PLJ 2002 Karachi Hyderabad
Family Courts Act, 1964 (XXXV of 1964)--
—S. 5 Sched-Constitution of
his side be did not make any application for re-opening of his case, but preferred to argue his case through newly appointed counsel—No flaw in judgment was pointed out to show that the same suffered from any defect-No interference was warranted in judgments and decrees of Courts below. [P. 69] A
Mr. Muhammad Ishaq Khoso, Advocate for Petitioner. Mr. Sher Muhammad Leghari, Advocate for Respondents. Date of hearing: 12.3.2001.
JUDGMENT
Faiz Muhammad Qureshi, J.-Through this Constitutional Petition, Petitioner Wali Haider has challenged the Impugned Judgment and Decree dated 13.04.2000, passed by the Civil Judge and Family Judge Tando Bago in Family Suit No. 4 of 2000 for dissolution of marriage and maintenance of Rs. 2000/-per month, to be paid from the month of July 1997 till the expiry of Iddat period and the order dated 28.7.2000 passed by learned 1st Additional District Judge, Badin, who dismissed Family Appeal No. 4 of 2000, filed by the present Petitioner against the Judgment and Decree of Family Court, Tando Bago.
The brief facts of the case are that Respondent No. 1, namely Mst. Parveen daughter of Mustaq Ahmed filed suit for dissolution of marriage and maintenance in which it was pleaded that she was married to Petitioner on 26.04.1997 at Tando Bago. Dower was fixed at Rs. 50.000/- which waa prompt in nature. After marriage the Respondent No. 1 lived with the Petitioner as his wife till 27.06.1997, when the Petitioner turned her out from his house in three cloths. Respondent No. 1 took shelter in the house of her parents and since then she was living with them. Respondent No. 1 remained as duty-full wife of the Petitioner but she was maltreated by the Petitioner and his parents and she was beaten up by the petitioner and abused by the parents of Petitioner. The parents and other relatives of Respondent No. 1 had given dowry articles to Respondent No. 1 and the same have been disposed of by the Petitioner. The Petitioner did not provide her maintenance. Effective efforts were made by the relative and well-wishers of the parties for settlements between the Petitioner and Respondent No. 1 but without success. Respondent No. 1 claimed maintenance from July 1997 at the rate of Rs. 2000/- per month. Respondent No. 1 has been subjected to cruelty and maltreatment at the hands of the Petitioner. On the other hand, the Petitioner was served with Notice and he filed Written Statement in which he denied all the allegations levelled against him. He has pleaded that the dower amount has already been paid to the Respondent No. 1 and she left the house of the Petitioner on her own. He further pleaded that she is not entitled to any claim with regard to the maintenance as she herself left the house of the Petitioner. Besides, Respondent No. 1 had herself taken away the dowry articles from the house of the Petitioner. Out of the pleadings of the parties, lower Court framed the following issues:--
1. Whether the present suit is maintainable under law?
2. Whether the Plaintiff was maltreated by the Defendant?
3. Whether the Plaintiff was maintained properly by the
Defendant?
4. Whether the Plaintiff is entitled for maintenance, if yes, at what
way and for what period?
5. Whether the Plaintiff is entitled for dissolution of marriage as
claimed by her in the Plaint?
6. What should the decree be?
After hearing the learned Counsel for the parties, all the issues were decided against the Petitioner and maintenance was allowed to Respondent No. 1 at Rs. 2000/-per month to which the Petitioner preferred an Appeal;
although the Appeal is not preferable against the dissolution of marriage and the Petitioner being Appellant before the 1st Additional District Judge reserved his right to file writ petition. The Family Appeal No. 4 of 2000, filed by the Petitioner was also dismissed by Order dated 13.04.2000.Mr. Muhammad Ishaq Khoso, learned Counsel for the Petitioner has argued that no proper chance has been given to the Petitioner before Family Judge to rebut the evidence and he has been condemned unheard. Mr. Muhammad Ishaq Khoso has further submitted that the Petitioner has paid entire dower amount to Respondent No. 1; finally he has submitted that the present Petition is maintainable.On the other hand Mr. Sher Muhammad, learned Counsel for Respondent No. 1 has controverted the contentions raised by the learned Counsel for the Petitioner. I have heard Mr. Muhammad Ishaq Khoso, learned Counsel for the Petitioner; Mr. Sher Muhammad, learned Counsel for Respondent No. 1 and have gone through the Judgment and Decree passed by Courts below. I have also perused the record and proceedings of the trial Court. Respondent No. 1 being Plaintiff filed Suit for dissolution of marriage and maintenance before the Civil Judge and Family Judge Tando Bago on 24.02.2000; in this regard notices were issued to the Petitioner, who was Defendant before the Family Judge and the matter appears to be adjourned to 13.02.2000; on the aforementioned date Mr. Munir Ahmed, Advocate appeared for Petitioner/ Defendant and filed an Application for extension of time for filing of Written Statement and time was granted and the matter was adjourned to 14.03.2000. On 14.03.2000 once again the Application was made for extension of time that too was allowed and the matter was fixed for 16.03.2000. On 16.02.2000 the Written Statement was filed by the Petitioner/Defendant and the matter was adjourned to 22.03.2000 for pre-trial. It appears that both the Counsel were present but the parties were absent. The Respondent No. 1, who was Plaintiff before the Family Judge stated that she does not want compromise therefore, pre-trial resulted in failure and the matter was adjourned to 24.03.2000 for issues. On 24.03.2000 the Respondent No. 1 being Plaintiff filed draft issues whereas the Petitioner/Defendant was not present and draft issues were also not filed and the matter was adjourned to 28.03.2000 for settlement of issues and it was ordered by Family Judge that Defendant may file draft issues before the date of hearing. On the aforementioned date Petitioner's Counsel filed draft issues and issues were settled and the matter was adjourned to 03.04.2000 for Plaintiff/Respondent No. 1's evidence. The case could not be proceeded on account of absence of Respondent No. 1 and her Advocate and the matter was adjourned to 06.04.2000. On 06.04.2000 Respondent No. I/Plaintiff examined herself and her witnesses but Petitioner/Defendant was absent and his Advocate withdrew Power and the case was adjourned to 11.04.2000 for Petitioner/ Defendant's evidence. On 11.04.2000 neither the Petitioner/ Defendant appeared before the Family Judge nor any intimation was sent, therefore, the side of the Petitioner/Defendant was closed and the matter was adjourned to 12.04.2000. On the aforementioned date the Petitioner/ Defendant did not appear and in the late hours Mr. Muhammad Nawaz Jamali, Advocate appeared and filed his Power on behalf of the Petitioner/ Defendant and sought permission to argue the matter, which was allowed and arguments were heard on 13.04.2000 and thereafter the Judgment was announced; whereby the Suit of the Respondent No. I/Plaintiff was decreed. It will be pertinent to mention that even on 12.04.2000 Mr. Muhammad Nawaz Jamali, Advocate appeared for the Defendant but he did not make any submission for setting aside the order dated 11.04.2000, when the side of the Defendant was closed and he only sought permission to argue the matter on behalf of the Petitioner/Defendant. I have carefully examined the record and proceedings of the case and the Impugned Judgment; the conduct of the Petitioner/Defendant in lower Court as well as before the Appellate Court has remained indifferent; neither he appeared before the Family Court on any date of hearing nor at the time when Written Statement was filed and the same was lying without verification on the file of the Family Court. The Petitioner/Defendant engaged another Advocate to argue the matter but he did not file any Application for re-opening the side of the Petitioner/Defendant as discussed supra and the Suit was decreed on 13.04.2000. Even the learned Counsel for the Petitioner was inquired by the Appellate Court as to whether any Writ Petition has been filed before this Court against the Judgment and Decree; the learned Counsel for the Petitioner/Defendant stated that still it has not been filed; which too shows that the Petitioner/Defendant was not interested in challenging the Judgment/Decree of the trial Court. Learned counsel for the petitioner has not been able to point out any flaw or defect in the Judgment and Decree of the trial Court as well as any flaw or defect in the Order passed by 1st Additional District and Sessions Judge, Badin, dated 28.07.2000. In view of the above discussion, I am of the considered view that the Petitioner has remained indifferent throughout the proceedings before the Courts below and was not alive to responsibilities and was not interested in his matter. I do not see any wrong with the Judgment/Decree passed by the Family Judge and the Order passed by the 1st Additional District and Sessions Judge Badin; in result this Petition is dismissed with no order as to costs.
The above are the reasons for my short order dated 12.03.2001.
(A.P.) Petition dismissed.
0 comments:
Post a Comment