Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----Ss. 9 & 10--Family Courts Act, (XXXV of 1964), S. 9(1)(6)--Suit for maintenance allowance and recovery of dower--Ex-parte decreed--Execution proceedings--Application for setting-aside of ex-parte degree--Allowed--Repeated opportunities were provided for filing of written statement--Right to file written statement was struck off--Sheer defiance of legal requirements--Petitioner was directed to file his written statement to main suit--Despite of having been provided with fair opportunities petitioner did not bother to file his requisite written statement--His right to file written statement was struck off which order still stands intact having not been assailed petitioner to get effects thereof undone and said order has attained finality in eye of law leaving Petitioner behind absolutely defenseless--Unwanted conduct of petitioner in sheer defiance of legal requirements, question of limitation referred cannot be compromised as well--Law helps vigilant and not indolent--Petitioner deliberately disappeared from scene despite having knowledge of proceedings of “former suit” and no valid justification is set out by him regarding his default even before High Court--Respondents No. 4 to 6 are children of Petitioner, he is legally, morally and religiously bound to maintain them at every cost and no exception can be taken to it--Petitioner has not been able to establish and substantiate necessities of minor his affordability and sources of his income otherwise than determined concurrently by Courts below--Family Court was not justified to grant maintenance allowance to respondent after effectiveness of divorce rather it should have been granted till Iddat period only as is evident from admitted Divorce Certificate issued by Secretary Union Council--Petition partially allowed.
[Pp. 988, 990, 992 & 993] A, B, C, D, E & F
2014 SCMR 1365 and 1999 SCMR 1326 ref.
Mr. Muhammad Mansoor Abbasi, ASC for Petitioner.
Ms. Jamila J Aslam, ASC alongwith Hafza Azid and Noor Imran, Advocates for Respondent No. 3.
Date of hearing: 12.1.2022.
PLJ 2022 Lahore 984
[Rawalpindi Bench Rawalpindi]
Present: Jawad Hassan, J.
Sahibzada HAROON ALI SYED--Petitioner
versus
ADDITIONAL DISTRICT JUDGE and others--Respondents
W.P. No. 3405 of 2019, decided on 12.1.2022.
Judgment
The petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) setting in challenge judgment dated 09.10.2019 passed by the Additional District Judge, Rawalpindi, whereby appeal filed against order dated 24.06.2019 of Judge Family Court, Rawalpindi was dismissed. The Petitioner has also assailed the validity of ex-parte judgments & decrees dated 14.09.2015 & 02.11.2017 respectively passed by the Family Court, Rawalpindi.
A. FACTS OF THE CASE
2. Briefly summed up facts of instant lis amongst parties are that the Respondents No. 3 to 6 first jointly instituted a suit (“former suit”) for recovery of maintenance allowance, dower and dowry articles against the petitioner having been decreed ex-parte vide judgment and decree dated 22.10.2013 (“former judgment & decree”) in terms that the Respondents No. 3 to 6 were held entitled to recover maintenance allowance @ Rs. 30,000/- each from the date of desertion as well as Respondent No. 3 was granted dowry articles mentioned at Sr.No. 1 to 7 of the list, but her claims for recovery of dower and gold ornaments were denied. Respondent No. 3 later filed independent separate suit (“other suit”) for recovery of dower on 15.09.2014 having also been decreed ex-parte vide judgment and decree dated 14.09.2015 (“other judgment & decree”). As per version of the petitioner, after falling in knowledge of execution proceedings of decrees mentioned above, he filed an application for setting-aside of “former judgment & decree”, when operation thereof was conditionally suspended subject to deposit of Rs. 50,000/- and eventually on 03.05.2017 said application was allowed to the effect of setting aside of “former judgment & decree”. However, in the event of petitioner’s failure despite of having been afforded with repeated opportunities, his right to file requisite written statement was struck off on 03.06.2017, he was proceeded against ex-parte due to his having skipped out of proceedings and, ultimately, “former suit” was again ex-parte decreed vide judgment and decree dated 02.11.2017 (“last judgment & decree”) in the manner that Respondents No. 3 to 6 were granted maintenance allowance @ Rs. 35000/- each w.e.f. 21.01.2013 with 10% annual increase. The Respondent No. 3 was held entitled to recover dowry articles mentioned at Sr.No. 1 to 7 of Exh.P2 while her claim of dower was turned down on account that matter had already been decided in “other suit” instituted following the divorce pronounced upon the Petitioner by the Respondent No. 1 after former judgment & decree were given field refusing the Respondent No. 3 same relief for want of missing elements i.e. death of or divorce from or second marriage of husband without permission of Arbitration Council of Union Council concerned. Events followed another application instituted by the petitioner seeking setting-aside of “last judgment & decree”, which his application was dismissed vide order dated 24.06.2019 as well as appeal against said order preferred before the Respondent No. 1 met with same fate as well vide impugned judgment dated 09.10.2019.
B. PETITIONER’S ARGUMENTS
3. Learned counsel for the Petitioner Mr. Muhammad Mansoor Abbasi, ASC inter alia contends that impugned ex-parte judgments and decrees are the result of mis-reading and non-reading of material available on record; that while passing the ex-parte judgments and decrees, the Courts below have not taken into consideration the financial status of the petitioner and the maintenance allowance awarded to the respondents is also exaggerative; that the Respondent No. 3 is not entitled for the maintenance allowance as she herself pronounced divorce to the petitioner on 16.01.2014 as per conditions settled in Nikah Nama hence she lost the status of being wedded wife and this fact has been concealed by her while getting ex-parte judgment and decree; that the impugned ex-parte judgments and decrees have been passed without considering stance of the Petitioner and providing an opportunity to present his written statement which is clear violation of Article 10-A of the Constitution .
C. RESPONDENTS ARGUMENTS
4. On the other hand, Ms. Jamila J Aslam, ASC learned counsel for the Respondent No. 3 to 6 has controverted the stance of learned counsel for the petitioner by supporting the impugned judgments and decrees passed by the Courts below pursuant to proper appreciation of the facts and circumstances of the case. Ms. Jamila J Aslam, ASC argues that the Courts below adopted all the modes of summoning the petitioner provided in law but the petitioner deliberately did not appear just to linger on the matter and to evade payment of maintenance allowance which has rightly been granted in favour of the respondents. She further argues that the petitioner has been provided a number of opportunities to file written statement which he remained fail to file and ultimately, he was proceeded against ex-parte hence it cannot be said that he has not been provided any opportunity or he has been condemned unheard.
5. Arguments heard. Record perused.
D. DETERMINATION BY THE COURT
6. From the arguments extended by learned counsel for the parties, the heart of controversy revolves around hard agitated objection of non-providing fair opportunity to the petitioner to pursue his case before the Courts below and the quantum of maintenance allowance awarded in favour of the respondents.
7. It evinces from the record that primarily “former suit” for recovery of maintenance allowance, dower, dowry articles and gold ornaments was brought on record by the Respondents No. 3 to 6 before the Family Court, Rawalpindi. The “former suit” was once decreed ex-parte vide “former judgment and decree” dated 22.10.2013 and the Respondent No. 4 to 6 were held entitled to recover maintenance allowance Rs. 30,000/- each and maintenance allowance of the Respondent No. 3, at the aforesaid rate, was granted till the expiry of Iddat in case of divorce. However, claim of the Respondent No. 3 in respect of gold ornament & deferred dower was refused on the ground of missing elements of divorce from, death of or second marriage of the petitioner. In order to meet with fruits of “former judgment and decree”, the Respondent No. 3 to 6 filed execution petition having later been transferred to Sialkot for execution of decree. Record reveals that during execution proceedings, the petitioner filed application on 08.11.2016 seeking setting-aside of “former judgment & decree”, consequent whereupon; first operation of “former judgment and decree” was suspended subject to cost of Rs. 50,000/- vide order dated 15.11.2016 and, in result of conceding statement of the learned counsel for the Respondents No. 3 to 6, eventually “former judgment & decree” were set-aside vide order dated 03.05.2017. Thereafter, the petitioner was desired to file written statement, but his failure in said regard eventuated in closure of his right to file written statement vide order dated 03.06.2017, due to his non-appearance in proceedings before the Family Court he was once again proceeded against ex-parte on 17.07.2017 and ultimately former suit was decreed ex-parte vide “last judgment & decree” dated 02.11.2017.
8. So far as the ground agitated by learned counsel for the petitioner for non-providing of fair opportunity during the proceedings before the Courts below and violation of Article 10-A of the Constitution is concerned, it is noted that although the impugned judgments and decrees were passed against the petitioner ex-parte yet record reveals that after passing of ex-parte “former judgment and decree” dated 22.10.2013, the petitioner first appeared before the Court with an application for setting-aside of said “former judgment and decree” on 15.11.2016, which was allowed later in terms of order dated 03.05.2017 and said ex-parte “former judgment and decree” was set-aside as well as the petitioner was directed to file his written statement to the main suit. It is observed that despite of having been provided with fair opportunities on 13.05.2017, 23.05.2017 & 03.06.2017, the petitioner did not bother to file his requisite written statement in defiance to Section 9(1) of The Family Courts Act, 1964 (the “Act”), as such, his right to file written statement was struck off on 03.06.2017, which order still stands intact having not been assailed or set in challenge by petitioner to get effects thereof undone and said order thus has attained finality in the eye of law leaving the Petitioner behind absolutely defenseless. Situation detailed above manifest that more than enough time was afforded to the Petitioner to come up with task required by Court of law, but he himself waived his rights thereby parting ways with proceedings of “former suit”. Moreover, without first tackling said order dated 03.06.2017 to get effects thereof undone, mere agitating for setting aside impugned ex-parte proceedings and “last judgment & decree” was of no use for Petitioner’s cause. Not challenging order mentioned above striking off the Petitioner’s right to file his written statement leaves past least chances for cause & case of the petitioner. Reliance in said regard can be placed upon esteemed guideline laid in case titled “Muhammad Tabish Naeem Khan versus Additional District Judge, Lahore and others” (2014 SCMR 1365) wherein the Hon’ble Supreme Court of Pakistan has held that:
“3 … suffice it to say that the Family Court is the quasi judicial forum, which can draw and follow its own procedure provided such procedure should not be against the principles of fair hearing and trial, thus if a defendant of a family matter, who is duly served; and especially the one who appears and disappears and also does not file his written statement within the time allowed to him by the Court, the Court shall have the inherent power and ample power to proceed ex-parte against him, to strike off the defence and to pass an ex-parte decree in line with the principles as are enunciated by the Civil Procedure Code. In any case, such order (striking off defence) cannot be said, treated or deemed to be void, which should be ignored as nullity in the eyes of the law as argued by the learned counsel for the petitioner. If the petitioner was aggrieved of the order, he should have either got it set aside by filing an application before the Family Court or by challenging the same in appeal, which admittedly was not so done.”
9. To add further frustration for aspiration of law, after first appearing in proceedings on 03.05.2017 and closing down of his right to file written statement on 03.06.2017, Petitioner jumped all extents of neglects and parted ways with proceedings for not pursuing “former suit” on 13.06.2017 & 03.07.2017, resultantly, he was proceeded against ex-parte vide order dated 17.07.2017 and “last judgment & decree” were given field on 02.11.2017. The Petitioner still carried ahead with an absolute mute & silent conduct till introducing on 06.10.2018 another application seeking setting-aside of ex-parte “last judgment & decree” dated 02.11.2017, as such, the Petitioner consumed considerable time & waited for more than mighty eleven (11) months for making said application, which under umbrella of Section 9(6) of the Act he was allowed and bound to file within thirty days of passing ex-parte “last judgment & decree”. The Petitioner by no means has brought on record any good cause and justifiable reason of his long standing absence from scenario. Esteemed guideline is laid in case titled “Muhammad Arif versus Uzma Afzal and others” (2011 SCMR 374) wherein it has held as under:
“5. There is no cavil to the proposition that the “conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim “he who seeks equity must do equity”. Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law, especially of the law under which he is claiming entitlement ….”
In light of peculiar circumstances of controversy in hand highlighting absolutely unwanted conduct of petitioner in sheer defiance of legal requirements, question of limitation referred above cannot be compromised as well. It is well settled principle that law helps the vigilant and not the indolent. Reliance is placed on “Aftab Iqbal Khan Khichi and another versus Messrs United Distributors Pakistan Ltd. Karachi” (1999 SCMR 1326).
10. In this view of the matter, it is quite clear that the Petitioner was granted fair opportunities to file written statement and pursue his case before the Court below, but he himself deliberately disappeared from scene despite having knowledge of the proceedings of “former suit” and no valid justification is set out by him regarding his said default even before this Court. Hence this ground is turned down.
11. It would also be beneficial to mention here that before enactment of the Act, female litigants had to wait for years to meet with final reliefs i.e. recovery of dower, maintenance, other ancillary matters and particularly, in cases of dissolution of marriage. By the time of obtaining decree, majority of the wives used to become grey haired much beyond the remarriage-able age, beside incurring heavy expenses on getting the relief with regard to a meager amount of maintenance, dower etc. In the judgment reported as “Mst. Yasmin Bibi versus Muhammad Ghazanfar Khan and others (PLD 2016 SC 613), the Hon’ble Supreme Court of Pakistan has elaborated the preamble of the Act and also discussed various sections thereof. Relevant portions of Paragraph 10 and 12 of the said judgment are reproduced hereunder for ease of the matter:
“10. It was in the above background that the Legislature felt essential to provide for establishment of Family Courts to deal with all matrimonial disputes, mentioned above, in an expeditious manner, curtailing the life of litigation in such cases. To curb and suppress the mischief of delaying tactics on the part of unscrupulous husbands, several amendments were introduced to the Family Court Act, 1964. Some amendments bearing striking features may be cited below:
S.12-A. Case to be disposed of within a specified period. A Family Court shall dispose of a case, including a suit for dissolution of marriage, within a period of six months from the date of institution:
Provided that where a case is not disposed of within six months either party shall have a right to make an application to the High Court for necessary direction as the High Court may deem fit.
S. 17-A. This newly enacted provision was with the object to curb the mischief of delaying tactics and the Family Court was brought under obligation to pass interim order, directing the husband to pay interim maintenance allowance to the children and the wife after filing written statement or at any stage thereafter.
The provision of S.21-A was also added to the Family Court Act, conferring power upon Family Court to preserve and protect any property, which is in dispute in a suit or any other property of a party to the suit for the future satisfaction of the decree.”
To further accelerate and expedite the disposal of such cases, the District Appeal Court and the High Court, orders staying the proceedings before the Family Court, shall cease to be effective on expiring of thirty days time. Again, under Section 14, through amendment, it was made mandatory for the Court of Appeal to decide the case positively within four months.
12. Keeping in view the agonies of the parties, particularly the wife, in matrimonial disputes to curtail the mischief of delay and to shorten the life of litigation in such cases, the Law and Justice Commission of Pakistan recommended to the Federal Government and all the Provincial Governments to establish Family Courts in each District and Tehsil Headquarter, which shall be preferably presided over by a female Judge so that the wives who are not well acquainted and familiar with the Court proceedings are provided maximum protection and friendly environments.” (underline is mine)
From the above-quoted paragraphs of the judgment passed by the Hon’ble Supreme Court of Pakistan in Mst. Yasmin Bibi Case (supra), it is manifest that certain amendments were made in various sections of the Act, the aim and object of which was to address and minimize miseries & plight of the wives seeking relief through the obsolete law then in vogue, as such, not only all matrimonial disputes were brought under one and the same umbrella of the Family Court but such amendments also provided for the target dates for deciding the relevant lis for both, the Family Court and the Lower Appellate Court. Deviation from and violation of the mandatory provisions of the Act, would amount to frustrate and reverse the efficacious remedies available under the new scheme of law.
12. Another ground with regard to quantum of maintenance allowance of the respondents is agitated by the petitioner before this Court. So far as maintenance allowance granted to the Respondents No. 4 to 6 is concerned, it evinces from the judgment and decree that the learned Judge Family Court after taking into consideration oral as well as documentary evidence on record fixed the quantum of maintenance allowance keeping in view the financial status of the petitioner. Furthermore, the petitioner has not produced any documentary proof/evidence in order to support his version. Keeping in view the prevailing inflation, the quantum of maintenance allowance fixed by learned trial Court cannot be termed as harsh as it is hardly sufficient to meet the needs of daily life of the Respondents No. 4 to 6. It is an admitted fact that Respondents No. 4 to 6 are children of the petitioner, therefore, he is legally, morally and religiously bound to maintain them at every cost and no exception can be taken to it. The Petitioner has not been able to establish and substantiate necessities of minor Respondents No. 4 to 6, his affordability and sources of his income otherwise than determined concurrently by Courts below.
13. In respect to grant of maintenance allowance of the Respondent No. 3, learned counsel for the Petitioner has strongly agitated that the Courts below have failed to consider the fact of divorce pronounced by the Respondent No. 3 to the Petitioner. According to ex-parte “former judgment and decree” dated 22.10.2013, the claim of Respondent No. 3 with regard to dower was refused on score that she at that relevant time was still wedded wife of the Petitioner, as such, she was granted maintenance allowance @
Rs. 30,000/- from the date of desertion till the expiry of iddat in case of divorce. Bare perusal of Nikah Nama reveals that the parties have delegated the right of divorce as per Columns No. 18 & 19 which the Respondent No. 3 invoked and consequently, she pronounced divorce upon the Petitioner vide admitted Divorced Deed dated 16.01.2014,
