlier suit, grant of maintenance allowance had been made conditional upon compliance of wife with the decree for restitution of conjugal rights, which compliance had become unlawful due to dissolution of marriage---Maintenance allowance granted in the earlier suit had been granted for unspecified period of time, while in the subsequent suit, maintenance allowance for wife had been restricted till passage of period of iddat, which modification had also become necessary in the circumstances of the case---Subsequent suit in changed circumstances could not be held to be barred by the principle of res-judicata , even in respect of grant of maintenance allowance to the wife---Earlier decree (for grant of maintenance allowance) in favour of the wife would be deemed to have been substituted by the subsequent decree in her favour for all intents and purposes (to the extent of recovery of her maintenance allowance)---Constitutional petition was dismissed.

Muhammad Ramzan alias Jan Muhammad v. Additional District Judge, Sahiwal and 4 others 2018 YLR 2653 and 2019 CLC 1261 ref.

(d) Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.17---Suit for dissolution of marriage on ground of Khula---Return of dower---Scope---Four tolas of gold ornaments as dower was fixed between the spouses at the time of Nikah---In earlier suit filed by the wife for recovery of maintenance allowance, the Family Court held had that three (out of four) tolas of gold ornaments was tendered to the wife at the time of Rukhsati , which remained with her---Wife filed a subsequent suit for dissolution of marriage on basis of Khula, which was decreed---Petitioner/husband contended that Family Court should have, in the subsequent suit, also ordered return of three tolas gold ornaments, besides extinguishing his liability of one tola gold ornaments under the earlier decree---Held, that the entitlement of the wife regarding recovery of one tola gold ornaments (claimed as outstanding part of the dower fixed at the time of Nikah) stood vanished as a corollary to dissolution of marriage on the ground of Khula in the subsequent suit---Return of remaining three tolas gold ornaments , however, required a different treatment---Marriage between the spouses had remained effective for a period of 7/8 years, wherefrom three kids had also been born---Dissolution of marriage through Khula was not an inflexible rule that the dower, already paid, had to be returned to the husband---Justification for return of the already paid dower, in the present case, did not exist---In absence of such justification, Family Court was correct in its outcome, and non-discussion on the issue of return of dower would not render it liable to be reversed, under the constitutional jurisdiction of the High Court---No illegality or infirmity having been noticed in the impugned orders and judgments passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

Karim Ullah v. Shabana and 2 others PLD 2003 Pesh. 146 ref.

Aziz-ur-Rahman Swati for Petitioner.

Miss Mehnaz Naz for Respondent No.1.

Date of hearing: 22nd September, 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 06.08.2015, 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 Nos. 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 24.01.2019 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 Courts 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, C.P.C. He added that sections 10 and 11, C.P.C. 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.

7. Perusal of record reveals that petitioner has also contracted a second marriage. The lady (respondent No. 1) has continuously been litigating for her basic rights like payment of maintenance for herself, for her minor daughter and two sons, as well as recovery of dower and dowry articles, since 06.08.2015. Petitioner has been enjoying his life with his second wife. During all these period, he has been dragging respondent No. 1 in the Courts. Even this much of the attitude of petitioner has been sufficient for kindling extreme hatred in the heart of respondent No. 1, making it very difficult for her to rehabilitate with petitioner. When the learned Judge Family Court has dissolved marriage between spouses vide impugned judgment dated 20.04.2019, on the basis of Khula, same cannot be termed as illegal or inappropriate in circumstances of the case. So far as factual aspect of the case is concerned, judgment of the learned Judge Family Court was found to have been justified on the basis of material on record existing before the Court. This Court is not supposed to reappraise the entire evidence, as held by Hon'ble Sindh High Court, in its judgment given in the case of Muhammad Ashraf v. Mst. Salma Bibi reported as 1987 MLD 2336. Similarly, this Court in its judgment given in the case of Muhammad Anwar v. Tahira Jabeen and 3 others reported as 2003 CLC 878, has also held that writ proceedings had not been a substitute for an appeal so as to reappraise the evidence recorded before the Family Court. It has also been held in said judgment that;

"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 the 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 v. Kausar Parveen and another reported as 1987 CLC 256.

8. Main grievance of petitioner in the instant case has been that when decree for restitution of conjugal rights passed in his favour on 19.01.2018 had been existing, then a second suit for dissolution of marriage and maintenance had not been maintainable, as same had expressly been barred by section 11, C.P.C., which have been made applicable to family suit vide section 17 of the Act. No doubt section 17 of the Act provides that section 11, C.P.C. shall apply to family suits, but respondent No. 1 had neither prayed for, nor had the Courts heard and decided the issue of dissolution of marriage in the earlier suit. 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 the learned Judge Family Court that it was a recurring cause of action and so long as the 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 the situation remains unchanged. Hon'ble Lahore High Court in its judgment given in the case of Ghulam Muhammad v. Mst. Rashida Bibi and 2 others reported as PLD 1983 Lahore 442, has held in this respect;

"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 of Khula' 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 v. Additional District Judge, Multan and others reported as 1999 YLR 875.

9. So far as the prayer regarding grant of maintenance allowance is concerned, the changed situation had required re-determination for such relief as in the earlier suit, grant of maintenance allowance had been made conditional upon compliance of respondent No. 1 with the decree for restitution of conjugal rights, which compliance had become unlawful due to dissolution of marriage. The maintenance granted in family suit had been granted for unspecified period of time, while in the subsequent suit, maintenance for respondent No. 1 had been restricted till the passage of period of iddat, which modification had also become necessary in circumstances of the case. Subsequent suit in such changed circumstances cannot be held to be barred by principle of res-judicata, even in respect of grant of maintenance allowance to respondent No. 1. So far as the earlier decree for grant of maintenance allowance of respondent No. 1 namely Mst. Sabiha is concerned, same shall be deemed to have been substituted by the subsequent decree in her favour for all intents and purposes (to the extent of recovery of her maintenance). Reliance in this respect is placed on judgment of Hon'ble Lahore High Court given in the case of Muhammad Ramzan alias Jan Muhammad v. Additional District Judge, Sahiwal and 4 others reported as 2018 YLR 2653, wherein the Hon'ble Court held as follows;

"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 had cured the defect and High Court ordinarily did not interfere in the order passed by the Court below which had 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 v. 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."

In the instant case, when marriage has remained effective for a long period of eight years, justification for return of the amount of dower already paid to wife, did not exist. When justification for its return had not been existing, and the impugned order of the learned Judge Family Court is correct in its outcome, then non-discussion on the issue of return of dower would not render it liable to be reversed, in exercise of writ jurisdiction of this Court. The Court below has exercised its jurisdiction, in a lawful and appropriate manner requiring no interference of this Court in exercise of its constitutional jurisdiction.

11. The instant writ petition was therefore found to be lacking any substance and same is accordingly dismissed.

MQ/27/P