PLJ 2006
----S. 9(1)(b)--New added provision--No separate suit shall lie--Family Court to treat the written statement of wife in a suit for restitution of conjugal rights as plaint for dissolution of marriage--Suit for restitution of conjugal right was filed by petitioner availing of the opportunity and providing the benefit to wife--In her written statement she had clearly prayed for grant of decree for dissolution of marriage on basis of option of puberty or in alternate on the basis of Khula--High Court not in agreement with counsel because procedure prescribed in Ss. 7 & 8 had proceeded the amendment inserted in S. 9, therefore, no need to proceed with provision of Ss. 7 & 8 of the West Pakistan Family Courts Act, 1964--It is pertinent that after filing of written statement with prayer for grant of dissolution of marriage, plaintiff had not asked the Court to permit him to file reply to it--Even in High Court, no such claim had been raised--Held: Courts below has correctly proceeded with suit--Court had found no jurisdictional defect in judgment and decree passed by it--Petition dismissed. [Pp. 1027 & 1028] A & B
Sardar Muhammad Hussain Khan, Advocate for Petitioner.
Ch. Masood Ahmad Bajwa, Advocate for Respondent No. 2.
Date of hearing: 5.12.2005.
PLJ 2006 Lahore
Present: Sh. Hakim Ali, J.
AHMAD HASSAN--Petitioner
versus
JUDGE FAMILY COURT, SADIQABAD and another--Respondents
W.P. No. 3307 of 2005/BWP, heard on 5.12.2005.
Judgment
With the concurrence of learned counsels for the parties, this writ petition is being taken up and disposed of as a notice case.
2. A judgment and decree dated 14.6.2005, granting dissolution of marriage to defendant, in a suit for restitution of conjugal rights, instituted on 14.9.2004 by Ahmad Hassan, the writ petitioner, by learned Judge Family Court in Family Suit No. 17 of 2005 had been challenged through the instant writ petition.
3. Giving details of the case, learned counsel for Ahmad Hassan, the writ petitioner, submits that Ahmad Hassan, had filed a suit for restitution of conjugal rights against Mst. Naziran Bibi, Respondent No. 2, before the learned Judge Family Court. After the filing of the written statement, issues were framed and the parties had produced their evidence, but during the pendency of the suit, when Ahmad Hassan plaintiff had felt that Nikah performed with Mst. Naziran Bibi was being disputed, he decided to file a suit for jactitation of marriage against Mst. Naziran Bibi. Accordingly, he prayed for withdrawal of his suit for restitution of conjugal rights on 24.5.2005 but the learned Judge Family Court while dismissing his suit, passed a decree of dissolution of marriage in favour of Mst. Naziran Bibi on 14.6.2005. Learned counsel argues that the decree has been passed by treating the written statement as a plaint which could not be passed by the learned Judge Family Court, because Mst. Naziran Bibi, the defendant had not filed a separate suit for grant of decree for dissolution of marriage. It has been submitted by the learned counsel that the written statement, if it was to be considered as a plaint, then proceedings were to be reversed and conducted in accordance with Sections 7 and 8 of the West Pakistan Family Courts Act, 1964, and the petitioner should have been granted an opportunity of hearing afresh. In the suit of restitution of conjugal rights filed by the writ petitioner, which was withdrawn by him, the learned Judge Family Court had no jurisdiction/power to grant the impugned judgment and decree to wife of the petitioner.
4. Refuting the arguments, it has been replied by the learned counsel for Respondent No. 2 that no illegality/jurisdictional defect has been committed by the learned Judge Family Court upon the grant of the impugned decree as Section 9(1b) of the West Pakistan Family Courts Act, 1964 (inserted through Amendment brought in Section 9, in the year 2002) had conferred power upon learned Judge Family Court, to pass such a decree. Explaining the case of the aforesaid lady respondent Mst. Naziran Bibi, it has been stated by the learned counsel that in the written statement, Mst. Naziran Bibi had prayed for grant of decree on the basis of option of puberty or in the alternate a decree of dissolution of marriage on the ground of Khula. So, the decree was correctly passed by the learned Judge Family Court, after framing the issues and recording the evidence of the parties.
5. After considering the arguments of both the learned counsels, perusal of record of the case and keeping in view the amendment of law, which has been brought into Section 9 of the West Pakistan Family Court Act, 1964, on 1.10.2002, I have arrived at the conclusion that the learned Judge Family Court has rightly passed the decree in favour of Mst. Naziran Bibi, respondent. To appreciate the new amendment added in Section 9 of the West Pakistan Family Courts Act, 1964, it is reproduced as under:
"9. (1) Written statement.--
(1a)
(1b) A defendant wife may, in the written statement to a suit for restitution of conjugal rights, make a claim for dissolution of marriage including khula which shall be deemed as a plaint and no separate suit shall lie for it:
Provided that the proviso to sub-section (4) of Section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of khula.
"
6. This newly added provision has conferred powers upon the learned Judge Family Court to treat the written statement of a wife in a suit for restitution of conjugal rights as a plaint for dissolution of marriage and to pass the decree on such basis. In the aforesaid provision, it has clearly been directed that no separate suit shall lie. So, when the suit for restitution of conjugal right was filed by Ahmad Hassan, availing of that opportunity and benefit providing the section to a wife, Mst. Naziran Bibi in her written statement had clearly prayed for grant of decree for dissolution of marriage on the basis of option of puberty or in the alternate on the basis of Khula. I have noted that on the basis of this assertion, learned Judge Family Court had framed the issues on 14.12.2004 also. Issue No. 2 had clearly provided, as to whether the nikah of defendant with the plaintiff was performed in her minority? Issue No. 3 had directed the defendant to prove as to whether defendant had right of option of puberty to repudiate her nikah with the plaintiff? Issue No. 4 was most important which was couched in the following form:
"4. Whether she is entitled to get relief as prayed for by her in Paragraph No. 1 of written statement? OPD"
So, both the parties had become conscious of the dispute in issue with the framing of these issues and had known the version of each other which was pleaded by both the parties in their respective pleadings. Written statement was considered as a plaint by Ahmad Hassan, plaintiff, himself as he had tried his luck by producing his evidence which consisted of his own statement as PW. 1 and statement of Ghulam Nabi as PW.2. He had brought on record all his evidence which he had considered was required to contest the case of Mst. Naziran Bibi and to prove his own case. As DW.1, Mst. Naziran Bibi had also appeared to prove her case, therefore, both the parties had exhausted their efforts to prove their own versions. Accordingly, at the stage of trial, when evidence was complete and the plaintiff had felt that the case was being decided on merit, against him, he had prayed for withdrawal of his case. The prayer of Ahmad Hassan was accepted and his suit was dismissed, but it was rightly not accepted by the learned Judge Family Court with regard to dissolution of marriage, and treating the written statement as plaint under Section 9(1b) of West Pakistan Family Courts Act, 1964, learned Judge Family Court correctly passed the decree upon merit of the case. So far the objection of the learned counsel for the petitioner that procedure of Sections 7 and 8 was to be followed, I am not in agreement with learned counsel because procedure prescribed in Sections 7 and 8 has preceded the amendment inserted in Section 9, therefore there was no need to proceed with the provision of Sections 7 and 8 of the West Pakistan Family Courts Act, 1964. It is pertinent that after filing of written statement with prayer for grant of dissolution of marriage, plaintiff had not asked the Court to permit him to file reply to it. He had not laid any more claim to or in response to it. Even in this Court, no such claim has been raised. Accordingly, the learned Court below has correctly proceeded with the suit. I have found no jurisdictional defect in the judgment and decree passed by it. Therefore, the writ petition is dismissed, with no order as to costs.
(Rafaqat Ali Sohal) Petition dismissed.
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