PLJ 2004 Lahore 183
Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)--
—S. 2(v)(c)-Physical weakness of husband as a ground for dissolution of
marriage taken by wife is not provided anywhere as a ground—Physical
weakness does not reflect impotency, therefore, ground of impotency as
given in S. 2(v)(c) of the Dissolution of Muslim Marriages Act 1939, was
not available to wife and marriage of spouses could not dissolved on such
ground. [P. 186] B
(i) Family Courts Act, 1964 (XXXV of 1964)--
—S. 5 & Sched.--Dissolution of marriage on the ground of &/iM/a-Plaintiff in her plaint had although alleged cruelty and gave evidence to support such claim but she could not mention any specific habit of husband, or any incident in which he gave her physical or mental torture—Mere fact that wife stated that she was not prepared at all to live with her husband would not be sufficient to dissolve marriage on the ground of khula therefore, in such case she is bound to bring on record some reasons for hatred developed in her mind-Reason for hatred can however, be collected from pleadings of parties, evidence on record and attentive hearing of parties by the Court itself during reconciliation proceedings.
[P. 186] A
1985 CLC 2539; NLR 1986 Civil.87 ref.
Mr. M.D. Tahir, Advocate for Petitioner. Date of hearing : 5.6.2003.
PLJ 2004 Lahore 183
Present: MIAN MUHAMMAD JAHANGIER, J. ZULFIQAR ALI-Petitioner
versus
JUDGE FAMILY COURT-Respondent W.P. No. 11625 of 2002, decided on 5.6.2003. (i)
ORDER
By this order, this Writ Petition Bearing No. 11625-2002 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed by Zulfiqar Ali son of Bashir Ahmad, Caste Ansari, resident of Kot Doaba, Tehsil Shakar Garh, District Narowal, petitioner, against the Judgment passed by the Judge Family Court, Shakkargarh, District Narowal dated 3.4.2002, is being disposed of, whereby the marriage of the petitioner with Respondent No. 2 was dissolved on the basis of Khula and the suit filed by the said respondent was decreed.
Respondent No. 2 did not appear despite efforts therefore, she was proceeded against exparte vide order dated 26.5.2003 passed by this Court.
2. Some relevant facts for the disposal of this petition are that
Zulfiqar Ahmad petitioner was married with Mst. Nasim Akhtar respondent
on 15.4.1999. Mst. Nasim Akhtar filed the suit for dissolution of marriage
before the learned Judge Family Court at Sheik'hupura alleging therein that
the conduct of the defendant (present petitioner) was never cordial towards
her but despite this she remained in the house of the defendant for two
years; that the defendant was physically weak and this fact was not told to
her earlier which amounts to fraud played with her and since the defendant
(present petitioner) is a vagabond, therefore, she has developed hatred
against him and not prepared to live with him. She further alleged that
about two or three months earlier the defendant himself turned her out from
the house and now she is entitled for divorce on the basis of Khula and that
no maintenance was paid to her, therefore she has abhorrence against the
petitioner. This suit was filed on 31.7.2001 before the learned Judge Family
Court.
3. The allegations as mentioned above were denied by Zulfiqar Ali
petitioner/defendant in his written statement. He offered that the learned
Family Court might get him medically examined and alleged that the mother
of the plaintiff did not allow her to live with him. He had also filed a suit for
restitution of conjugal rights.
4. Mst. Nasim Akhtar also filed a suit for recovery of dowry articles.
Therefore, the consolidated issues were framed which were as under :--
1. Whether a decree of dissolution of marriage could be passed in
favour of the plaintiff under the facts and circumstances
mentioned in the plaint including the ground of Khula ? If so on
what terms ? OPP.
2. Whether the plaintiff is entitled for the recovery of her dowry
items or in alternative its price of sum of Rs. 50,000/~? OPP.
3. Whether defendant Zulfiqar Ahmed (plaintiff) of family case
No. 111/2001 is entitled to get a decree or restitution of
conjugal rights as prayed for by him ? OPD.
4. Whether the parties have no cause of action and locus standi
against each other ? OPD parties.
5. Whether parties are estopped by their words and conduct to file
their respective suits ? OP Parties Relief.
5. Evidence of the parties was recorded. Mst. Nasim Akhtar (PW-1)
Abdul Ghafoor (PW-2) had appeared for Nasim Akhtar, plaintiff. Zulfiqar Ali
(DW-1) Nazir Ahmad (DW-2) and Muhammad Nasar (DW-3) appeared for
Zulfiqar Ali (defendant).
6. While disposing of Issue No. 1, the evidence of the parties was
examined and it was observed that it was noticeable that although the
plaintiff had come to seek Khula from the defendant on the ground of hatred,
etc. but she and her witnesses had not stated any reason for such a hatred
against the defendant and when the plaintiff alleged that she was tortured by
the defendant her witness had not supported her on this point and even no
other documentary evidence was produced to prove this fact.
7. Anyhow, right of separation however, has been recognized in
Islam, though it has considered not to be a good thing. Therefore, when the
plaintiff is adamant in claiming divorce on the basis of Khula^ their peaceful
living in harmony is out of question. As a consequence of it, the issue was
decided against the petitioner/defendant and the marriage was dissolved on
the basis of Khula subject to payment of an amount of Rs. 10,000/- as Zar-i-'Khula vide Judgment dated 3.4.2002.
8. Learned Counsel for the petitioner/defendant argued that the
suit for dissolution of marriage had been decreed on the ground of Khula,
when the respondent/plaintiff had failed to prove all the grounds, whereas
the solemn duty of the Court is to collect facts and circumstances to arrive at
judicious satisfaction to ascertain the entitlement of the wife to Khula, but
no such exercise was under taken by the learned Family Court, even no
reason was advanced by the learned Family Court in the Judgment that as
to why it was not possible for the parties to live together as husband and
wife. He further argued that so far as the responsibility of the petitioner was
concerned, he performed all his duties, therefore, no ground was existed to
grant Khula to the respondent as the wife cannot make her own conduct, the
ground of dissolution of marriage on the basis of Khula. He referred to the
case titled as Dr. Akhlaq versus Kishwar Sultana, reported in PLD 1983 S.C.
169 in support of his arguments.
8A. There is no representation on behalf of Mst, Nasim Akhtar, respondent who was proceeded against ex-parte vide order of this Court dated 26.5.2003. Anyhow, the point for examination is as to whether the learned Judge Family Court has dissolved the marriage-tie on the basis of
Khula with any sound reason and that as to whether the availability of some sound material/facts and circumstances on the record is essential for satisfaction of judicious conscience of the Court or that without justification the Family Court is authorised to exercise its discretion without bringing on record any plausible reason. Before examining the above mentioned propositions it may be mentioned here that the facts and circumstances of each case differ from the other one, but mere fact that a wife states that she is not prepared at all to live with her husband will not be sufficient to dissolve the marriage on ground of Khula, therefore, in each case she is bound to bring on record some reasons .for hatred developed in her mind. The reason for hatred may be collected from the pleadings of the parties,
i evidence and attentive hearing of the parties by the Judge himself during
I reconciliation proceedings.
9. Now here in the instant case Mst. Nasim Akhtar respondent alleged in the plaint and also in the evidence that the conduct of her husband was cruel towards her but she could not mention any specific habit of her [husband, or any incident in which he gave her physical or mental torture. The next reason which she advanced was that her husband was physically weak and this fact was not told to her earlier a's such fraud was committed with her.
The grounds for dissolution of marriage have been expressly provided in Sec. 2 of Dissolution of Muslim Marriages Act, 1939, out of which the ground in Clause-'V of the above mentioned section is as under :--
(v) that the husband was impotent at the time of marriage and continues to be so.
While proviso 'C' to Section-2 of the Act ibid is as under :--
(a) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground."
It is obvious that the ground for dissolution of marriage under this head is the impotency of the husband. The physical weakness is not provided anywhere as a ground. Impotency means that the husband is not in a position to perform the sexual intercourse while the physical weakness does not reflect on impotency. In this way the ground of impotency as given in Clause-'c' was not available to Mst. Nasim Akhtar respondent, despite this the petitioner offered in his written statement and also in evidence that he may be medically examined, but despite this no offer was made by the Court.
Even otherwise it was no ground. Then the question arises as to why such a ground was taken by the wife of the petitioner. Certainly it is due to defective drafting of the pleadings on the part of the counsel who prepared the plaint or any such ground may reflect on the character of the woman, because how she can claim that before performance of marriage her parents or some body else or any family member should ensure that her husband is physically strong.
The contents of Para No. 2 of the plaint are not a tradition in our Muslim Culture and Society, what to speak of physical weakness, it has been seen in our society that a woman does not declare even after marriage for many years that her husband is an impotent person and the woman lives in the house of her husband like nobel lady and for this reason it has been observed above that the learned Family Court must collect the reasons for satisfaction of the Judicious Conscience of the Court that there are grounds for dissolving the marriage on the basis of Khula otherwise if the discretion is exercised with the close eyes, this practice on the part of the Family Courts shall encourage the stereotype pleadings written by the experts and tutored dislogue to express the hatred against the husband, at least such like a lady reflects on her character indirectly and also because of her negative conduct she should not be entitled for dissolution of marriage on the basis of Khula.
The exercise of discretion would require to see the welfare of the minors and many other things and last of all only one thing which is essentially required is the satisfaction of the judicious Conscience of the Court. My views are supported by the cases reported in, Jindan versus Rahim Bakhsh, 1985 CLC 2539 (
10. Keeping in view the circumstances prevailing in the Family Courts i.e. on the basis of my experience as a Judge for the last twenty three years I am inclined to write here that the disposal of the family matters as given in schedule attached to Family Courts Act, 1964 such as :--
SCHEDULE PART-I
(1) Dissolution of marriage, including Khula, (2) Dower, (3) Maintenance, (4) Restitution of Conjugal Rights, (5) Custody of Children "and the visitation right of parents to meet them, (6) Guardianship, (7) Jactitation of Marriage, (8) Dowry, and (9) Personal Property and belongings of a wife, is such exercise which is unnecessarily attached with the Civil Courts, involving inconvenience and discomfort process faced by the litigants of both sides, otherwise, such like matters can be easily disposed of by suitable and
selected Imam of the Mosque of a Union Council who performs the nikah. If he is competent to solemnize the marriage then he is equally competent to dissolve the same and also to dispose of the other connected matters even including the custody of the minors. He may be paid honorarium for his services which in other words would provide financial assistance to the poor fellow. Even otherwise this exercise would involve the religious scholars in performing duties and their completion while sitting in the Mosque of the Union Councils. This exercise would eliminate the evils, moral corruption and difficulties which are faced by the ladies during their appearance in the Courts. Moreover, in this way there would be no need of any lengthy legal work and research on family laws as the Imam of the Mosque would decide the family cases in the light of the principles of Holy Quran, Sunnah and Fiqah. Anyhow this concept may be deeply examined by the law making authorities, therefore, copy of this order shall be sent to Federal Ministry of Law and Parliamentary Affairs Department, through proper channel.
11. Since the observation of the learned trial Court in the instant
case that the respondent is not willing to live with the petitioner/defendant
at any cost and that peaceful living in harmony is out of question between
the parties, therefore, the Judgment passed by the.Judge Family Court
dated 3.4.2002 is maintained, however, with this direction that in stead of
Rs. 10,000/- the amount of Zar-i-Khula to be paid-by the respondent to the
petitioner/defendant, would be Rs. 40,000/- and in future the principles as
discussed above shall be followed for judicious satisfaction of conscience of
the Court.
This petition stands disposed of.
(T.A.F.) Order accordingly.
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