PLJ 2014
Dissolution of Muslim Marriage Act, 1939--
----S. 2(ii) & (iv)--Family Courts Act, 1964, S. 10(4)--Ordered for return of benefits--Suit for dissolution of marriage on ground of non-payment of maintenance allowance non-performance of matrimonial obligation--Applicability of Family Courts Act, to dissolution of marriage on basis of Khula and not to dissolution of marriage on ground available to wife u/S. 2 of Act, 1939--Validity--It is quite evident that among others, ground for non-payment, of maintenance allowance for a period of two years and non-performance of conjugal rights for a period of three years entitles a wife to a decree for dissolution of marriage--Wife was entitled to decree for dissolution of marriage on basis of non-provision of maintenance allowance and non-performance of conjugal rights on the part of husband--Therefore, wife was not obliged to return the benefits, derived by her from the husband on account of marriage--When wife had claimed decree for dissolution of marriage on the grounds enumerated, in the plaint and she had succeeded, in establishing the grounds, Family Court was obliged, to pass a decree for dissolution of marriage, on basis of grounds and not on the ground of Khula and he did so, hence, wife was not obliged to return the benefits, which she had received from husband. [Pp. 962 & 964] A, B & C
PLD 2007 Lah. 626, 2006 MLD 83 & 2006 SCMR 100, rel.
Ch. Muhammad Javed, Advocate for Petitioner.
Mian Tanvir Kamran, Advocate for Respondents.
Date of hearing: 20.11.2013.
PLJ 2014 Lahore 960
[Multan Bench Multan
Present: Arshad Mahmood Tabassum, J.
MUHAMMAD SHAHID FAROOQ--Petitioner
JUDGE FAMILY COURT, etc.--Respondents
Judgment
This petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question judgment and decree dated 24.10.2012, passed by the learned Judge Family Court, Mozaffargarh, whereby he decreed the suit for dissolution of marriage, filed by the Respondent No. 2 Mst. Nusrat Parveen. The grievance of the petitioner appears to be that the Judge Family Court while decreeing the suit has not passed the order regarding return of the benefits, which the respondent had derived by way of dower weighing 4-tola and a house constructed on a piece of land, measuring 4-marla.
2. Learned, counsel for the petitioner has argued that under Section 10(4) of the Family Courts Act, 1964, it was incumbent upon the learned Judge Family Court to have ordered for return of the said benefits, hence, the impugned decree may be modified to that extent. He has relied upon the case of Mst. Hameedan Yasmin (2009 CLC 438).
3. Conversely, the learned, counsel for the respondent has fully supported the impugned, judgment and decree.
4. Heard. Record perused.
5. It appears that Respondent No. 2 instituted a suit for dissolution of marriage on the ground of non-payment of maintenance allowance to her by the petitioner for a period of three years and one month; non-performance of matrimonial obligations for the said period and subjecting her to mal-treatment and not on the basis of Khula. Similarly, the suit was decreed by the learned Judge Family Court on the said grounds, hence, to my mind, the question of return of benefits, which the respondent had derived from the petitioner did not arise. It is noteworthy that decree for recovery of maintenance allowance had been passed against the petitioner obliging him to make payment of maintenance allowance to the respondent from January, 2009, but till the time when the impugned decree for dissolution of marriage dated 24.10.2012 was passed, the petitioner had not made payment of even a single penny towards the maintenance allowance of the petitioner. It was in this background that the learned Judge Family Court in the impugned judgment elaborately held as under:
"She has further deposed that the defendant has neither paid maintenance allowance nor paid dower as well as dowry articles. It is pertinent to mention here that the execution petition titled as Nusrat Perveen vs. Muhammad Shahid Farooq for recovery of maintenance allowance, dower and dowry articles is pending in this Court in which the defendant has not paid even single penny to the plaintiff."
6. The grounds for the decree for dissolution of marriage available to a Muslim woman have been enumerated in Section 2 of the Dissolution of Muslim Marriages Act, 1939. Grounds "ii" and "iv" thereof read, as under:
"(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;
(iv) that the husband has failed to perform, without reasonable cause, his martial obligations for period of three years"
7. It is quite evident that among others, ground for non-payment of maintenance allowance for a period of two years and non-performance of conjugal rights for a period of three years entitles a wife to a decree for dissolution of marriage. The respondent/wife had specifically taken the said, grounds in her plaint and had produced evidence in this regard, which remained unrebutted, thus, she was entitled to the decree for dissolution of marriage on the basis of non-provision of maintenance allowance and non-performance of conjugal rights on the part of the petitioner/husband. Therefore, she was not obliged to return the benefits, derived by her from the petitioner/ husband on account of marriage.
8. It is also worth mentioning here that Section 10(4) of the West Pakistan Family Courts Act, 1964 is applicable to the dissolution of marriage on the basis of Khula and not to the dissolution of marriage on the grounds available to a wife under Section 2(ii) & (iv) of the Dissolution of Muslim Marriages Act, 1939. If any precedent in this regard is required, reliance may be placed on the case of Khalid Mahmood (PLD 2007
"11. The condition or the wife to restore to husband the dower received by her at the time of marriage, while seeking dissolution of marriage on the basis of Khula, according to provisos to sub-section (4) of Section 10 of Family Courts Act, is explicitly indicative of fact that this provision of law (brought through amendment vide Ordinance, 2002) is only meant to apply in suits in which dissolution of marriage is prayed for only on the basis of Khula. Further in such like situation the decree is passed straightway on failure of reconciliation. This proviso is not applicable, where the decree is not passed forthwith, on failure of reconciliation proceedings and where the dispute cannot be resolved without recording of evidence. Proviso was introduced to absolve the Court from following normal procedure of trial and to empower it pass a decree, on failure of reconciliation, without framing of issues and recording of evidence Word "and" used between the sentences, "If reconciliation fails, shall pass a decree for dissolution of marriage forthwith" and "shall also restore to husband the Haq Mehr" has been employed insightfully. This envisages that order for dissolution of marriage and restoration of Haq Mehr, was to be passed simultaneously; When question of dissolution of marriage is determined after proper trial then proviso, (ibid) is not applicable and Court can dissolve the marriage according to the circumstances of each case. The power of the Family Court to fix any consideration for dissolution of marriage, cannot be curtailed. The Court can dissolve the marriage on the basis of Khula, even without any compensation, when it finds that Khula, is being claimed due to the fault, on the part of husband."
9. A Full Bench of Peshawar High Court in the case of Mst. Saima Irum and three others (2006 MLD 83) has also expressed similar view. Relevant portion of the same is reproduced as under:
"6. Therefore, in our view, the word `Khula' should be construed as subject to the presumption that the legislature does not intent, by its general language, to subvert the established principles of Shariah on the subject and has left it for the Family Courts to decide whether to dissolve the marriage between the spouses on the ground of Khula or not. If from the plaint submitted by the wife, the only prayer of the wife is to dissolve her marriage on the ground of Khula, then the Family Court under added provisos to Sections 9 and 10 of the Family Courts Act, 1964 could dissolve the marriage between them on the ground of Khula and could also order for restoration of the Haq Mahr received by the wife in consideration of marriage, but if the claim of the wife is based on other grounds also, such as cruelty etc., then the Family Courts shall proceed with the case in accordance with law to determine by recording of evidence that the fault lies in which of the parties and which of the parties are entitled to it.
7. In this case, the learned Judge Family Court vide order dated 26.2.2004 has not only dissolved the marriage between the parties without specifying as to whether the marriage is being dissolved on the ground of Khula or otherwise, but a look at the plaint of the petitioner/wife would also reveal that she has not at all asked for `Khula' divorce and merely sought it on the grounds of cruelty, non-maintenance, non-payment of dower, desertion/ separation for more than one and a half year and failure upon respondent/husband to perform his marital obligation without any reasonable cause, reason and fault on the part of petitioner/wife. In such a situation, if the learned Judges of the Family Court are correct in dissolving the marriage between the spouses in the pre-trial conciliation proceedings by invoking the provisions of the added proviso to Section 10 of the Family Courts Act, 1964, they are wrong on the point of restoration of the dowered property, because neither the case would be proceeded only for adjudging the entitlement of the husband to the restoration of the Haq Mahr, nor the issue of dower would become redundant, but it would proceed for proper determination of the entitlement of both the parties to the receipt of dower even if the marriage is dissolved on the ground of Khula."
Reliance may also be placed in this regard, on the case of Abid Hussian (2006 SCMR 100).
10. In the light of above discussion, it is quite clear that when the respondent/wife had claimed decree for dissolution of marriage on the grounds enumerated in the plaint and she had succeeded in establishing the said grounds, the learned Judge Family Court was obliged, to pass a decree for dissolution of marriage on the basis of said, grounds and not on the ground of Khula and he did so, hence, the respondent/wife was not obliged to return the benefits, which she had received from the petitioner/husband.
11. In the light of above discussion, this petition has no merit, which fails and the same is hereby dismissed.
(R.A.) Petition dismissed
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