----Ss. 9(1)(b) & 10(4)--Suit for restituion of conjugal rights was filed by petitioner--Respondent filed written statement and by way of sets off claimed a decree for dissolution of marriage

 PLJ 2007 Lahore 671 

Family Courts Act 1964—

 

----Ss. 9(1)(b) & 10(4)--Suit for restituion of conjugal rights was filed by petitioner--Respondent filed written statement and by way of sets off claimed a decree for dissolution of marriage--Marriage was dissolved--Where no earlier suit for restitution of conjugal rights is pending there is no such condition in Section 9(1)(b) of the Family Courts Act which enables a wife to claim dissolution of marriage by way of set off in a suit for restitution of conjugal rights filed by husband--Proviso to S. 9(1) of Family Courts that S. 10(4) (Proviso) would apply where a decree for dissolution of marriage is to be passed--Petition dismissed.

      [P. 672] A & B

Mr. Mazhar Masood Khan, Advocate for Petitioner.

Date of hearing: 25.1.2007.

 PLJ 2007 Lahore 671
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
SHAUKAT HAYAT--Petitioner
Versus
JUDGE FAMILY COURT, FATEH JANG DISTT. ATTOCK
and another--Respondents
Writ Petition No. 162 of 2007, decided on 25.1.2007.

Order

On 18-2-2006, petitioner filed a suit for restitution of conjugal rights against Respondent No. 2. She filed a written statement and by way of set off claimed a decree for dissolution of marriage on the ground of Khula. The efforts for reconciliation between the parties were made which failed. The statement of the lady was recorded and the marriage was dissolved. She gave up her claim to dower and maintenance etc.

2.  Learned counsel for the petitioner argues that since a suit for dissolution  of  marriage already filed by the respondent on 5-1-2006 was pending, a set off could not have been claimed. He refers to Section 9(1) (a) of the Family Courts Act, 1964. Further contention is that the provisions of Section 10(4) are applicable only to a regular suit for dissolution of marriage and not to the set off.

3.  I have given some thoughts to the said contention and found the same to be without any force. The provision being relied upon by him applies to a claim of set off by a husband in a suit of his wife for dissolution of marriage wherein it has been stated that the set off can be claimed where no earlier suit for restitution of conjugal rights is pending. However, there is no such condition in Section 9(1)(b) of the Family Courts Act, which enables a wife to claim dissolution of marriage by way of set off in a suit for restitution of conjugal rights filed by the husband. The proviso to Section 9(1) of the said Act lays down that Section 10(4) (proviso) shall apply where a decree for dissolution of marriage is to be passed in said circumstances. Writ petition is accordingly dismissed in limine.

(M.S.)      Petition dismissed.