--Pronouncement of talaq was necessary---If talaq nama had been obtained then why the talaq nama had not been produced in evidence-

 PLJ 2012 Lahore 183

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Concurrent findings cannot be interfered with in writ petition--Pronouncement of talaq was necessary--Dismissal suit for jactitation of marriage and decreed the suit for restitution of conjugal rights--Consolidated judgment--Question of--Whether previous husband had ever divorced plaintiff and if it was proved that he had not divorced plaintiff then even if plaintiff had contracted marriage with defendant even then she could not be said to be legal wedded wife--If talaq nama had been obtained then why the talaq nama had not been produced in evidence--In fact no talaq nama was ever executed--Statement of petitioner does in no way establish that her husband had divorced her--If it is left to discretion of the wife that whenever she would say that she had been divorced by her husband then talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against principle of law, since talaq is to be pronounced by husband and mere statement of wife is not enough to prove that she had been divorced--Courts below had infact misread evidence and had dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so divorce stands established and thus committed material irregularity while declaring plaintiff to be legally wedded wife of defendant--Normally Courts in a writ petition do not interfere with concurrent findings but when there was clear cut misreading of evidence and material irregularity in impugned judgments High Court has jurisdiction to interfere even if findings are concurrent--Suit was filed by plaintiff for jactitation of marriage stands decreed while suit for restitution of conjugal rights stands dismissed.          [Pp. 189 & 190] A, B, C, D & E

Mr. Muhammad Ramzan Khalid Joya, Advocate for Petitioner.

Malik Muhammad Latif Khokhar, Advocate for Respondents.

Date of hearing: 25.10.2011.

 PLJ 2012 Lahore 183
[Multan Bench Multan]
Present: Kh. Imtiaz Ahmad, J.
Mst. RUQIA BANO--Petitioner
versus
JUDGE FAMILY COURT KAROR PAKKA, LODHRAN and 2 others--Respondents
W.P. No. 5108 of 2004, decided on 26.10.2011.

Judgment

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, consolidated judgment and decree dated 10.12.2003 passed by the learned Judge Family Court, Kahroor Pakka whereby the suit filed by the present petitioner for jactitation of marriage was dismissed while the suit filed by the Respondent No. 3 herein namely Mureed Hussain for restitution of conjugal rights was decreed and consolidated judgment of learned Additional District Judge, Kahroor Pakka dated 14.5.2004 whereby both the appeals filed by the present petitioner were dismissed, have been challenged.

2.  The relevant facts for the disposal of this writ petition are that Mst. Ruqia Bano the present petitioner filed a suit on 19.6.2003 for jactitation of marriage against Mureed Hussain-Respondent No. 3 herein. The claim of the plaintiff was that on 19.5.2003 she was abducted by the defendant along with his companions and during this period the defendant committed Zina with her and thereafter the police recovered her on the order of learned Sessions Judge, Lodhran but during the period of abduction the defendant forcibly obtained her thumb impression on different papers and her husband Qurban Hussain also got the criminal case registered against the defendant and his companions Bearing FIR No. 190-2003 under Sections 10(3) and 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 at Police Station Saddar Kahroor Pakka. It was further alleged that the accused of said criminal case in their bail petition took the plea that the plaintiff was legally wedded wife of defendant and defendant also claimed the plaintiff to be his legally wedded wife, though, the plaintiff never entered into marriage with the defendant nor she was wife of defendant Mureed Hussain nor she ever signed any Nika Nama, though, during the period of her abduction the accused forcibly obtained her thumb marks and signatures. Thus, it was prayed that the plaintiff was not legally wedded wife of Mureed Hussain and decree for jactitation of marriage was sought for by the plaintiff. The suit was resisted by the defendant who filed the written statement wherein it was alleged that Qurban Hussain had divorced the plaintiff with his free consent and after the period of iddat the plaintiff contracted Nikah with the defendant but after the marriage the ex-husband of the plaintiff namely Qurban Hussain who had divorced the plaintiff, enticed away the plaintiff and took her to his home and while leaving the plaintiff also took jewelry and cash of the defendant and thereafter the false case registered against the defendant and with due planning the plaintiff and her husband Qurban Hussain filed a petition under Section 491 Cr.P.C. in the Court of learned Sessions Judge, Lodhran. It was further alleged that the marriage of plaintiff with the defendant took place on 19.3.2002. The defendant also filed a suit for restitution of conjugal rights and both the suits were consolidated and out of the pleadings of the parties, the following consolidated issues were framed :--

1.         Whether the plaintiff has no cause of action to file this suit? OPD

2.         Whether the suit is based on mala fide intention? OPD

3.         Whether the plaintiff is legally wedded wife of the defendant? OPD

4.         Whether the plaintiff is entitled to the decree for jactitation of marriage? OPP

5.         Whether the defendant is entitled to the decree for restitution of conjugal rights? OPD

5-A.     Whether Qurban Hussain has divorced the plaintiff? OPD

6.         Relief.

3.  The parties produced their evidence and after hearing them the learned trial Court decided Issues No. 1 & 2 against the defendant. Issues No. 3 & 5-A were decided in favour of defendant Mureed Hussain. Issue No. 4 was decided against the plaintiff. Issue No. 5 was decided in favour of the defendant and resultantly vide impugned judgment and decree dated 10.12.2003 dismissed the suit for jactitation of marriage and decreed the suit for restitution of conjugal rights. Feeling aggrieved the present petitioner filed two separate appeals, one against the dismissal of her suit for jactitation of marriage and the other against the decree for restitution of conjugal rights passed in favour of the defendant and both the appeals through consolidated judgment were dismissed by the learned Additional District Judge, Kahroor Pakka vide judgment and decree dated 14.5.2004. Hence this writ petition.

4.  Learned counsel for the petitioner contended that it is an admitted fact that both the parties belong to Shia sect and according to Shia Law, the pronouncement of Talaq is necessary but both the Courts below had ignored this fact and from the evidence it is not established that Qurban Hussain husband of the plaintiff had ever pronounced the Talaq. He further contended that according to the defendant Qurban Hussain has executed a written Talaq Nama but strangely enough the said Talaq Nama was not produced in the evidence nor there is any evidence to show that in whose presence Qurban Hussain had ever pronounced the Talaq. He further contended that even if for argument sake it be presumed that the plaintiff had entered into a marriage with Mureed Hussain even then it does not imply that she was divorced by her husband Qurban Hussain and both the Courts below had misread the evidence and had decided the case merely on presumptions and conjectures while ignoring this important aspect of the case that from the evidence it is not established that Qurban Hussain has ever divorced the plaintiff. He further contended that the plaintiff is now residing with Qurban Hussain and has one child out of the wedlock and she is 9 months pregnant and at this stage even the paternity of said child is at stake.

5.  On the other hand, learned counsel for the respondent supported the impugned judgments and decrees of both the Courts below and contended that the evidence produced by the plaintiff clearly shows that plaintiff was divorced by Qurban Hussain and documentary evidence also established this fact. He contended that concurrent findings of both the Court below can not be interfered with in writ petition. He placed reliance upon "Peter John and others Vs. Syed Ali Imam and others" (1986 MLD 1008), "Liaquat Hussain and others vs. Abdul Majid and others" (1986 SCMR 1906), "Shahid Raza Vs. Dr. Fauzia Shaheen etc" (NLR 2005 Civil 235), "Muhammad Nawaz and another Vs. Inayat Muhammad and another" (1990 SCMR 1027) and "Abdul Rahim Vs. Maqbool Ahmad" (NLR 1988 SCJ-126).

6.  Arguments heard. Record perused.

7.  Infact Issues No. 3 & 5-A are the material issues on the basis of which the fate of present controversy rests. As has been mentioned above that in the written statement the defendant alleged that Qurban Hussain had divorced the plaintiff and thereafter she contracted marriage with the defendant. Now the moot point is that whether Qurban Hussain had divorced the plaintiff and if it is proved that she was never divorced by the Qurban Hussain then even if the plaintiff had contracted marriage with Mureed Hussain, even then the said marriage is absolutely void so the determining factor in this case is that whether Qurban Hussain had ever divorced the plaintiff. In this respect Mst. Ruqia Bano herself appeared as PW-1. She deposed that she was married with Qurban Hussain on 22.2.2002 and she was never divorced by Qurban Hussain nor she contracted marriage with Mureed Hussain but she was abducted by Mureed Hussain and her thumb marks were obtained on papers forcibly. In the cross-examination she deposed that she had filed a suit for maintenance against Qurban Hussain but thereafter the compromise was affected. She was questioned by the Court that whether she appeared before the Family Court, Mailsi and made the statement to which she replied that she was forcibly taken away to the Court and her statement was got recorded. She denied that she was ever divorced by Qurban Hussain. She admitted her picture Ex.D-I with Mureed Hussain but deposed that it was forcibly taken in order to blackmail Qurban Hussain. Now from the statement of PW.1 at least it is established that she had denied that she had ever been divorced by Qurban Hussain. Bilal Hussain appeared as PW-2. This witness was brother-in-law of Qurban Hussain and he also deposed that Qurban Hussain had never divorced the plaintiff. Zameer Hussain who was also brother-in-law of Qurban Hussain appeared as PW-3 and he also denied that plaintiff was ever divorced by Qurban Hussain. Qurban Hussain PW-4 deposed that plaintiff was married with him on 22.2.2002 and he had never divorced the plaintiff. The statement of PW-2 also reveals that he admitted that the plaintiff after the alleged marriage with Mureed Hussain remained at the house of father of plaintiff but he denied the suggestion that on 20.12.2002 Qurban Hussain had divorced her. Now this statement at the most suggest that plaintiff married with Mureed Hussain but in no way it proves that she was divorced by Qurban Hussain.

8.  As has been mentioned above that PW-4 Qurban Hussain himself denied that he ever divorced the plaintiff. In the cross-examination he denied that on 12.2.2002 he had purchased the stamp paper and handed over it to Irshad Hussain father of plaintiff. He also denied that on 12.12.2002 he had divorced Mst. Ruqia Bano. He also admitted that the plaintiff had filed a suit against him at Mailsi and appeared before the said Court and made the statement. He denied that Mst. Ruqia Bano before the said Family Court at Mailsi had made the statement that Qurban Hussain had divorced her. Besides this oral evidence a copy of FIR Ex.P-1 and copy of Nikah Nama mark "A" was produced by the plaintiff in evidence. On the other hand Shamshad Ahmad appeared as DW.1. This witness is very much material since on the basis of statement of this witness and other DWs both the Courts below had come to the conclusion that Qurban Hussain had divorced the plaintiff. This witness deposed that on 12.12.2002 Qurban Hussain, Niaz Shah, Zafar Abbas, Bashir Shah, Irshad Shah and Mushtaq Shah after Maghrab came to him and Mureed Hussain got executed Talaq Nama on the stamp paper of value of Rs.85. Qurban Hussain got it written with his consent and he thumb marked the same and that Qurban Hussain was previously known to him and after writing the said Talaq Nama he handed it over to Qurban Hussain and also made entry in the register of stamp paper and Qurban Hussain also thumb marked and signed his register and this stamp paper was entered at Serial No. 1126 of the said register dated 12.12.2002. He further deposed that Qurban Hussain got executed another Iqrar Nama which was executed between Irshad Hussain father of plaintiff and Qurban Hussain and this stamp paper was also signed by Qurban Hussain and 4 others. Iqrar Nama was entered at Sr.No. 1127 dated 12.12.2002 and this Iqrar Nama is Ex.D-2. Now if we go through the statement of this witness, this clearly shows that allegedly on 12.12.2002 two stamp papers were executed by Qurban Hussain, one was Talaq Nama which was handed over to Qurban Hussain and other was Iqrar nama. Iqrar Nama has been produced as Ex.D-2 but strangely enough the said written Talaq Nama has not been produced in evidence. At the most it implies that Talaq Nama was got executed by Qurban Hussain but no where statement of this witness shows that Qurban Hussain had pronounced the Talaq. Until and unless the Talaq is pronounced, it cannot be presumed that Qurban Hussain had divorced the plaintiff.

9.  There is yet another aspect which must be kept in mind that as to when allegedly Qurban Hussain had divorced the plaintiff. When PW-4 Qurban Hussain himself appeared as a witness the suggestion was put to him that he had divorced Mst. Ruqia Bano on 12.12.2002. However, when PW-2 appeared as witness a suggestion was put to him that Qurban Hussain had divorced Mst. Ruqia Bano on 20.12.2002 but when the plaintiff herself appeared as PW. 1 no date was put to her that on the said date i.e. on 12.12.2002 or 20.12.2002 Qurban had divorced her. It may also be mentioned here that Ex.D-2 stamp paper of Iqrar Nama was not issued in the name of Qurban Hussain but in the name of Irshad Hussain and entry is available on the back of Ex.D-2. Niaz Hussain appeared as DW.2. He narrated entirely different story. He submitted that Qurban had filed a suit for restitution of conjugal rights on 23.11.2002 and notice was received at the house of Irshad Hussain and both the parties on 12.12.2003 (and not on 12.12.2002) assembled at his house and he asked Irshad Hussain not to get the criminal case registered but they would get executed the Talaq Nama from Qurban Hussain and on the same day Qurban Hussain executed the Talaq Nama. Now according to this witness the Talaq nama was executed on 12.12.2003. This also negates the version of defendant that on 12.12.2002 Qurban Hussain had executed Talaq Nama. At the cost of repetition it may be mentioned here that said Talaq Nama has never been produced in the Court. Now this witness is also silent that Qurban Hussain had ever pronounced the Talaq orally as is the case of DW.1. The third witness is Mushtaq Hussain, who is DW-3 and he is father of Mureed Hussain defendant. He deposed that father of plaintiff had obtained Talaq from Qurban Hussain through Punchayat and Qurban had divorced the plaintiff with his free consent. He has not uttered even a single word that Qurban Hussain had pronounced the Talaq or had ever executed any Talaq Nama so his statement also does in no way imply that Qurban had ever pronounced the Talaq. In the cross-examination also he admitted that at the time of Talaq he was not present. He also admitted that even in the Punchayat he was not present. In the cross-examination he further deposed that Seghaz (           ) of Talaq were recited by Zulfiqar Shah at the house of Irshad Hussain but strangely enough the said Zulfiqar Shah has not been produced as a witness. He admitted that it was his uncle who informed him that plaintiff had been divorced. Mureed Hussain himself appeared as DW-5. He deposed that plaintiff was divorced by Qurban Hussain. He admitted that Qurban Hussain got criminal case registered against him for abduction of plaintiff and he remained in jail. He has not uttered even a single word that in whose presence Qurban Hussain had ever pronounced the Talaq.

10.  As far as documentary evidence is concerned, Ex.P-1 is the copy of FIR No. 190 dated 4.6.2003 wherein Qurban Hussain had got the criminal case registered against Mureed Hussain for the abduction of his wife Mst. Ruqia Bano. Ex.D-1 is the photograph of Mureed Hussain and plaintiff but as has been mentioned above that the main controversy is that whether Qurban Hussain had ever divorced the plaintiff and if it is proved that he had not divorced the plaintiff then even if the plaintiff had contracted marriage with Mureed Hussain even then she could not be said to be legal wedded wife of Mureed Hussain. Ex.D-2 is the Iqrar nama allegedly executed between Irshad Hussain and Qurban Hussain. In this Iqrar nama it is mentioned that Irshad Hussain through Punchayat had obtained the Talaq nama dated 12.12.2002. Even in this Iqrar Nama it is nowhere mentioned that Qurban Hussain had pronounced  the  Talaq.  If  the Talaq Nama had been obtained by Irshad Hussain as is mentioned in Ex.D-2, then why the said Talaq Nama has not been produced in evidence. This apparently also shows that infact no Talaq Nama was ever executed. Had it been so executed, this would have been the most material document. Ex.D-3 is the copy of plaint which shows that on 17.2.2003 the plaintiff had filed a suit for maintenance against Qurban Hussain. The order sheet shows that on 25.4.2003 the defendant Qurban Hussain made the statement that he was ready to pay Rs.500/- per month as maintenance provided the plaintiff resides with him. On this statement the plaintiff was summoned by the Family Court, Mailsi. The plaintiff appeared before the Court on 3.6.2003. It may be mentioned here that this was not the date fixed in the main suit and file was requisitioned on the written application of Mst. Ruqia Bano wherein she made the statement that Qurban Hussain had divorced her and she had not filed the suit and she had contracted marriage with Mureed Hussain and that the suit be dismissed. Now strangely enough on the same statement the case was adjourned for the fixed date wherein only order was passed that since the plaintiff had refused that she had filed the suit so it be dismissed. The said Court had not summoned Qurban Hussain to verify this fact that whether he had divorced the plaintiff or not in this way this statement of Mst. Ruqia Bano does in no way establish that Qurban Hussain had divorced her. If it is left to the discretion of the wife that whenever she would say that she had been divorced by her husband then the Talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against the principle of law, since Talaq is to be pronounced by the husband and mere statement of wife is not enough to prove that she had been divorced. Ex. D-5 is a petition moved by Irshad Hussain against Qurban Hussain for harassment and this document is as no help for reaching at the conclusion that Qurban Hussain had divorced the plaintiff. Thus, after going through the entire evidence, it stands established that no where from the evidence it is proved that Qurban Hussain had ever divorced the plaintiff Both the Courts below had infact misread the evidence and has dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so the divorce stands established and thus, committed material irregularity while declaring the plaintiff to be the legally wedded wife of Mureed Hussain.

11.  As far as the contention of learned counsel for the respondent with regard to concurrent findings of both the Courts below are concerned, suffice it would be to say that normally the Courts in a writ petition do not interfere with the concurrent findings but when there is clear cut misreading of evidence and material irregularity in the impugned judgments, this Court has the jurisdiction to interfere even if the findings are concurrent. On this principle the case law cited by the learned  counsel  for  the  respondent  is distinguishable. Resultantly, the findings of learned Trial Court and learned appellate Court on Issues No. 3, 4, 5 & 5-A are set aside. Issue No. 3 stands decided against the defendant. Issue No. 4 stands decided in favour of the plaintiff. Issues No. 5 and 5-A stands decided against the defendant. Resultantly, the judgments and decrees of both the Courts below are set aside and the suit filed by the plaintiff for jactitation of marriage stands decreed while the suit filed by Mureed Hussain for restitution of conjugal rights stands dismissed. Since the complicated questions of fact and law were involved, so the parties are left to bear their own costs.

(R.A.)  Petition allowed

Read More

-Suit for dissolutation of marriage, recovery of dower and dowry articles--Direction to return of five tolas gold in lieu of Khula--

 PLJ 2012 Lahore 133

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 10(4)--Limitation Act, (IX of 1908), S. 5--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Constitutional jurisdiction of High Court after lapse of four years--Laches--Suit for dissolutation of marriage, recovery of dower and dowry articles--Pre-trial re-conciliation proceedings failed, suit for dissolution of marriage was decreed on ground of Khula--Direction to return of five tolas gold in lieu of Khula--Challenged to--Validity--Whereas in filing of constitutional petition lapse of time or question of laches is to be examined on equitable principles for reason that exercise of constitutional jurisdiction is always in nature of equitable relief--Petitioner had invoked constitutional jurisdiction of High Court after a lapse of four years--Petitioner invoking constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity and gross negligence in enforcement of her right--Petition was liable to be dismissed on ground of laches--Petition was dismissed.          [P. 137] A

PLD 2010 Lah. 308, 2005 CLC 1447, PLD 1987 Lah. 471, 1999 SCMR 1072, 2006 CLC 1662 & 2008 CLC 587, rel.

Mr. Khalil-ur-Rehman Mayo, Advocate for Petitioner.

Rana Muhammad Javed Iqbal, Advocate for Respondents.

Date of hearing: 24.5.2011.

 PLJ 2012 Lahore 133

[Multan Bench Multan]

Present: Syed Iftikhar Hussain Shah, J.

Mst. AAMNA ABDULLAH--Petitioner

versus

JUDGE FAMILY COURT, MULTAN and another--Respondents

W.P. No. 10933 of 2010, decided on 24.5.2011.

Order

Mst. Aamna Abdullah has called in question the legality of the order and decree dated 31.1.2007 passed by the learned Judge Family Court, Multan whereby her suit for seeking decree for dissolution of marriage was decreed subject to the return of Rs.500/- and five tolas gold ornaments in lieu of Khula.

2.  Mst. Aamna Abdullah (petitioner) instituted suit for seeking decree for dissolution of marriage, recovery of maintenance for herself and her minor son, for recovery of dower and dowry articles against Nemat Ullah (Respondent No. 2) with whom her marriage was solemnized on 08.02.2004. Her dower was fixed as Rs.500/- in cash, five tolas gold and a house, consisting of 2 1/2 Marlas. The articles mentioned in the list Annexure-A were also given to her at the time of her marriage. Her dower is still unpaid. According to her the attitude of the Respondent No. 2 was cordial in the beginning but became harsh lateron and he started to beat her and a after four months of the marriage, Respondent No. 2 ousted her from his house. Adeel the minor son was born in the house of her parents and respondent has not even paid the expenditures incurred on delivery. Now it is impossible for her to live with her husband within the limits prescribed by Almighty Allah. Hence, this suit.

3.  Respondent No. 2 contested the suit and allegations leveled in the plaint were denied and it was contended that the dower of Rs.500/- and five tolas gold ornaments had already been paid to the plaintiff.

4.  On 31.01.2007 when the case was fixed for pre-trial reconciliation proceedings, Respondent No. 2 did not appear in the Court and the learned Judge Family Court in the light of the provision of Section 10(4) of the West Pakistan Family Courts Act, 1964 after declaring the pre-trial reconciliation proceedings fail, decreed the suit for dissolution of marriage on the ground of Khula. It was also held that from the copy of the Nikkah Nama produced with the file, Rs.500/- and gold ornaments weighing 5 Tolas were paid to the plaintiff/petitioner as dower at the time of her marriage, therefore, she was directed to return the same. Aggrieved by the order of returning the Cash Rs.500/- and five tolas gold in lieu of Khula, the petitioner has invoked the constitutional jurisdiction of this Court.

5.  Learned counsel for the petitioner has contended that Respondent No. 2 has never claimed the return of dower in lieu of Khula, the petitioner has not claimed dissolution of marriage mere on the basis of Khula, therefore, the order of the Judge Family Court regarding the returning of Rs. 500/- and five tolas gold ornaments is illegal and void. Reliance has been placed on Muhammad Zafar v. Judge, Family Court and another (2005 CLC 1844) and Farida Khanum v. Maqbul Ilahi and 2 others (1991 MLD 1531). It is further contended that the petitioner could not invoke the jurisdiction of this Court due to the illegal advice of her previous counsel and due to her ailment, therefore the delay in filing the writ petition is liable to be condoned in the light of Farzand Raza Naqvi and 5 others v. Muhammad Din through legal heirs and others (2004 SCMR 400), S.A.Jameel v. Secretary to The Government of the Punjab, Cooperative Department and others (2005 SCMR 126) and Masooda Begum through legal heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others (PLD Supreme Court 90).

6.  On the other hand, learned counsel for Respondent No. 2 has contended that the learned Judge Family Court has passed the impugned order in accordance with law after going through the evidence present on record especially the copy of Nikkah Nama submitted by the petitioner herself wherein it was mentioned that Rs.500/- and five tolas gold ornaments had been given to the petitioner at the time of her marriage. The learned Judge Family Court has rightly directed the petitioner to return those benefits in lieu of Khula. Learned counsel for the respondent has further contended that the writ petition has been filed alter lapse of four years of passing the impugned order and decree which was required to be filed within a reasonable time. Such inordinate delay in approaching High Court can not be condoned. He further contended that the impugned order and decree are in accordance with law. Learned counsel relied on Mst. Rahmat v. Additional District Judge-II, Muzaffargarh and 2 others (PLD 2010 Lahore 308), Tayyab Iqbal v. Member, (Colonies) Board of Revenue, Punjab Lahore and 3 others (2005 CLC 1447), Shams Din v. Aman Ullah and 3 others (1987 PLD Lahore 471), Gatron (Industries) Limited v. Government of Pakistan and others (1999 SCMR 1072), Babar Islam v. Mst. Sheeba Bashir and another (2006 CLC 1662) and Abdul Haq Shahid v. District Judge, Toba Tek Singh and 2 others (2008 CLC 587).

7.  After the failure of the reconciliation proceedings, the learned Judge Family Court decreed the suit of the petitioner for dissolution of marriage in view of the proviso of the Section 10(4) of the West Pakistan Family Courts Act, 1964. In Paragraph No. 10 of the plaint it has been categorically mentioned that the attitude of the respondent was harsh towards plaintiff. He has failed to maintain her, therefore she has developed hatred in her mind against him and can not live with him within the limits prescribed by Almighty Allah. Therefore, she wants decree for dissolution of marriage on the basis of Khula.

8.  The proviso of Section 10(4) of West Pakistan Family Courts Act, 1964 is as under:--

"That notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage."

9.  In the instant case, the petitioner has relied on the Nikkah Nama wherein it has been mentioned that Rs.500/- and five tolas gold ornaments had been given to the petitioner at the time of her marriage. The entry of Nikkah Nama regarding the payment of aforesaid dower has not been challenged by the petitioner so far before any competent forum. The bare perusal of Nikkah Nama reveals that Rs. 500/- and five tolas gold ornaments have been given to the petitioner at the time of marriage. According to the aforesaid proviso of Section 10(4) of the West Pakistan Family Courts Act, 1964 it is mandatory upon the Family Courts that a decree for dissolution of marriage is dependant upon the restoration of Haq-ul-Maher to the husband. In the present case the learned Judge Family Court has properly exercised the jurisdiction vested in it and dissolved the marriage strictly in accordance with law. The case law produced by the learned counsel for the petitioner is not directly applicable to the facts and circumstances of the case. The petitioner has claimed dissolution of marriage on the basis of Khula which has been granted to her in accordance with law. The constitutional petition has not been filed within a reasonable time, while dealing the matter delay in filing of the legal proceedings within the period  specified  under the provision of law, the Hon'ble Supreme Court in the case titled S.A. Jameel v. Secretary to the Government of the Punjab, Cooperative Department and others (2005 SCMR 126) has held that in case of limitation, the delay of each day is to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within the contemplation of Section 5 of Limitation Act, 1908 whereas in filing of Constitutional petition lapse of time or question of laches is to be examined on equitable principles for the reason that the exercise of Constitutional jurisdiction is always discretionary with the Court and relief so granted is always in the nature of equitable relief---In case High Court comes to a conclusion that equity leans in favour of petitioner, the Court must exercise discretion in favour of such party but in the instant case, the petitioner has invoked the constitutional jurisdiction of this Court after a lapse of four years. The petitioner involving the constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity and gross negligence in the enforcement of her right. Therefore, this petition is also liable to be dismissed on the ground of laches.

10.  In the light of aforesaid discussion, the present petition is without merits and the same is hereby dismissed.

(R.A.)  Petition dismissed

Read More

-Fight to defend was lost u/S. 17-A of Family Courts Act, 1964, when defendant ordered to pay interim maintenance allowance fails-

 PLJ 2013 Lahore 232

Punjab Family Courts Act, 1964 (XXXV of 1964)--

----S. 17-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Struck off right to cross examine witnesses--Suit for payment of maintenance allowance--Order to pay interim maintenance to minor--Right of defence was right to contest and endeavour to defeat claim of plaintiff--Validity--Fight to defend was lost u/S. 17-A of Family Courts Act, 1964, when defendant ordered to pay interim maintenance allowance fails--Since right to defend was right to contest and to endeavour to defeat claim made by plaintiff set forth in plaint, it was done by defendant by presenting written statement of his defence, by production of his own evidence by subjecting witnesses of plaintiff to cross examination and by objecting to admissibility and relevance of document produced by plaintiff--On account of failure to do facts or on account of breach of conditions, defendant loses his right to defend claim set forth by plaintiff--Petitioner had neglected to pay interim maintenance allowance--Court might strike off right of defence of petitioner--Husband had lost his right of defence that includes right of filing written statement production of evidence, subjecting plaintiff witnesses to cross examination and of objection to admissibility or relevance of plaintiff's documents--Court has right to examine genuineness of claim, needs of minors and financial capacity to maintenance allowance--Impugned order was decided to strike off defence of petitioner u/S. 17-A, his right to produce evidence would be deemed to have been struck off--Petition was dismissed.        [P. 234] A, B, C, D, E & F

1999 SCMR 2832 & 2007 CLD 1649, ref.

Khawaja Qaiser Butt, Advocate for Petitioner.

Malik Farooq Ahmad Thaheem, Advocate for Respondents.

Date of hearing: 15.1.2013.

 PLJ 2013 Lahore 232

[Multan Bench Multan]

Present: Ijaz Ahmad, J.

MUHAMMAD EJAZ--Petitioner

versus

JUDGE FAMILY COURT, KHANEWAL and 3 others--Respondents

W.P. No. 15680 of 2012, decided on 15.1.2013.

Order

The Respondents No. 2 & 3, sons and Respondent No. 4, wife of the petitioner, instituted a suit for payment of maintenance allowance @ Rs.5000/- each per month. The suit was contested. The learned Judge, Family Court vide order dated 02.10.2012 ordered the petitioner to pay Rs.1500/- per month to the minor Respondents No. 2 and 3 as interim maintenance. It was not paid. The learned Judge, Family Court vide order dated 28.11.2012 struck off the right of the petitioner to cross-examine the witnesses, under Section 17-A of the West Pakistan Family Courts Act, 1964.

2.  It is contended by the learned counsel for the petitioner that in case of failure to comply with the interim order for the payment of maintenance allowance, the learned judge could strike off the defence of the petitioner which includes the submission of written statement if already not made and the right to produce his own evidence. The right of the petitioner to cross examine the respondents/plaintiffs' witnesses could not be struck off.

3.  On the other hand, it is contended by the learned counsel for the respondents that in case, the interim order of Family Court for the payment of maintenance is not complied with, the plaintiffs are entitled to a decree for payment of maintenance allowance forthwith and that the striking off defence of the defendant includes refusing him the right to submit written statement, produce his own evidence and to cross examine the witness produced by the plaintiffs.

4.  I have heard the learned counsel for the parties and have also gone through the record.

5.  The right of defence is the right to contest and endeavour to defeat the claim of the plaintiff. It is a set of acts placing the defence between the force exerted by plaintiff by initiation of suit and the object to have the relief from the Court. Various statutes bestow this right on the defendant as a matter of right. It accrues to the defendant, the movement a plaintiff institutes a suit. Rule 1 of Order VIII C.P.C provides that the defendant may, and, if so required by the Court, shall at or before the first hearing present a written statement of his defence. Same is the case in a suit instituted under West Pakistan Family Courts Act, 1964 and many other provisions of law. However, in a suit instituted under Order XXXVII, C.P.C, under Financial Institutions (Recovery of Finances) Ordinance, 2001 and under Punjab Rent Premises Act, 2009, the right to defend or contest has to be sought. This fight to defend is lost under Section 17-A of West Pakistan Family Courts Act, 1964 when defendant ordered to pay the interim maintenance allowance fails. Under Section 10(11) of the Ordinance, 2001 ibid if an application for leave to contest is rejected or the defendant fails to fulfill the conditions, a decree will be passed in favour of the plaintiff and against the defendant forthwith. Same is the case in an application made under PRPA, 2009. Similar are the provisions under Order XXXVII, Rule 2(2) C.P.C. Since the right to defend is the right to contest and to endeavour to defeat the claim made by the plaintiff set forth in the plaint, it is done by the defendant by presenting the written statement of his defence, by production of his own evidence, by subjecting the witnesses of plaintiff to cross-examination and by objecting to the admissibility and relevance of the document produced by the plaintiff. On account of failure to do certain facts or on account of breach of certain conditions, the defendant loses his right to defend the claim set forth by the plaintiff.

6.  In the instant case, the petitioner/defendant had neglected to pay the interim maintenance allowance. The penalty provided under Section 17-A of the West Pakistan Family Courts Act, 1964, the Court might strike off the right of the defence of the petitioner. The Court had on the previous date warned the defendant that it could be done. The petitioner/defendant has lost his right of defence that includes the right of filing the written statement, production of evidence, subjecting the plaintiff's witnesses to cross-examination and of objection to the admissibility or the relevance of the plaintiff's documents.

7.  However, this penalty imposed on the petitioner will not automatically entitle the respondents/plaintiffs to a decree for payment of maintenance allowance as prayed in the plaint. The Court has the right to examine the genuineness of the claim of the plaintiff, the needs of the minors and the financial capacity of the petitioner to pay the maintenance allowance. I seek support from the judgments `Col. (Retd.) Ashfaq Ahmed and others vs. Sh. Muhammad Wasim' (1999 SCMR 2832) and `Kings Tyre Industries Limited through Director and 5 others vs. Union Bank Limited through Manager and 2 others' (2007 CLD 1649). Since the Judge Family Court, in view of the impugned order has decided to strike off the defence of the petitioner under Section 17-A of the Act ibid, his right to produce evidence shall also be deemed to have been struck off. This petition fails and is dismissed.

(R.A.)  Petition dismissed

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-Suit for recovery of Dower--Petitioner’s recourse to defend his title in disputed land, decreed in respondent’s favour as her dower, before Family Court and latter before Additional District Judge, though somewhat haphazard, nonetheless, was the only option available to him-

 PLJ 2022 SC 26

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

----S. 14--Muslim Family Laws Ordinance, 1961, S. 10--Suit for recovery of Dower--Petitioner’s recourse to defend his title in disputed land, decreed in respondent’s favour as her dower, before Family Court and latter before Additional District Judge, though somewhat haphazard, nonetheless, was the only option available to him--Family Court decreed the suit, without a full dress trial merely upon failure of respondent’s husband to take special oath--Exclusion of normal rules of procedure and proof, applicable in civil plenary jurisdiction for adjudication of disputes in proceedings before a Family Court, is essentially designed to circumvent delays in disposal of sustenance claims by vulnerable--Court find no clog on authority of a Family Court to reexamine its earlier decision with a view to secure ends of justice and prevent abuse of its jurisdiction--Impact of fraud practiced upon tribunals exercising plenary or limited jurisdictions, respectively, cannot be procedurally classified as in all jurisdictions of unreadeemedly vitiates very solemnity of adjudication--Impugned judgment is set aside, as a consequence thereof, appellant’s claim in the property as mentioned in his application be attended by Additional District Judge, Multan before whom his application under section 12 (2) of Code shall be deemed as pending.          [Pp. 29, 30 & 31] A, B, C, D &, E

2014 SCMR 1365; 2017 SCMR 321; 1992 SCMR 917 ref.

Mr. Ibad-ur-Rehman Lodhi, ASC and Syed Rifaqat Hussain Shah, AOR for Petitioners.

Maulvi Anwar-ul-Haq, ASC and Barrister Umer Aslam, ASC for Respondents.

Date of hearing: 16.4.2021.

 PLJ 2022 SC 26
[Appellate Jurisdiction]
Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ.
MUHAMMAD ARSHAD ANJUM--Petitioner
versus
Mst. KHURSHID BEGUM and others--Respondents
C.P. No. 1530 of 2019, decided on 16.4.2021.
(Against the order dated 04.03.2019 passed by the Lahore High Court Multan Bench Multan in F.A.O. 135 of 2011)

Judgment

Qazi Muhammad Amin Ahmed, J.--Center of controversy is land measuring 298-Kanals 4-Marlas situating in the revenue limits of Mouza Lutafpur District Multan; it originally vested with Muhammad Manzoor Respondent No. 6 who sold it to Muhammad Akram, Muhammad Shameer, Muhammad Khalid and Muhammad Hamid sons of Wali Muhammad for a consideration of Rs. 93,18,700/- vide Mutation No. 1994, attested on 17.8.2005; petitioner purchased this land from its previous owners through different transactions, mutated on 26.7.2007 and 27.10.2007, respectively; it is his claim that on 7.1.2010, his request to obtain certified copies of the revenue record relating to the said land was declined by the Halqa Patwari on the ground that it was under attachment; he was astonished by a Family Court decree dated 30.05.2008 whereby a suit filed by Khurshid Begum against her husband, Respondent No. 6 for the recovery of maintenance, dower and dowry was decreed in consequence of latter’s failure to take special oath; he also failed in appeal before a learned Additional District Judge at Multan on 15.07.2008; a Constitution petition before a learned Judge-in-Chamber of the Lahore High Court at Multan Bench met with no better fate on 5.11.2008. Baffled by the events, the petitioner first filed an objection petition on 9.1.2010, dismissed on 5.5.2010 due to pendency of an application under Section 12(2) of the Code of Civil Procedure, 1908 (the Code); it was withdrawn in view of pendency of an identical application before a learned Additional District Judge, that too was dismissed on 9.4.2011, having regard to the failure of supra Constitution petition. Undeterred by successive failures, the petitioner once again approached the learned Additional District Judge for setting aside the decree with results no different than the previous; this once again brought him before the High Court with yet another setback by judgment dated 4.03.2019 to have his last recourse before us. In his arduous journey throughout, it has been his case that Family Court decree was procured through a surreptitious conspiratorial collusion that manifestly constituted “fraud and misrepresentation” within the contemplation of Section 12(2) of the Code ibid and, thus, was liable to be set aside.

2. Learned counsel for the petitioner contends that suit filed by Respondent No. 1 against her husband was fraudulently devised, structured on a marriage certificate with interpolated entries, mischievously contrived to defeat petitioner’s legitimate rights acquired through valid transactions and as such the impugned decree, based upon a dubious conduct as well as outcome of fraud cannot sustain. Fraud vitiates the most solemn proceedings, added the learned counsel. It is next argued that exclusion of provisions of the Code barring Sections 10 & 11 does not stand in impediment to examination of a plea of fraud by a party before a Family Court particularly when it is evident on the record. The spouses seemingly remained in the wedlock throughout despite an ostensible acrimonious contest for a sizable chunk of land claimed as deferred dower against a petty sum of Rs. 500/- as prompt are circumstances by itself intriguing, clamouring for a thorough probe, concluded the learned counsel. Contrarily, the learned counsel for the respondents argued that the land in question was given by late Muhammad Manzoor to his wife as dower and, thus, no subsequent transaction could possibly defeat her interest in the said land; according to him, it was beyond jurisdictional competence of a Family Court to adjudicate upon the issues raised by the petitioner, a business to be best attended in a plenary jurisdiction; he has also referred to the limited application of the Code in proceedings before a Family Judge.

3. Heard. Record perused.

4. Petitioner’s recourse to defend his title in the disputed land, decreed in respondent’s favour as her dower, before the Family Court and latter before the Additional District Judge, though somewhat haphazard, nonetheless, was the only option available to him. The Family Court decreed the suit, without a full- dress trial merely upon failure of respondent’s husband to take special oath, a circumstance that too prevailed with the learned Appellate Court. Ostensible contest remained restricted between the spouses without slightest breach in the nuptial bond, to the exclusion of rest of the world. Failure of petitioner’s Constitution petition in the High Court also turned out a far cry. Throughout the contest, respondent relied upon technical barricades, thus, the questions that call for our consideration are whether exclusion of the provisions of the Code of Civil Procedure, 1908 barring Sections 10 and 11 thereof, stood in impediment to petitioner’s approach to the Family Court for reexamination of the judgment within the contemplation of Section 12 (2) of the Code or that he should have asserted his claim of being a bonafide purchaser with consideration through an intervener in civil plenary jurisdiction?

The Family Court Act, 1964 (W.P. Act XXXV of 1964) (the Act) was enacted for “…… expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith”; provisions of the Qanun-e-Shahadat Order, 1984 (P.O. No. 10 of 194) and those of the Code except Sections 10 and 11 have been excluded to achieve the legislative intent. The exclusion of normal rules of procedure and proof, applicable in civil plenary jurisdiction for adjudication of disputes in proceedings before a Family Court, is essentially designed to circumvent delays in disposal of sustenance claims by the vulnerable; this does not derogate its status as a Court nor takes away its inherent jurisdiction to protect its orders and decrees from the taints of fraud and misrepresentation as such powers must vest in every tribunal to ensure that stream of justice runs pure and clean; such intendment is important yet for another reason, as at times, adjudications by a Family Court may involve decisions with far reaching implications/consequences for a spouse or a sibling and, thus, there must exist a mechanism to recall or rectify outcome of any sinister or oblique manipulation, therefore, we find no clog on the authority of a Family Court to reexamine its earlier decision with a view to secure the ends of justice and prevent abuse of its jurisdiction and for the said purpose, in the absence of any express prohibition in the Act, it can borrow the procedure from available avenues, chartered by law.

Question of non-applicability of the Code barring Sections 10 and 11 thereof came up before the Court in the case of Muhammad Tabish Naeem Khan vs. Additional District Judge Lahore and others (2014 SCMR 1365), in the said case, plea of ouster of procedure was repelled as under:

“We are not persuaded to hold, that the ex parte decree dated 4.7.2008 was void, for the reason that there is no provision in the West Pakistan Family Courts Act, 1964 to strike off the defence of the petitioner, when he failed to file the written statement, thus, it (decree) should be ignored; suffice it to say that the Family Court is the quasi judicial forum, which can draw and follow its own procedure provided such procedure should not be against the principles of fair hearing and trial …….”.

In the case of Haji Muhammad Nawaz vs. Samina Kanwal and others (2017 SCMR 321) it was reiterated that:

“Family Court, whether as a trial Court or an executing Court, are governed by the general principles of equity, justice and fair play”.

Impact of fraud practiced upon tribunals exercising plenary or limited jurisdictions, respectively, cannot be procedurally classified as in all jurisdictions it unredeemedly vitiates the very solemnity of adjudication, a wrong that cannot be countenanced and must be remedied through dynamic application of equitable principles of law and such approach has been approved by this Court in a good number of cases arising out of erstwhile rent laws that too excluded wholesale application of the Code. See PLD 1975 SC 331 The Chief Settlement Commissioner, Lahore vs. Raja Mohammad Fazil Khan and others, 1992 SCMR 917 (Tanveer Jamshed and another vs. Raja Ghulam Haider, 1992 SCMR 1908 Mst. Fehmida Begum vs. Muhammad Khalid and another, 1993 SCMR 226 Fazal Elahi Malis through legal heirs vs. Miss Abida Reasat Rizvi, 1997 SCMR 1986 Haji Khudai Nazar and another vs. Haji Abdul Bari, 2000 SCMR 540 Masjid Intizamia committee and others vs. Anjuman-e-Falah-o-Bahbood and others, 2001 SCMR 577 Hanif and others vs. Malik Armed Shah and another, 2005 SCMR 882 Suhail Printing Press vs. Syed Aley Eba Zaidi, 2007 SCMR 818 Muhammad Tariq Khan vs. Khawaja Muhammad Jawad Asami and others, 2007 SCMR 1434 Ammanullah Khan Leghari vs. Abid Shaikh Ahmed, 2014 SCMR 1694 Sheikh

Saleem vs. Mrs. Shamim Attaullah Khan and others and 1984 CLC 2855 Abdul Salam vs. Mrs. Tahira Zaidi.

5. Recourse to plenary jurisdiction as suggested by the learned counsel for the respondent would be a journey into a blind alley as in the face of a final decree by the Family Court, holding the field, the proposed course would inevitably lead to a chaotic collusion, if at all the petitioner ever succeed. Therefore, in the circumstances, reconsideration/reexamination of the impugned judgment and decree by the learned Family Court is the only expedient option, conducive to the interest of the contestants. The petition is converted into appeal and allowed with no order as to costs. Impugned judgment dated 04.03.2019 is set aside, as a consequence thereof, appellant’s claim in the property as mentioned in his application be attended by the learned Additional District Judge Multan before whom his application under Section 12(2) of the Code shall be deemed as pending. Since this matter is pending for considerable time, the learned Court seized of the matter, in the fullness of time, shall decide it with all convenient dispatch sooner rather than later.

(Y.A.)  Appeal allowed

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---S. 10(4)--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Dissolution of marriage on ground of Khulla-

 PLJ 2013 Lahore 185

Punjab Family Courts Act, 1964 (XXXV of 1964)--

----S. 10(4)--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Dissolution of marriage on ground of Khulla--Validity of order--Decree was made subject to relinquishment of dower and maintenance--Matter of benefits in matter of dissolution of marriage on the ground of Khulla was appealable.    [P. 186] A

PLD 1987 Lah. 420, ref.

Ch. Sarfraz Ahmad Zia, Advocate for Petitioner.

Date of hearing: 26.11.2004.

 PLJ 2013 Lahore 185

[Multan Bench Multan]

Present: Maulvi Anwar-ul-Haq, J.

Khawaja JAMEEL AHMAD--Petitioner

versus

JUDGE FAMILY COURT, MULTAN and another--Respondents

W.P. No. 6269 of 2004, decided on 26.11.2004.

Order

A suit filed by Respondent No. 2 against the petitioner for dissolution of marriage on the ground of Khula was decreed by the learned Judge Family Court in terms of Section 10(4) of the Family Court Act, 1964 on 29.9.2004. The decree was made subject to relinquishment of dower and maintenance and consequently the suit filed for the said two reliefs by the respondent lady were also dismissed on the same date.

2.  Learned counsel for the petitioner contends that it was plea of the petitioner that he has paid the dower and some other benefits to the lady and the learned Judge Family Court has not decided the said question in accordance with law.

3.  Without making any comments on the said plea of the learned counsel, I find that the matter of the condition/benefits in the matter of dissolution of marriage on the ground of Khula is appealable. Reference be made to the case of "Muhammad Sanaullah versus Muhammad Ilyas, Senior Civil Judge/Family Court Judge, Toba Tek Singh and 2 others" (P.L.D. 1987 Lahore 420). The writ petition is accordingly disposed of with the observation that if deemed proper, the petitioner may file first appeal against the decision of the question of consideration for Khula.

(R.A.)  Petition disposed of

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--Land and gold ornaments were mentioned in nikahnama--Validity--Marriage on basis of Khulla can be dissolved on basis of dower mentioned in Column No. 13 of Nikahnama.

 PLJ 2013 Lahore 104

Khulla--

----Under Islamic Sharia, marriage between a muslim man and woman can be dissolved on basis of khulla for which some consideration is formed--Form of dower which the wife was entitled to receive at time of demand.     [P. 106] A

Bridal Gift--

----Wife is also entitled to receive bridal gifts at time of marriage which is solely her property--As land of gift would go, once a gift is made title/ownership of same is departed from original donor and vests to donee which without consent of latter cannot be returned.     [P. 106] B

Dower--

----Land and gold ornaments were mentioned in nikahnama--Validity--Marriage on basis of Khulla can be dissolved on basis of dower mentioned in Column No. 13 of Nikahnama.  [P. 106] C

Mr. Muhammad Aslam Malik, Advocate for Petitioner.

Mr. Muhammad Amin, Advocate for Respondents No. 2-A to 2-G.

Date of hearing: 18.12.2012.

 PLJ 2013 Lahore 104
[Rawalpindi Bench Rawalpindi]
Present: Ali Baqar Najafi, J.
Mst. MUSSARAT IQBAL NIAZI--Petitioner
versus
JUDGE FAMILY COURT, etc.--Respondents
W.P. No. 200 of 2008, decided on 18.12.2012.

Order

This judgment shall dispose of Writ Petition No. 200 of 2008, Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 as common question of law and facts are involved.

2.  Through this writ petition the petitioner challenges judgment and decree dated 22.01.2008, whereby the suit of the petitioner/ plaintiff for dissolution of marriage was decreed under Section 10(4) of the Family Courts Act, on the condition that she will return 15 tola gold ornaments and 5 Marlas of land to the defendant as consideration for khulla given to her in lieu of dower at the time of marriage.

3.  Brief facts giving rise to the filing of this writ petition are that the petitioner filed a suit for dissolution of marriage against Respondent No. 2 before the Judge Family Court at Rawalpindi in which written statement was filed. On failure of re-conciliation their statements were recorded. A decree for dissolution of marriage was passed conditionally on 22.01.2008 restoring 15 tolas gold ornaments and 12 Marlas of land in favour of Respondent No. 2 under Section 10(4) of the Family Court Act which is challenged in this writ petition.

4.  Learned counsel for the petitioner contends that the imposition of condition of return of 15 tolas gold ornaments and 5 Marlas of land is against law and facts; that Nikahnama reveals that Rs.50,000/- as dower was mentioned in Column No. 13 which was to be payable on demand and the same is not paid up till now which is consideration for khulla; that under Column No. 16 of the Nikahnama land of 5 Marlas have been transferred as gift to the petitioner which is not Haq Mehr and cannot be restored; that gold ornaments weighing 15 tolas have been given as bridal gift which although already snatched by the Respondent No. 2 cannot be formed basis for khulla; that Respondent No. 2 appeared as DW-1 in the earlier case and admitted that she was turned out from his house. Places reliance on Tariq Mehmood vs. Mst. Farah Shaheen (2010 YLR 349) and Perveen Umar and others vs. Sardar Hussain and others (2004 SD 215) to argue that gold ornaments mentioned in Column No. 16 are bridal gift which are not part of the dower and at least cannot be based as consideration for Khulla.

5.  Conversely, the learned counsel for the respondents submits that the suit for recovery of Rs.50,000/- and recovery of maintenance were dismissed whereas suit for restitution of conjugal rights was decreed, against which the appeal was filed in which the same order was upheld on 14.06.2007. This order was challenged in Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 filed by the petitioner; that on 25.07.2007 i.e. immediately after the said judgment suit for dissolution of marriage on the basis of khulla was filed; that no strict principle of CPC and Qanoon-e-Shahadat Order, 1984 are applicable in the cases relating to matrimonial disputes; that Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 were filed on 15.01.2010 and as such the same are hit by laches. Places reliance on Muhammad Husain Munir and others vs. Sikandar and others (PLD 1974 Supreme Court 139), Abdul Rehman Bajwa vs. Sultan and 9 others (PLD 1981 Supreme Court 522) and State Bank of Pakistan through Governor and another vs. Imtiaz Ali Khan and others (2012 SCMR 280).

6.  I have heard the learned counsel for the parties and perused the available record.

7.  Under Islamic Sharia the marriage between a Muslim man and woman can be dissolved on the basis of khulla for which some consideration is formed. This is in the form of dower which the wife is entitled to receive at the time of demand. Apart from that, a wife is also entitled to receive bridal gifts at the time of marriage which is solely her property. As the land of gift would go, once a gift is made the title/ownership of the same is departed from the original donor and vests to the donee which without consent of the latter cannot be returned.

8.  In the instant case, an amount of Rs.50,000/- mentioned in Column No. 13 as dower money, 5 Marlas of land and 15 tolas gold ornaments are also mentioned meaning thereby that the land of 5 Marlas and the said gold ornaments are part of the bridal gift. Consideration for khulla can be the dower amount which is specifically mentioned to be Rs.50,000/-. I rely upon the judgment (2008 SCMR 186), wherein it was held that the marriage on the basis of khulla can be dissolved on the basis of dower mentioned in Column No. 13.

9.  The impugned order in Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 upholding order dated 07.06.2006, whereby suit for recovery of dowry has been satisfied; therefore, no further order is required. Suit for maintenance was dismissed and as Respondent No. 2 is no more alive, no further proceedings would be required in that petition. Similarly, suit for restitution of conjugal rights was decreed in view of the judgment and decree dated 22.01.2008, the same has already become infructuous.

10.  The learned counsel for the respondents under misconception that Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 were filed on 20.01.2010 whereas record reveals that these were filed on 08.09.2007, therefore, no question of laches is involved. In this view of the matter, Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 are dismissed whereas Writ Petition No. 200 of 2008 is allowed with the result that it is declared that marriage between the petitioner and Respondent No. 2 dissolved on 22.01.2008, for a consideration of Rs.50,000/- as khulla which she would forgo. The property 5 Marlas and 15 tolas gold ornaments are bridal gifts and are ownership of the petitioner.

With the above terms these writ petitions stand disposed of.

(R.A.)  Petition disposed of

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