PLJ 2010
----S. 10--(Family Courts (Amendment) Ordinance, (LV of 2002)--Proviso was added--Power to pass a decree for dissolution of marriage forthwith if reconciliation fails--Held: Family Court is not obligated to follow the sequential order given in S. 10 of Family Courts Act, in the event of failure of reconciliation, where a decree for dissolution of marriage is sought on the ground of Khula. [P. 106] A
----S. 10(4)--Proviso--Jurisdiction of Family Court--Khula--No scope was left to live together--Validity--S. 10(4) of Family Courts Act, has conferred powers and jurisdiction to dissolve a marriage on the basis of khula, if despite efforts made by it for reconciliation no scope was left for spouses to live together. [P. 107] B
----Scope & object of--Provision was enacted to avoid unnecessary delays which occurred in the past when suits for dissolution of marriage were tried like ordinary civil suits and it took years for such suits to reach a conclusion causing hardship and misery for the woman who was dragged through endless litigation involving a union that had practicals come to an end. [P. 107] C
Khula--
----Dissolution of marriage--Jurisdiction of Family Courts--To suppress such mischief the legislature had enacted S. 10(4) conferring jurisdiction on Family Courts to dissolve the marriage forthwith on the basis of Khula, if despite efforts made for reconciliation the wife refused to reconcile and go back to her husband. [P. 107] D
PLD 1984 SC 549, PLD 1983 Lah. 549, 1999 YLR 875, 2004 YLR 3090, 2005 CLC 909, 2005 YLR 1648, 2005 CLC 1844 & PLD 2007 Lah. 425, ref.
----S. 10(4)--Re-conciliation efforts between the parties had failed--Family Court proceeded to pass an order for dissolution of marriage on the basis of Khula--Validity--Family Court, correctly exercised his jurisdiction to decree the suit u/S. 10(4) of Family Courts Act, on the basis of Khula--Petitioner had not mentioned any thing in the petition which might even remotely suggest, either that there was any defect in pre-trial reconciliation proceedings or that such reconciliation efforts had not failed--Finding of trial Court was unexceptionable and no interference was called for. [P. 107] E
Maintenance--
----Interim maintenance for minor child--Challenge to--Grounds of--Petitioner was unable to pay the amount of Rs. 1500/- per month as his monthly income was only of Rs. 5000/--Validity--Held: Hardly furnishes any justification to withhold payment of maintenance allowance for a minor child--There was sufficient material on record to warrant a tentative assessment of the petitioner's income by Family Court and fixation of tentative maintenance allowance--This has fairly and reasonably been done by Courts below after due application of mind, considering the basic needs of a minor child--Petition was dismissed. [P. 107] F
Mr. Muhammad Sharif Chohan, Advocate for Petitioner.
Date of hearing: 1.10.2009.
PLJ 2010 Lahore 104
Present: Ijaz-ul-Ahsan, J.
SHAKEEL AHMED--Petitioner
versus
JUDGE FAMILY COURT, LAHORE and 2 others--Respondents
W.P. No. 18781 of 2009, decided on 1.10.2009.
Order
This petition arises out of an order dated 30.6.2009 passed by the learned Judge Family Court,
2. Arooj Lateef, Respondent No. 2 herein, was married to the petitioner on 21.10.2007. Differences arose shortly after marriage between the spouses. Arooj Lateef, therefore, filed two suits against the petitioner for dissolution of marriage and maintenance, dowry articles and birth expenses of Rs. 10.000/-. Parties were summoned by the learned Family Judge. The petitioner filed written reply to both the suits. He took legal as well as factual objections/defences in his written replies.
3. On 30.6.2009 Arooj Latif made a statement before the learned Judge Family Court that she did not want reconciliation with the petitioner and that her suit for dissolution of marriage should be decreed on the basis of Khula. In view of the statement of the plaintiff and having satisfied himself that re-conciliation efforts between the parties had failed, the Judge Family Court proceeded to pass an order for dissolution of marriage on the basis of Khula in terms of Section 10(4) of the Family Courts Act, 1964.
4. In the other suit for maintenance etc., the learned Judge Family Court passed an order dated 30.6.2009. He fixed tentative interim maintenance allowance for the minor daughter of the parties in the sum of Rs.1500/- per month to be paid by the defendant before 14th day of every month. Although the petitioner has challenged both the aforesaid orders through this petition, the learned counsel did not address any arguments regarding the order relating to fixation of interim maintenance allowance. This Court is, therefore, justified in concluding that he has abandoned that challenge.
5. As far as the order dated 30.6.2009 is concerned, whereby decree for dissolution of marriage was passed, the learned counsel has argued that the order is illegal. According to him it was passed without providing to the petitioner an opportunity of being heard. The learned counsel has further argued that the provisions of Section 10 of the Family Courts Act, 1964 are mandatory and after a pre-trial hearing as ordained by sub-section (1) and, if necessary, after going through the procedures provided in sub-sections (2) and (3), the Court is required to frame issues and fix a date for recording of evidence. The learned counsel contends that the aforesaid mandatory requirements have not been fulfilled. Hence the order dated 30.6.2009 whereby dissolution of has been ordered is illegal and is liable to be set aside.
6. I have considered the arguments advanced by the learned counsel for the petitioner. I do not find myself in agreement with his interpretation of Section 10 of the Family Courts Act, 1964 and its proviso. The proviso to Section 10 of the West Pakistan Family Courts Act, 1964, was added by the Family Courts (Amendment) Ordinance (
7. The proviso to sub-section (4) of Section 10 of West Pakistan Family Courts Act 1964 has conferred powers and jurisdiction on Family Courts to dissolve a marriage on the basis of "Khula" if despite efforts made by it for reconciliation no scope was left for spouses to live together. Proviso to Section 10(4) is couched in such language, containing a non-obstente clause giving wide power to the Family Court to dissolve the marriage when facts of the case would permit such course. The provision was enacted to avoid unnecessary delays which occurred in the past when suits for dissolution of marriage were tried like ordinary civil suits and it took years for such suits to reach a conclusion causing hardship and misery for the woman who was dragged through endless litigation involving a union that had practically come to an end. To suppress such mischief the legislature had enacted this beneficial provision conferring jurisdiction on Family Courts to dissolve the marriage forthwith on the basis of "Khula" if despite efforts made for reconciliation the wife refused to reconcile and go back to her husband. In this regard reference can usefully be made to PLD 1984 SC 549, PLD 1983 Lahore 549, 1999 YLR 875, 2004 YLR 3090, 2005 CLC 909, 2005 YLR 1648, 2005 CLC 1844 and PLD 2007 Lahore 425. In all the aforesaid judgments the power of the Family Court to pass a decree for dissolution of marriage, forthwith, on failure of conciliation proceedings has been affirmed. It is evident from a perusal of the order dated 30.6.2009 as well as the statement of Arooj Lateef that pre-trial reconciliation efforts did not succeed. The learned Judge Family Court, therefore, correctly exercised his jurisdiction to decree the suit under Section 10(4) of the Family Courts Act, 1964 on the basis of "Khula". The petitioner has not mentioned any thing in the petition which may even remotely suggest either, that there was any defect in the pre-trial reconciliation proceedings or that such reconciliation efforts had not failed. The finding of the trial Court is unexceptionable and no interference is called for.
8. As far as the order relating to interim maintenance for the minor child is concerned, the only grounds mentioned in the petition to challenge the same are that the petitioner is unable to pay the said amount as his monthly income allegedly is only Rs. 5,000/- and that the order in Question will strain his financial resources. In the absence of any material on record to support this position, to my mind, this hardly furnishes any justification to withhold payment of maintenance allowance for a minor child. There is sufficient material on record to warrant a tentative assessment of the petitioner's income by the learned Judge Family Court and fixation of tentative maintenance allowance. This has fairly and reasonably been done by the learned Courts below after due application of mind; considering the basic needs of a minor child. Even otherwise, as stated above, the learned counsel has not addressed any arguments against the said order and has skirted repeated inquiries from this Court as to whether or not the said amount is being paid by the petitioner.
9. In view of what has been discussed above, I do not find any flaw or jurisdictional error in the findings of the learned lower Courts. There is no merit in the petition, it is, therefore, dismissed in limine.
(R.A.) Petition dismissed.
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