PLJ 2009 Lahore
415
Present: S. Ali Hassan Rizvi, J.
Syed SIKANDAR ALI SHAH--Petitioner
versus
Mst. OMAIRA ANWAR and 4 others--Respondents
W.P. No. 3309 of 2009, decided on 20.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Family Courts Act, 1964--S.
10(4)--Constitutional petition--Writ petition was filed through real
mother--Suit for dissolution of marriage on the basis of khula was
decreed--Case was remanded in appeal--Jurisdiction--Only order of Family Court
which could conceivably be challenged--Petitioner was insane and confined to
Distt. jail--He should have been summoned at pre-trial stage to record statement
before passing a decree--Petitioner was not granted an opportunity to
cross-examine--Validity--Notwithstanding any decision or judgment of any Court
or tribunal, the family Court in a suit for dissolution of marriage, if
reconciliation fails, shall pass a decree for dissolution of marriage--Held: If
the petitioner was indeed insane and suffered from schizophrenia, it passes my
comprehension as to what would have been the use of calling him from
jail--Question of jurisdiction was irrelevant for purposes of dissolution of
marriage and decree for dissolution was sound both on law and facts--Petition
appears to have been filed in a circuitous manner, to take a chance and to make
a cobweb of litigation--Further held: Petitioner has no justifiable cause to be
examined in extra ordinary jurisdiction of High Court.
[Pp. 417 &
418] A & C
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Constitution of Pakistan, 1973, Art.
199--Constitutional petition--No limitation to file writ petition--Question of
laches--Suit for dissolution of marriage on basis of Khula--Case was remanded
in appeal--Order passed by Family Court which was sough to be challenged in
writ petition--Held: No limitation to file a writ petition albeit question of
laches would be relevant--Impugned order was dated 15.9.2008 whereas the writ
petition was filed on 19.2.2009--Petitioner had challenged the order dated
6.9.2008 before Appellate Court and he was successful vide judgment dated
14.10.2008 passed by Distt. Judge--Order dated 15.9.2008 to all intents and
purposes was quite lawful and with jurisdiction--Proceedings before chairman,
arbitration council would also be quite within the mandate of the authority. [P. 417] B
Syed Muhammad Kaleem Ahmad Khurshid, Advocate for Petitioner.
Date of hearing: 20.2.2009.
Order
In this writ petition filed by Syed Sikandar Ali Shah
through his real mother Mst. Salma Bokhari, following prayer has been made:
"It is, therefore, respectfully prayed that the
order passed by Respondent No. 4 as well as the subsequent proceedings before
the Respondent No. 5 may please be declared to be without lawful authority and
of no legal effect and pending the decision of the writ petition, the operation
of the impugned order may please be suspended."
2. In the prayer
clause reproduced above, it has not been shown as to which order of learned
Family Court (MS Abhar Gul) was sought to be set aside. I find that she had
passed an order on 15.9.2008, decreeing the suit for dissolution of marriage on
the basis of Khula in consideration of dower. The relevant order is Annexure-G
to the writ petition. The other order passed by the same learned Family Judge
was of 6.9.2008, which was challenged in appeal. Mr. Zafar Ullah Tarar, the
learned Addl. District Judge while accepting the appeal set aside the order
dated 6.9.2008 and remanded the case to the learned trial Court vide judgment
dated 14.10.2008 passing certain directions. It is, therefore, evident that the
order dated 6.9.2008 is not in the field. The only order of the learned Judge
Family Court which could conceivably be challenged, was of 15.9.2008 (Annex-G).
This impression is further strengthened from the second part of the prayer that
the subsequent proceedings pending before the Chairman, Arbitration Council
(Respondent No. 5) be declared to be without lawful authority.
3. I, therefore,
find that it was the order dated 15.9.2008, passed by the learned Judge Family
Court which was sought to be challenged in this writ petition.
4. The grounds
taken in support of the writ petition was that the petitioner Sikandar Ali was
insane and confined to District Jail, Faisalabad; that he should have been
summoned at pre-trial stage to record his statement before passing a decree for
dissolution of marriage on 15.9.2008; that learned counsel for the petitioner
was not granted an opportunity to cross-examine Respondent No. 1 Mst. Omaira
Anwar; that the impugned judgment and decree was hit by the law laid down in
2007 CLC 505 and 2008 SCMR 240; that the medical report pertaining to the
petitioner showing him as an insane person suffering from Schizophrenia was not
appreciated; that the petitioner was condemned unheard and that the impugned
orders passed by Respondent No. 4 and subsequent proceedings pending with Respondent
No. 5 were illegal, unwarranted and without lawful authority. Referring to
Section 10(4) of the Family Court Act, 1964 and the law laid down in PLD 1973
Lah. 95, it was argued that the passage of the order dated 15.9.2008 amounted
to reviewing the order dated 7.6.2008.
5. I have
considered the arguments of learned counsel for the petitioner and have gone
through the entire record appended with the writ petition.
6. It is stated in
ground (vi) of the writ petition itself that by order dated 7.6.2008, only the
plaint to the extent of dowry articles was returned whereas by order dated
15.9.2008, suit for dissolution of marriage was decreed on the basis of Khula
in consideration of dower. Section 10(4) was amended and a proviso was added to
the effect that notwithstanding any decision or judgment of any Court or
tribunal, the Family Court in a suit for dissolution of marriage, if
reconciliation fails, shall pass a decree for dissolution of marriage forthwith
and shall also "restore to the husband the Haq Mehar received by the wife
in consideration of marriage at the time of marriage." The key words are
"if reconciliation fails." In the present case, it is the case of the
writ petitioner himself that he was insane and was confined in jail. He was
suffering from Schizophrenia. If the petitioner was indeed insane and suffered
from Schizophrenia, it passes my comprehension as to what would have been the
use of calling him from the jail. He was not a "person" competent
according to the contents of the writ petition themselves. The present writ
petition has been filed through his mother. The rulings, namely, 2007 CLC 505
and 2008 SCMR 840 were entirely in different situations. In none of those
cases, the male partner was an insane person. The order dated 15.9.2008 passed
by the learned Judge Family Court (Respondent No. 4) was with jurisdiction and
at least to the extent of dissolution of marriage, territorial limits were
irrelevant. I am conscious that there is no limitation to file a writ petition
albeit question of laches would be relevant. The impugned order is dated
15.9.2008 whereas the present writ petition was filed on 19.2.2009. The
petitioner had challenged the order dated 6.9.2008 before the learned
Appellate Court as aforementioned and he
was successful vide judgment dated 14.10.2008 passed by Mr. Zafar Ullah Tarar,
learned Addl. District Judge, Lahore. The order dated 15.9.2008 to all intents
and purposes was quite lawful and with jurisdiction. Consequently, subsequent
proceedings before the Chairman, Arbitration Council (Respondent No. 5) would
also be quite within the mandate of his authority. It was not denied that the
factual position stated in Para 7 of the order dated 6.9.2008 passed by the
learned Judge, Family Court was correct. It was noted that Respondent No. 1 had
to shift to Lahore as of compulsion because the present petitioner had
committed murder of a neighbourer and that her life was seriously at stake. In
any case, question of jurisdiction was irrelevant for purposes of dissolving
marriage and the relevant decree for dissolution was sound both on law and
facts. The writ petition appears to have been filed in a circuitous manner, to
take a chance and to make a cobweb of litigation against Respondents Nos.1 to
3.
7. For all the
above reasons, the petitioner has no justiciable cause to be examined in the
extra-ordinary writ jurisdiction of this Court. Consequently, it is dismissed
in limine.
(R.A.) Petition dismissed
