A non custodial parent has inherent right to effectively participate in the upbringing of minor

 PLJ 2024 Lahore 601

Present: Masud Abid Naqvi, J.

FAYYAZ-UL-HASSAN ANWAR--Petitioner

versus

Mst. SHEHLA KHALID etc.--Respondents

W.P. No. 46618 of 2021, heard on 21.3.2024.

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--Application for custody of minor--Dismissal of petition as withdrawn--Visitation schedule--Appeal--Partly allowed--Petitioner was paying maintenance allowance--Petitioner was living alone without any female--Non-custodial parent--Amendment in visitation schedule--Challenge to--Counsel for petitioner, under instructions of petitioner fully assures High Court that petitioner will never ever remove minor from jurisdiction of Guardian Court--A minor not only needs love, affection, care and attention of a mother but also father and negating a non-custodial parent of his/her right to meet his/her minor children would lead to emotional deprivation--A non-custodial parent has an inherent right to effectively participate in upbringing of minor and that cannot be achieved without properly chalked visitation schedule--Visiting schedule significantly bridges a relationship between minor children and a non-custodial parent--Using visitation rights, a non-custodial parent can not only recolour emotions of minor children for him/her but also reinvigorate bond of love and affection with minor--Partly allowed.            [Pp. 603 & 605] A, B & C

2018 SCMR 1991 ref.

Mr. Muhammad Mumtaz Faridi, Advocate for Petitioner.

Mr. Allah Ditta Naseem, Advocate for Respondent No. 1.

Date of hearing: 21.3.2024.

Judgment

Brief facts of this writ petition are that petitioner/ father filed an application under Section 25 of the Guardians & Wards Act, 1890 (“Act”) for custody of the minor namely Marosh Hassan, which was contested by Respondent No. 1/ mother by filing reply and raising certain legal as well as factual objections. Out of divergent pleadings of both the parties, issues were framed by the learned Guardian Court. Thereafter, on 10.06.2020, the petitioner/father appeared before the learned Guardian Court and got recorded his statement which is reproduced hereunder:

“stated that if schedule of the minor’s meeting with me as a real father be fixed by the Court then I would not be having any objection if the instant petition for custody of the minor be dismissed as withdrawn.”

Learned Guardian Court issued a schedule of meeting with minor and dismissed the petition as withdrawn vide order dated 10.06.2020. Feeling aggrieved, Respondent No. 1 filed an appeal and learned Additional District Judge, Pakpattan vide judgment dated 31.05.2021 partially allowed the appeal and issued new schedule for visitation of minor with the petitioner/father. Being dissatisfied, the petitioner/father has filed the instant writ petition and challenged the validity of impugned judgment passed by the learned Appellate Court.

2. During arguments, learned counsel for the petitioner has shown no objection on certain amendments in the order of learned Guardian Court, under instructions, while learned counsel for Respondent No. 1 fully supports the impugned judgment, passed by learned Appellate Court with the arguments that the petitioner/ father is living alone without any female in the house and will not properly maintain his ten years old minor daughter and the Respondent
No. 1/mother seriously apprehends that overnight stay will be misused by the petitioner/father in removing the minor from the jurisdiction of the learned Guardian Court but also acknowledges that the petitioner/ father is paying the maintenance of minor without any arrears at this moment. On query, learned counsel for the petitioner, under instructions of petitioner present in the Court, fully assures this Court that the petitioner will never ever remove the minor from the jurisdiction of the learned Guardian Court. I have heard the arguments of the learned counsels for the parties and perused the available record as well as have minutely gone through the impugned judgment.

3. Perusal of record reveals that after recording the statement of the petitioner/father, the learned Guardian Court dismissed the application under Section 25 of the Guardians & Wards Act, 1890 as withdrawn and also issued a schedule of visitation, which is reproduced hereunder:-

(i)       The interim custody of the minor will be handed over to the petitioner (father) on first Saturday of every Calendar month at 5:00p.m and respondent shall return the interim custody of the minor to the respondent (mother) on first Sunday at 5:00p.m.

(ii)      On the second day of Eid-ul-Fitar the petitioner (father) shall be entitled for interim custody of the minor on 2nd day of Eid-ul-Fitar from 5:00p.m and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Fitar at 5:00p.m.

(iii)     On the second day of Eid-ul-Azha the petitioner (father) shall be entitled for interim custody of the minor on 2nd day of Eid-ul-Azha from 5:00p.m and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Azha at 5:00p.m.

(iv)     On the occasion of birthday of the minor, the petitioner (father) shall be entitled for interim custody of the minor from 5:00p.m and petitioner shall return the interim custody of minor to respondent (mother) on the next day of birthday of the minor at 5:00p.m.

(v)      During summer vacations, the interim custody of the minor shall be handed over to the petitioner/father on the 1st Sunday of the summer vacations so declared by the School/Government and shall be returned to the respondent/mother at the evening on the 4th Sunday so that minor may have four weeks to spent with his father.

(vi)     During winter vacations the interim custody of the minor shall be handed over to the petitioner/father for first half of the winter vacations and the minor shall be returned to the respondent/mother. All the above said meetings will be subject to submission of surety bonds to the tune of Rs. 700,000/- and fee payable to the bailiff by the petitioner.

Learned Appellate Court partially accepted the appeal of Respondent No. 1/mother and new schedule for visitation of minor with respondent was framed, which is reproduced hereunder:-

(i)       The interim custody of the minor will be handed over to the respondent (father) on first Saturday of every Calendar month at 10:00 a.m and he shall return the interim custody of the minor to the appellant (mother) on the same day at 1:00 p.m. This meeting would be happened in the visitation room established inside the Court premises.

(ii)      On second day of every Eid, at 11:00 a.m the custody of minor will be handed over to the respondent. And he will return her custody to appellant at 3:00 p.m on the same day subject to furnishing surety bond of Rs. 10,00,000/- . Surety will be responsible for safe custody of minor and handing over the custody of minor from one person to another.

(iii)     On the occasion of birthday of the minor, the respondent (father) shall be entitled for interim custody of the minor from 1:00 p.m and he shall return the interim custody of minor to appellant (mother) on the same day at 4:00 p.m.

(iv)     The respondent (father) will visit the minor during Summer and Winter vacations on every Saturday of month at 11:00 a.m. to 01:30 p.m. at Court premises because minor is of tender age and her custody cannot be handed over to the respondent for night stay.

(v)      All the above said meetings will be subject to submission of surety bonds to the tune of Rs. 10,00,000/- and fee payable to the bailiff by the respondent (father).

4. It is a settled proposition of law that a non-custodial parent has all the rights to meet his/her children and neither right of access to his/her minor children can be denied nor a non-custodial parent will be considered as an alien to his/her children. A minor not only needs love, affection, care and attention of a mother but also the father and negating a non-custodial parent of his/her right to meet his/her minor children would lead to emotional deprivation. A non-custodial parent has an inherent right to effectively participate in upbringing of minor and that cannot be achieved without properly chalked visitation schedule. Due to lack of interaction with non-custodial parent, the children start forgetting and in many cases disliking the non-custodial parent and this phenomenon has been named as Parental Alienation Syndrome by the psychiatrists. Hence, visiting schedule significantly bridges a relationship between the minor children and a non-custodial parent. Using visitation rights, a non-custodial parent can not only recolour the emotions of minor children for him/her but also reinvigorate the bond of love and affection with minor.

5. Although, the law on the subject of visitation is contained in the Guardian & Wards Act (VIII of 1890) but without any guidelines about the duration, frequency of those visits of minor and about the visitation schedule, hence, while deciding about the visitation schedule, the paramount consideration is the welfare of minor. Considering the paramount consideration of welfare of minor and in view of the dictum laid down by the Honorable Superior Courts about chalking the visitation schedule of minor, especially the case reported as Mst. Madiha Younus vs. Imran Ahmed (2018 SCMR 1991), the petitioner is entitled to meet with his daughter/ minor as per new visitation schedule which is reproduced hereunder:

(i)       The interim custody of the minor will be handed over to the petitioner (father) on first Saturday of every Calendar month at 5:00 pm and respondent shall return the interim custody of the minor to the respondent (mother) on first Sunday at 3:00 pm.

(ii)      On the second day of Eid-ul-Fitar the petitioner (father) shall be entitled for interim custody of the minor from 5:00 pm and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Fitar at 3:00 pm.

(iii)     On the second day of Eid-ul-Azha the petitioner (father) shall be entitled for interim custody of the minor from 5:00 pm and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Azha at 3:00 p.m.

(iv)     On the occasion of birthday of the minor, the petitioner (father) shall be entitled for interim custody of the minor from 4:00 pm and petitioner shall return the interim custody of minor to respondent (mother) on the same day of birthday of the minor at 8:00 pm.

(v)      During summer vacations, the interim custody of the minor shall be handed over to the petitioner/ father on the 1st Sunday of the summer vacations so declared by the School/Government and shall be returned to the respondent/mother by the petitioner after two weeks of minor’s stay with him & during winter vacations the interim custody of the minor shall be handed over to the petitioner/father for just first three days of the winter vacations and thereafter, minor shall be returned to the respondent/mother.

(vi)     All the above said meetings will be subject to submission of surety bonds to the tune of Rs. 1000,000/- (rupees ten lacs only) by the petitioner/father to the satisfaction of the learned guardian Court prior to receiving the minor from respondent/mother and also surrendering his international valid passport during the minor’s stay with him and by paying fee payable to the Court’s bailiff by the petitioner.

6. In view of above discussion, instant petition is partly allowed by setting aside the impugned judgment of learned Appellate Court and by also amending the visitation schedule, chalked out by the learned Guardian Court.

(Y.A.)  Partly allowed

Maternal Grandparents Rights of Custody of Minor

 PLJ 2024 Lahore (Note) 126

[Multan Bench, Multan]

Present: Raheel Kamran, J.

Mst. AMEER MAI etc--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 11228 of 2023, decided on 20.2.2024.

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan, 1973, Art. 199--Application for custody of minor--Pendency of litigation--Appeal--Dismissed--Visitation schedule--Maternal grand parents--Visitation rights--Challenge to--Undisputedly minor had been resided with her grandmother since her birth--She was of tender age of about 2½ years--No emotional bond had been developed between minor and her father and paternal relations, abrupt withdrawal of her custody from her maternal grandparents might be very traumatic for minor--Documents qua early retirement of Respondent No. 3 and admission of brother of minor in F.G. Public School No.1 (Boys), Gujranwala Cantt did not form part of evidence as those came into existence after decision of Guardian Court--High Court deemed it appropriate to remand matter to trial Court concerned for determination of custody of welfare of minor after permitting parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à-vis minor twice every month on weekends for two hours each time so that bond of love and affection between minor and her father was allowed to be developed--Petition disposed of.               

                                                                                  [Para 6] A, B & C

Mr. Muhammad Nadeem Fareed, Advocate for Petitioners.

Rao Muhammad Adnan, Advocate for Respondent No. 3.

Date of hearing: 20.2.2024.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed judgment dated 06.07.2023 passed by the learned Additional District Judge, Taunsa Sharif whereby her appeal against the judgment dated 27.04.2023 passed by the learned Guardian Judge, Taunsa Sharif about custody of minor namely Rukhsar Bano aged 2½ years to her real father i.e. Respondent No. 3 was dismissed.

2. Learned counsel for the petitioner contends that impugned judgments of the learned Courts below are unsustainable as Respondent No. 3 is serving in Pakistan Army who is not residing within the village and is unable to devote time for proper upbringing of the minor, whereas the minor has been residing with her maternal grandmother since her birth. He maintains that no effort has been made by Respondent No. 3 to exercise his visitation rights during pendency of proceedings before the learned trial Court, learned Appellate Court or this Court, therefore, there is no bond of love and affection between minor and her father. He adds that application for custody of the minor has been moved with malafide to deprive maternal grandparents from custody of minor and entrust the same to her paternal grandparents which hardly serve welfare of the minor. Reliance has been placed on judgments in the cases of Raja Muhammad Owais vs. Mst. Nazia Jabeen and others (2022 SCMR 2123) and Mst. Anwari Bibi vs. Hidayat Ulah Khan and others (2020 MLD 302).

3. Conversely, learned counsel for the Respondent No. 3 has supported the impugned judgments for the reasons that stated therein. He has emphasized that not only father of the minor is her natural guardian who, in the absence of any disqualification in law, is entitled to her custody but he is with better means and resources to ensure welfare of the minor and her upbringing with the assistance of his mother and sister. He adds that the minor would be better off to be brought up in the company of her brother who is already in the custody of her father. It has been emphatically argued that custody of the minor could not be entrusted to maternal grandparents who are delinquent in upbringing their own granddaughter and litigation in this regard is pending adjudication before the learned Family Court which has been filed by their daughter- in-law for the provision of her maintenance. He maintains that in order to properly bring up his minor children, the Respondent No.3 has applied for early retirement and his son has already been enrolled at F.G. Public School No. 1 (Boys), Gujranwala Cantt since July 2023 where he is residing with his paternal grandmother and paternal aunt. Reliance has been placed on the case of Shabana Naz vs. Muhammad Saleem (2014 SCMR 343).

4. Father of the minor, present in the Court, submits that he has not been allowed to meet the minor rather threats have been extended to him whenever he made any such attempt of visitation. Documents i.e. Fee Card of Muhammad Saqlain issued by F.G. Public School No. 1 (Boys) Gujranwala Cantt, application regarding retirement submitted by the Respondent No. 3 and Residency Certificate are produced by the learned counsel for the Respondent No.3, copies whereof has been retained and original documents have been returned to the learned counsel for the Respondent No. 3.

5. Arguments heard. Record perused with the able assistance of learned counsel for the parties.

6. Welfare of the minor is the primary consideration governing the grant of custody of minors. While this Court is of the considered opinion that in the absence of his disqualification, a father cannot be deprived of custody of the minor as ordinarily welfare of the minor lies with his or her parents. In exceptional cases and for valid reasons, a parent can be denied the right of custody while entrusting it to the grandparents, when it is absolutely necessary and in the welfare of the minor to do so. In the instant case, undisputedly the minor has been residing with her grandmother since her birth. She is of tender age of about 2½ years. Undeniably, no emotional bond has been developed between the minor and her father and paternal relations, therefore, abrupt withdrawal of her custody from her maternal grandparents may be very traumatic for the minor. Additionally, documents qua early retirement of Respondent No.3 and admission of brother of the minor in the F.G. Public School No.1 (Boys), Gujranwala Cantt do not form part of the evidence as those came into existence after decision of the Guardian Court. Therefore, to allow fair opportunity to either side, this Court deems it appropriate to remand the matter to the learned trial Court/Guardian Judge concerned for determination of custody of welfare of minor after permitting the parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à- vis the minor twice every month on the weekends for two hours each time so that the bond of love and affection between the minor and her father is allowed to be developed. For that purpose, schedule of visitation shall be set down on an application to be moved by Respondent No.3. The learned Guardian Judge shall ensure that visitation right is allowed to be exercised by the Respondent No. 3 without any hindrance or intimidation whatsoever. Accordingly, the impugned judgments shall be set aside and application of Respondent No. 3 shall be deemed to be pending before learned Guardian Judge concerned who shall decide the same afresh within a period of three months and a compliance report in that regard shall be submitted to the Deputy Registrar (Judicial) of this Court.

7. Disposed of.

(Y.A.)  Petition disposed of

Procedure to prepare Power of Attorney for Saudi Arabia from Pakistan

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International Lawyer

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Applicability of Muslims Family Laws Ordinance 1961

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Khula Set-Aside upon non-payment of Haq Mehr

 PLJ 2022 Islamabad 129

Present: Babar Sattar, J.

SHAZA TEHSEEN --Appellant

versus

TEHSEEN BUTT, etc.--Respondents

W.P. No. 4332 of 2021, decided on 29.4.2022.

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 10(4) & 14(2)(a)--Dissolution of Muslim Marriages Act, (VIII of 1939), S. 2(iii)(d)--Suit for dissolution of marriage, maintenance allowance, and custody of minor--Suit was decreed to extent of dissolution of marriage--Repayment of Haq Mehr--Challenge to--Family Court had not passed any order with regard to repayment of Haq Mehr received by petitioner, appellate Court had set-aside decree for dissolution of marriage in accordance with requirement of section 10(4) of Family Courts Act--Grant of decree for dissolution of marriage was contingent on repayment of Haq Mehr paid by husband to wife at time of marriage and such decree could not be passed without repayment of Haq Mehr--Dissolution of marriage can be sought by a wife either on basis of any fault of husband or on a no-fault basis--Where wife is seeking dissolution of marriage due to cruelty on part of husband and Family Court comes to conclusion on basis of evidence adduced before it that wife is entitled to dissolution of marriage due to cruelty wife in such case cannot be burdened with liabilities returning dower received at time of marriage--Question of determination of civil liabilities of wife i.e. quantum of Haq Mehr payable by wife to husband upon dissolution of marriage on basis of khula was a question to be determined by Family Court and to extent that it was not determined, matter was rightly remanded back by appellate Court to Family Court to frame an issue and allow parties to adduce evidence in relation thereto--Petition allowed.

                                                          [Pp. 132, 133 & 137] C, D, E & H

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14(2)(a)--Filling of appeal--No appeal could be filed against decree of a Family Court for dissolution of marriage except when dissolution of marriage was pursuant to section 2(viii)(d) of Dissolution of Muslim Marriages Act, 1939.                                                                                         [P. 131] A

Family Courts Act, 1964 (XXXV of 1964)--

----S. 10(4)--Restoration of Haq Mehr--Husband was entitled to restoration of Haq Mehr received by wife in consideration of marriage--In event of dissolution of marriage on basis of Khula, repayment of Haq Mehr was condition precedent for issuing a decree for dissolution of marriage.                [P. 131] B

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Dissolution of marriage--Where family Court dismissed a suit seeking dissolution of marriage on ground of cruelty and non-maintenance, wife aggrieved by such decision could file an appeal under section 14 of Family Courts Act.                                                                                   [P. 134] F

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14(2)--Civil liabilities--Only appealable part under section 14(2) is a finding of Family Court which determines his civil liabilities for lack of grant of Haq Mehr upon dissolution of marriage.  [P. 134] G

Ms. Jamila J. Aslam, Advocate for Petitioner.

Mr. Abid Hussain Chaudhry, Advocate, for Respondent No. 1.

Syed Asad Ali Saeed, Advocate for Respondent No. 3.

Date of hearing: 21.2.2022.

Judgment

The petitioner is aggrieved by judgment and decree passed by the learned Additional District Judge dated 20.09.2021 through which the judgment and decree for dissolution of marriage passed by the learned Judge Family Court dated 21.06.2021 was set-aside.

2. Learned counsel for the petitioner contended that pursuant to the proviso of section 10(4) of West Pakistan Family Courts Act, 1964 (“Family Courts Act”), the learned Family Court is under an obligation to pass a decree for dissolution of marriage forthwith upon failure of reconciliation proceedings. That after the failure of reconciliation proceedings in the instant case the learned Family Court rightly passed the judgment and decree to the extent of dissolution of marriage while the question of quantum of maintenance and the custody of minor remained pending before the learned Family Court. That the question raised before the learned Additional District Judge in appeal regarding the quantum of dower to be returned by the petitioner to Respondent No. 1 on dissolution of marriage which the petitioner was ready to repay. And thus the only dispute between the parties related to the exact dower and the manner in which it was to be returned for purposes of which the matter could be remanded back to the learned trial Court. However, what the learned Additional District Judge could not do was to set- aside the decree for dissolution of marriage as once such a decree had been passed the marriage had been dissolved and could not be resurrected by the learned appellate Court while setting aside such decree. She further submitted that under section 14(2)(a) of the Family Courts Act no appeal could be filed against the decree of a Family Court for dissolution of marriage except when the dissolution of marriage was pursuant to section 2(viii)(d) of the Dissolution of Muslim Marriages Act, 1939 (i.e. where dissolution is due to the husband treating the wife with cruelty and disposing of her property or preventing her from exercising her legal rights over it). She submitted that as the dissolution of marriage had not been ordered pursuant to such provision of the Dissolution of Muslim Marriages Act, 1939, the appeal against the decree for dissolution of marriage was not maintainable in terms of section 4(2)(a) of the Family Courts Act. She relied on Sadia Arif vs. Adnan Shahid and 2 others (2021 YLR 1753) wherein this Court had held that dissolution of marriage through Khula was neither revocable nor appealable.

3. Learned counsel for Respondent No. 1 submitted that there was no infirmity in the judgment rendered by the learned appellate Court. That the proviso to section 10(4) of the Family Courts Act itself provided that husband was entitled to restoration of Haq Mehr received by wife in consideration of marriage. In the event of dissolution of marriage on the basis of Khula, such repayment of Haq Mehr was condition precedent for issuing a decree for dissolution of marriage. That in the instant case as the learned Family Court had not passed any order with regard to repayment of Haq Mehr received by the petitioner, the learned appellate Court had set-aside the decree for dissolution of marriage in accordance with the requirement of section 10(4) of the Family Courts Act. He relied on Malik Khawaja Muhammad vs. Marduman Babar Kahol (1987 SCMR 1543), Muzaffer Ali vs. Mst. Mehrun Nisa (1989 CLC 1805), Naila Azmat vs. Judge, Family Court and others (1999 MLD 3090), Ahmed Khan vs. Mst. Sarwar Khatoon (2004 MLD 555), Shagufta Bibi vs. Judge Family Court, Mailsi (2013 MLD 487) and Mst. Shahida vs. Sardar Shah (2018 MLD 146) for the proposition that grant of decree for dissolution of marriage was contingent on repayment of Haq Mehr paid by the husband to the wife at the time of marriage and such decree could not be passed without repayment of Haq Mehr.

4. Let us reproduce provisions of the Family Courts Act which are relevant for our present purposes:

10. Pre-trial Proceedings.--(1) When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case.

(2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precise of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties and their counsel.

(3) At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.

(4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording of evidence.

14. Appeals.--(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable--

(a)      to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and

(b)      to the District Court, in any other case.

(2) No appeal shall lie from a decree passed by Family Court--

(a)      for dissolution of marriage, except in the case of dissolution for reasons specified in clause (a) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;

(b)      for dower not exceeding rupees fifteen thousand;

(c)      for maintenance of rupees five hundred or less per month.

5. The two questions that arise before the Court are whether repayment of Haq Mehr received by the wife in consideration of marriage at the time of marriage is a condition precedent for issuance of a decree in suit for dissolution of marriage on the basis of Khula and whether an appeal against a judgment and decree for dissolution of marriage is maintainable in view of section 14(2)(a) of the Family Courts Act. In view of the provisions of the Family Courts Act together with the provisions of the Dissolution of Muslim Marriages Act, 1939, it becomes apparent that dissolution of marriage can be sought by a wife either on the basis of any fault of the husband or on a no-fault basis. Where the wife is seeking dissolution of marriage due to cruelty on part of the husband and the Family Court comes to the conclusion on the basis of evidence adduced before it that the wife is entitled to the dissolution of marriage due to cruelty the wife in such case cannot be burdened with the liabilities returning dower received at the time of marriage. This was held by the august Supreme Court in Abid Hussain vs. Additional District Judge, Alipur, District Muzaffargarh (2006 SCMR 100). It was further held in the said judgment that “non- provision of appeal in case of dissolution of marriage was to protect women … from prolonged and costly litigation”.

6. The question of repayment of Haq Mehr does however arise in case wife seeks dissolution of marriage on no-fault basis i.e. on the basis of her own considered judgment that she can no longer live with her husband within the bond of marriage. No-fault dissolution of marriage does not contradict Islamic jurisprudence. A woman cannot be forced to continue to suffer within the bond of marriage that she does not wish to remain tied up in and she need not prove and justify the cause of her decision before a Court to seek dissolution of marriage. Dissolution of marriage is not a welcome outcome and thus there is emphasis on making efforts to facilitate reconciliation between spouses to ensure that the union preserves. But where it becomes obvious that the wife is unwilling to stay in the bond of marriage during pretrial reconciliation proceedings, the Family Court is under an obligation to pronounce dissolution of marriage forthwith. The question whether dissolution of marriage was sought due to the husband’s fault or not and whether return of Haq Mehr is due from the wife are additional questions for which issues can be framed and evidence recorded. But the question of determination of liabilities while contingent on whether the wife is seeking dissolution due to husband’s fault, is not a precondition for dissolution of marriage. The question of such determination arises post-dissolution and thus dissolution of marriage is not contingent on repayment of Haq Mehr by the wife. There is no concept of personal servitude within the concept of marriage in Islam and none can be imported in section 10(4) of the Family Courts Act. A woman cannot be forced to live with her husband when she wants the marriage dissolved merely because the matter of calculation or settlement of civil liabilities is outstanding between them.

7. The aforementioned scheme of the law is also evident from section 14(2)(a) of the Family Courts Act which prohibits filing an appeal against a decree for dissolution of marriage except when such dissolution is on the basis of finding of the Court that a husband has indulged in cruelty and the marriage is liable to be dissolved pursuant to section 2(viii)(d) of the Dissolution of Muslim Marriages Act, 1939. In this context it was held by the learned Sindh High Court in Aurangzeb vs. Mst. Gulnaz and another (PLD 2006 Karachi 563) that the decision with regard to determination and restoration of benefits at the time of dissolution of marriage is appealable and such appeal is not barred by section 14 of the Family Courts Act. The learned Lahore High Court came to a similar conclusion in Khawaja Jameel Ahmed vs. Judge Family Court, Multan and another (PLJ 2013 Lahore 185). Likewise, the august Supreme Court held in Abid Hussain vs. Additional District Judge, Alipur, District Muzaffargarh (2006 SCMR 100) that where the family Court dismissed a suit seeking dissolution of marriage on ground of cruelty and non-maintenance, the wife aggrieved by such decision could file an appeal under section 14 of the Family Courts Act. What emerges from the law laid down by superior Courts is that the question of determination of civil liabilities between spouses upon dissolution of marriage was appealable under section 14 of the Family Courts Act. In the event that a decree has been passed by holding that the husband was liable for cruelty and not entitled to the return of Haq Mehr, the husband can appeal the said part of the judgment which held him for liable for cruelty and disentitled him from return of Haq Mehr. He can however not seek to have the decree of dissolution of marriage itself set-aside. In other words, the only appealable part under section 14(2) is a finding of the Family Court which determines his civil liabilities for lack of grant of Haq Mehr upon dissolution of marriage. Likewise, a wife who seeks dissolution of marriage on the basis of cruelty and the dissolution is not granted on such basis, can appeal such order in the event that she is aggrieved of the determination by the Family Court for civil liability to repay Haq Mehr she received from the husband. In such case as well it is the only part of the judgment determining the civil liabilities of the parties that is appealable and not the decree of dissolution of marriage as it cannot be countenanced that marriage having been dissolved by a decree passed by the Family Court can subsequently be resurrected by the appellate Court on the basis that a dispute continues with regard to their civil liabilities as determined by the Family Court in the aftermath of the dissolution of marriage.

8. In forming such opinion this Court relies on the judgment of the august Supreme Court in Dr. Akhlaq Ahmed vs. Mst. Kishwar Sultana (PLD 1983 SC 169), wherein the following was held:

As regards the third submission of the learned counsel for the petitioner that dissolution of marriage by Khula’ cannot stand whilst an inquiry on fact with regard to the terms on which it is to be granted is yet to take place, it appears plausible but is not quite sound. It was held in the case of Moonshee Buzul-ul- Raheem v. Luteefutoon Nisa (8 Moore’s Ind. App. 379) that non- payment of stipulated consideration for Khula’ does not invalidate the dissolution of marriage by Khula’. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God and the dissolution of marriage by Khula’ must take place, the inquiry into the terms on which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself.

Likewise, the learned Sindh High Court in Aurangzeb vs. Mst. Gulnaz (PLD 2006 Karachi 563) held the following:

Thus, the consensus of judicial opinion is that restitution of dower is not an indispensable condition for the grant of Khula’ and non-restoration of dower and other benefits will not have any effect upon the validity of the decree. Once the Family Court comes to conclusion that a wife was entitled for Khula’ it must pass such decree in her favour. The decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability. If the contention of the petitioner that Khula’ cannot be granted without restitution of dower and other benefits is accepted, then a destitute wife, who is found otherwise entitled to Khula’, will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice.

10. … Though a decree for the dissolution of marriage on the ground of Khula’ is not appealable in view of the proviso to section 14 of the Family Courts Act, 1964, a decision with regard to determination and restoration of mutual benefits is always appealable and for this view reference may be made to the cases of Muhammad Shafi v. District Judge Gujrat and another 1982 CLC 2057 Lahore, Muhammad Sanaullah v. Muhammad Ilyas, Senior Civil Judge/Judge Family Court Toba Tek Singh and 2 others PLD 1987 Lahore 70, and Muhammad Shaban v. Judge Family Court and others 2003 YLR 2708 Lahore.

9. Learned counsel for the respondent relied on Naila Azmat vs. Judge Family Court (1999 MLD 3090 Lahore) for the proposition that dissolution of marriage is not absolute and is subject to fulfillment of certain conditions by the wife i.e. repayment of Haq Mehr. He further relied on Shagufta Bibi vs. Judge Family Court, Mailsi (2013 MLD 487 Lahore) wherein the learned Lahore High Court held that decree on the basis of khula granted under section 10(4) of Family Courts Act was conditional upon repayment of Haq Mehr. Likewise, the learned counsel for the respondent while relying on Mst. Shahida vs. Sardar Shah (2018 MLD 146 Peshawar) submitted that the learned Peshawar High Court in the said judgment held that unless the amount of khula was not paid to the husband the dissolution would not attain finality. With due respect this Court is not in agreement with the view that dissolution of marriage is contingent on prior discharge of civil liabilities by a wife i.e. through return of Haq Mehr. It also appears that the judgment of the learned Peshawar High Court in Mst. Shahida vs. Sardar Shah (2018 MLD 146 Peshawar) has been misconstrued by not just the learned counsel for the respondent but also by the law journal that published it due to the construction of the head note. In the said judgment it has not been held that dissolution of marriage on the basis of khula does not attain finality till such time that the amount of khula is repaid by the wife to the husband. The question in this case related to the maintainability of appeal. As has been discussed above an appeal against a part of the judgment determining liability of the wife to repay Haq Mehr or disentitlement of the husband to receive repayment of Haq Mehr on dissolution of marriage is appealable. The reopening of such matter in appeal does not undo the decree for dissolution of marriage as the question dissolution of marriage itself is not appealable. It was held by learned Lahore High Court in Muhammad Shaban vs. Judge Family Court (2003 YLR 2708) that “a decree for dissolution of marriage on the ground of Khula’ is not appealable but decision as to fixing of the amount of consideration payable to the husband for wife’s release from

marriage bond is appealable under section 14 of the Family Courts Act, 1964.”

10. In view of the law laid down by the august Supreme Court in Dr. Akhlaq Ahmed vs. Mst. Kishwar Sultana (PLD 1983 SC 169) and the clear language used in the proviso of section 10(4) read together with section 14(2)(a) of the Family Courts Act it is evident that the matter of dissolution of marriage itself is not appealable. In the instant case the learned Family Court had correctly issued a decree to the extent of dissolution of marriage upon failure of reconciliation proceedings between the petitioner and Respondent No. 1. Such dissolution could not be reopened or a decree to such effect could not be set-aside by the learned appellant Court. To such extent the judgment of the learned appellate Court suffers from infirmity and is liable to be set aside. The question of determination of civil liabilities of the wife i.e. quantum of Haq Mehr payable by the wife to the husband upon dissolution of marriage on the basis of khula was a question to be determined by the learned Family Court and to the extent that it was not determined, the matter was rightly remanded back by the learned appellate Court to the learned Family Court to frame an issue and allow the parties to adduce evidence in relation thereto.

11. The instant petition is allowed and the impugned judgment of the learned appellate Court dated 20.09.2021, to the extent of setting aside the judgment and decree passed by the learned Family Court dated 21.06.2021 for dissolution of marriage in favour of the petitioner, is set-aside. However, the question of determination of Haq Mehr payable by the petitioner to Respondent No. 1 will be deemed pending before the learned Family Court which will frame an issue for such purpose and pass judgment after allowing the parties to adduce evidence.

(Y.A.)  Petition allowed

Sub-Section 5 & 6 of Section 10 of Act, wife could be directed to surrender upto 50% of deferred dower and upto 25% of admitted prompt dower to husband

 PLJ 2020 Lahore (Note) 183

[Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed, J.

MUHAMMAD ASIF--Petitioner

versus

JUDGE FAMILY COURT and others--Respondents

W.P. No. 16740 of 2018, heard on 6.9.2018.

West Pakistan Family Court Act, 1964 (XXXV of 1964)--

----S. 10(5), (6)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for recovery of dower & dissolution
of marriage--Decreed--Appeal--Dismissed--Interpolation and tempering of nikahnama--After thought plea--Non-challenging of entries of Nikahnama--Ignoration of provision of law by Courts below--Excess of jurisdiction--Modification in judgments--Direction to--Entitlement for recovery of residential house--Counsel for petitioner could not point out any misreading or non-reading of evidence by Courts below and as such this Court is of considered view that Courts below were fully justified to discard such after-thought plea--Courts below were not justified to decree total claim of respondent for recovery of Haq-ul-Mehr--In view of Sub-Section 5 & 6 of Section 10 of Act, wife could be directed to surrender upto 50% of deferred dower and upto 25% of admitted prompt dower to husband--Whereas in instant case, Courts below have totally ignored this provision of law--As such impugned judgments being contrary to law and in excess of jurisdiction are not sustainable--Petition was dismissed. [Para 10, 11 & 12] A & B

20002 SCMR 1408, PLD 2016 SC 613 and 2009 SCMR 1458 ref.

Malik Sajjad Haider Maitla, Advocate for Petitioner.

Mr. Abdul Samad Ali, Advocate for Respondent No. 3.

Date of hearing: 6.9.2018.

Judgment

By filing the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the legality and propriety of the judgments passed by learned Courts below, by which suit of Iram Bibi-Respondent No. 3 (respondent) for recovery of dower stood decreed.

2. The summarized facts of this family litigation, necessary for adjudication of this writ petition are that petitioner and respondent were married on 13.03.2016 vide 'Nikah Nama' Exh.P2, against Haq-ul-Mehr Rs. 2000/- in cash. The petitioner also undertook to give a residential house consisting 1-Kanal land (residential house) to respondent and 3-Tola gold ornaments as Haq-ul-Mehr. Just two months after the marriage, the respondent filed a suit for multiple reliefs i.e (i) suit for dissolution of marriage and (ii) for recovery of dower i.e residential house and 3-Tola gold ornaments as per column No. 15 and No. 16 of Nikah Nama'.

3. The suit was resisted by the petitioner mainly on the grounds that it was love marriage and entries in 'Nikah Nama' against column No. 15 and 16 were forged, unauthorized and as such he was not bound to pay claimed "Haq-ul-Mehr'.

4. On 21.07.2016, the pre-trial reconciliation efforts ended in failure and consequently decree for dissolution of marriage was passed in favour of respondent on the basis of 'Khula' subject to surrender of 25% of prompt paid dower. To resolve the remaining controversy, following issucts were framed:--

ISSUES

i.        Whether plaintiff is entitled to decree for recovery of 01 Kanal of land alongwith alleged constructions within limits of Tibba Mustaqil Darmiani worth Rs. 08/- lacs on account of her dower as is prayed by her in her plaint? OPP.

ii.       Whether plaintiff is entitled to decree for recovery of 75% of 03 "TOLLAS" of golden ornaments worth Rs. 1,80,000/- as is prayed by her in her plaint? OPP.

iii.      Whether plaintiff is available with cause of action & locus standi to institute this suit? OPP

iv.      Whether defendant is entitled to recover special costs from plaintiff, if so? Quantum thereof? OPD

v.       Relief.

5. Both the parties led evidence in support of their respective claims and vide judgment and decree dated 28.02.2017, passed by learned Judge Family Court, suit of the respondent was decreed in the following terms:

'A. Plaintiff shall be entitled to recover from defendant 01 Kanal of land alongwith constructions consisting up of four walled boundary & hand pump etc. located heated at Tibba Mustaqil Darmiani.

B. Plaintiff shall also be entitled to recover from defendant 75% of 03 "TOLLAS" of golden ornaments."

6. The petitioner feeling dissatisfied with the impugned judgment and decree assailed the same before learned -Additional District Judge, Kot Addu but the same was dismissed vide judgment and decree dated 06.11.2017, while affirming the findings of learned Judge Family Court, Kot Addu.

7. Feeling dissatisfied with the above judgments of the learned Courts below, the petitioner has approached this Court by filing this writ petition in terms of Article 199 of the Constitution of the, Islamic Republic of Pakistan-1973, with the following prayer:-

" .... that this writ petition may kindly be accepted and impugned judgment and decree dated 28.02.2017 and judgment and decree dated 06.11.2017 be declared as null and void and the same may kindly be set aside in the larger interest of justice and suit of the Respondent No. 3 may very kindly be dismissed."

8. Arguments heard. Record perused.

9. The main contention of learned counsel for the petitioner is that it was love marriage, so, no stipulation regarding giving residential house and 3-tola gold ornaments as dower was settled between the parties and entries in this regard in 'Nikah Nama' Exh.P2 are based on interpolation and tampering. Suffice to observe that this plea of the petitioner could not find favour by learned Courts below, who have out-rightly rejected petitioner's this plea. The learned Judge Family Court while attending to this factual controversy has concluded as under:

"Nikahnama of parties is owned and admitted by defendant, but he alleged that entries thereof so based for plaintiff's claim are forged & fabricated by plaintiff or her parents or her father alone in collusion with nikahkhawan. In said regard, he was obliged to mention down & elaborate relevant details as to when, where, how and by whom such developments was effected. He did not move to get produce original record of said nikahnama, relevant nikah khawan, nikah registrar, witnesses to said nikahnama etc. He was unable to produce "PERT" of nikahnama used to be handed over to groom at the time of nikah. Further significant to mention here that in such like marriages, in prevalent social situation, it is the groom who uses to make up arrangements for such a love marriage including travelling, nikah ceremony, nikah khawan & witnesses etc. Relevant spot and attendants of such marriage including nikah khawan always remain unfamiliar with a bride of love marriage. So, even probabilities of collusive arrangements of plaintiff or her family members with nikah khawan to force in alleged developments in record are not believable at all."

10. During course of arguments, learned counsel for the petitioner could not point out any misreading or non-reading of evidence by the learned Courts below and as such this Court is of the considered view that the learned Courts below were fully justified to discard such after-thought plea.

11. It is settled law that the presumption of truth is attached to the entries of "Nikah Nama" being a public document, whereas as per petitioner's own case, he has not assailed the "alleged" un-authorized entries of "Nikah Nama" before Deputy Commissioner concerned or custodian of 'Nikah Register' or any other competent forum. It means that plea of the petitioner that entries in "Nikah Nama" are unauthorized and made afterwards is without any foundation. In case reported as 'Jan Muhammad Versus Mst. Salamat Bibi and others' (2002 SCMR 1408), 'Abdul Malik and others Versus Mst. Subbha Mai alias Sabbah Mai' (2016 MLD 925 Lahore) and 'Mst. Nabeela Shaheen and others Versus Zia Wazeer Bhatti and others' (PLD 2015 Lahore 88) it has been laid down that 'Nikah Nama' is public document and presumption of truth is attached to the entries made therein. The learned Courts below have given due consideration to the version of the petitioner and rightly discarded the same.

12. The petitioner vide stipulation against Column No. 15 of Nikah Nama' (Exh.P2) has undertaken to transfer a residential house consisting 1-Kanal land in favour of respondent. In view of case 'Mst. Yasmeen Bibi Versus Muhammad Ghazanfar Khan and others' (PLD 2016 Supreme Court 613) such undertaking can be treated as part of dower to respondent in consideration of marriage, whereas in view of case Saddia Usman versus Muhammad usman Iqbal (2009 SCMR 1458), this dower settled between spouses is "Deferred Dower". Under Section 10(5) of the West Pakistan Family Courts Act, 1964 (The Act) in case of passing a decree for dissolution of marriage through 'Khula', the Court can direct a wife to surrender upto 50% of her deferred dower and 25% of her admitted prompt dower to husband, whereas under sub-section 6 of the aforesaid Section, subject to sub-section 5 in a decree for dissolution of marriage, the family Court may direct the husband to pay whole or part of the deferred dower to a wife. As noticed earlier, the parties have entered into marriage on 13.03.2016 and matrimonial dispute arose between them within two months of marriage, forcing the respondent to approach learned family Court for dissolution of marriage and recovery of 'Haq-ul-Mehr'. In the peculiar facts and circumstances of the caserne learned Courts below were not justified to decree the total claim of respondent for recovery of 'Haq-ul-Mehr. In view of Sub-Section 5 & 6 of Section 10 of the Act, the wife could be directed to surrender upto 50% of the deferred dower and upto 25% of the admitted prompt dower to the husband. Whereas in the instant case, the learned Courts below have totally ignored this provision of law. As such impugned judgments being contrary to law and in excess of jurisdiction are not sustainable. Consequently the instant petition is partly allowed. The impugned judgments are modified and respondent is directed to surrender 50% of deferred dower (residential house) measuring 1-Kanal. Consequently, suit of respondent for recovery of dower is decreed to the extent of 50% of deferred dower and respondent will be entitled to recover residential house measuring 10-Marla or its alternate price to be fixed by the learned executing Court. Rest of the decree for dower passed in favour of respondent is in line with Section 10 of the Act and to this extent, the instant petition being devoid of merits is dismissed.

(M.M.R.)         Petition dismissed

Dissolution of Marriage on the basis of Cruelty

 PLJ 2016 Islamabad 391

Present: Miangul Hassan Aurangzeb, J.

KHURRAM NASEER--Petitioner

versus

JUDGE FAMILY COURT (WEST) and others--Respondents

W.P. No. 662 of 2016, decided on 3.3.2016.

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 10(3) & (4)--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage on basis of cruelty and assault, decreed on basis of khula subject to return dower amount--Pre-trial reconciliation proceedings could not result in curing differences--Validity--It is settled law that for a dissolution of marriage on basis of khula statement of wife alone is a determinative factor--Section 10(3) & (4) of Act, 1964, place an obligation on Family Court to effect a compromise or reconciliation between parties--No compromise or reconciliation is possible that it can proceed to dissolve marriage and pass a decree for dissolution of marriage--It is by now well settled that S. 10(4) (requiring wife to restore to husband Haq Mehr received by her in consideration of marriage at time of marriage) shall be applicable only to those cases in which a Family Court grants a decree on ground of khula--Bride asked for dissolution of marriage on basis of khula and expressed her readiness to forgo her right to dower amount--Family Court not just dissolved marriage on basis of khula but also directed her to return dower amount to bridegroom--It was not incumbent for trial Court to establish cruelty or non-payment of maintenance before dissolving a marriage on basis of khula--Petition was dismissed.

                                                                      [Pp. 394 & 395] A, B & C

PLD 2013 SC 255; PLD 2011 SC 905; PLD 2009 Pesh. 92;
PLD 2013 Sindh 348; PLD 2013 Pesh. 12; 2005 CLC 54 ref.

Sayyid Murtaza Ali Pirzada, Advocate for Petitioner.

Date of hearing: 29.2.2016.

Judgment

Through the instant writ petition, the petitioner (Khurram Naseer) has impugned the Order dated 17.11.2015, passed by the learned Judge Family Court (West), Islamabad, whereby the marriage between the petitioner and Respondent No. 2 (Uzma Khurram) was dissolved on the basis of khula under Section 10(4) of the West Pakistan Family Courts Act, 1964 (hereinafter referred to as “WP-FCA, 1964”). Furthermore, Respondent No. 2 was directed to return the dower amount of Rs. 25,000/- to the petitioner. As far as the rest of the claims made by Respondent No. 2 in her suit for dissolution of marriage on the basis of cruelty and assault, recovery of maintenance and dower amount, and the claims made by the petitioner in his written statement, they were to be decided after the recording of evidence.

2.  The record shows that the petitioner and Respondent No. 2 got married on 18.03.2001. During the wedlock, four children were born, namely, Abdul Nafeh (aged 13), Ummama (aged 10), Ramla (aged 08) and Hamna (aged 06). These children are in the custody of Respondent No. 2. On 03.10.2014, the petitioner contracted a second marriage. The strained relations between the petitioner and Respondent No. 1 caused her to leave her matrimonial abode along with her children. On 08.04.2015, Respondent No. 2 instituted the suit for dissolution of marriage etc., before the Court of learned Judge Family Court (West), Islamabad. This suit was contested by the petitioner by filing a detailed written statement wherein the petitioner prayed that a decree for the dissolution of marriage may be granted to Respondent No. 2 “subject to the payment of advance taken at Rs. 10,00,000/- or any other sum, collected from Mr. Chaudhry Sagheer, in connection with Agreement to Sell dated 23.12.2014, entered in to unlawfully by committing criminal breach of trust being a Muslim wife.” Additionally, it was prayed that the suit for the dissolution of the marriage on the basis of cruelty, physical assault and non-payment of maintenance, be rejected.

3.  A copy of the order sheet of the learned trial Court appended to this petition reveals that vide order dated 07.10.2015, the learned trial Court adjourned the matter for pre-trial reconciliation proceedings between the parties to 20.10.2015. As the learned Presiding Officer was on leave on 20.10.2015, the matter was adjourned to 05.11.2015. On 05.11.2015, both the petitioner and Respondent No. 2 were present before the learned trial Court, and they were given time in the Court to reconcile their differences, but to no avail. During these proceedings, Respondent No. 2 asked for the dissolution of the marriage on the basis of khula and expressed her readiness to forego her right to the dower amount. The learned trial Court duly recorded the statements of the contesting parties.

4.  The learned counsel for the petitioner, in the proceedings before the learned trial Court, had taken the position that the marriage could not be dissolved as the matter involved monetary claims of the petitioner, which he was entitled to get prior to the dissolution of the marriage. The learned trial Court, vide order dated 05.11.2015, fixed an amount of Rs. 5,000/- per month for each minor child as interim maintenance, which was payable on or before the 14th of each calendar month with effect from November, 2015. The matter was then adjourned to 17.11.2015. After hearing the parties, the learned trial Court, vide order dated 17.11.2015, dissolved the marriage between the petitioner and Respondent No. 2 on the basis of khula under Section 10(4) of the WP-FCA, 1964.

5.  Learned counsel for the petitioner submitted that the learned trial Court erred by dissolving the marriage between the contesting parties as it was obligatory upon the learned trial Court to wait until evidence was led establishing cruelty at the hands of the petitioner and until the amount due from Respondent No. 2 was recovered by the petitioner. He further submitted that the learned trial Court had violated the procedure prescribed in Section 10 of the WP-FCA, 1964, by not affording a meaningful opportunity to the contesting parties to reconcile their differences. He also submitted that the learned trial Court could not dissolve the marriage on the basis of khula when the suit instituted by Respondent No. 2 was for the dissolution of marriage on the basis of cruelty etc. He also submitted that the learned trial Court erred by dissolving the marriage at the stage of pre- trial reconciliation proceedings without requiring Respondent No. 2 to either amend the existing plaint or to file a fresh plaint seeking the dissolution of marriage on the basis of khula. In making his submissions, the learned counsel for the petitioner relied on the cases of Fakkhar ud Din vs. Kousar Taqreem reported as PLD 2009 Peshawar 92, Muhammad Faisal Khan vs. Sadia reported as PLD 2013 Peshawar 12, Sajid Abbas Rizvi vs. Noureen reported as PLD 2013 Sindh 348, Muhammad Ashraf Butt vs. Muhammad Asif Bhatti reported as PLD 2011 SC 905, and Muhammad Anwar vs. Illyas Begum reported as PLD 2013 SC 255.

6.  I have heard the arguments advanced by learned counsel for the petitioner and perused the record with his able assistance.

7.  I cannot bring myself to agree with the contention made by the learned counsel for the petitioner that in dissolving the marriage on the basis of khula, the learned trial Court violated the mandatory provisions of Section 10 of the WP-FCA, 1964, which is reproduced herein below:--

“10.  Pre-trial proceeding.--(1) [When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case.]

(2)  On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precise of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties, and their counsel.

(3)  At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.

(4)  If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for [the recording of the] evidence.

          [Provided 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 decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.]”

8.  Now the record reveals that on 05.11.2015, the learned trial Court, in accordance with Section 10(3) of the WP-FCA, 1964, gave an adequate opportunity to the contesting parties to reconcile their differences. These pre-trial reconciliation proceedings could not result in curing the differences between the contesting parties, who also happened to be cousins. Therefore, after recording the statements of the contesting parties, the learned trial Court proceeded further and dissolved the marriage in accordance with Section 10(4) of the WP-FCA, 1964, and the proviso thereto.

9.  It is settled law that for a dissolution of marriage on the basis of khula the statement of the wife alone is a determinative factor. Sections 10(3) & (4) of the WP- FCA, 1964, place an obligation on the Family Court to effect a compromise or reconciliation between the parties. It is only after the Family Court considers that no compromise or reconciliation is possible that it can proceed to dissolve the marriage and pass a decree for the dissolution of marriage. As mentioned above, the learned trial Court in the instant case has satisfied these prerequisites.

10.  It is by now well settled that the proviso to sub-section (4) of Section 10 (requiring the wife to restore to the husband the Haq Mehr received by her in consideration of marriage at the time of marriage) shall be applicable only to those cases in which a Family Court grants a decree on the ground of khula. The learned trial Court was correct in dissolving the marriage between the petitioner and Respondent No. 2 on the basis of khula because Respondent No. 2, had on 05.11.2015 claimed dissolution of marriage on the basis of khula and had expressed her readiness to forego her right to the dower amount. Consequently, vide the impugned order dated 17.11.2015, the learned Judge Family Court not just dissolved the marriage on the basis of khula, but also directed Respondent No. 2 to return the dower amount of Rs. 25,000/- to the petitioner.

11.  The contention of the learned counsel for the petitioner that learned trial Court could not have dissolved the marriage on the basis of khula without requiring Respondent No. 2 either to amend her suit or file a fresh one, is hyper technical in nature and goes against the essential requirement of expeditious disposal of such cases. True, Respondent No. 2 had filed a suit for dissolution of marriage on the basis of cruelty, etc., but the record reveals that on 05.11.2015 she asked for the dissolution of the marriage on the basis of khula and expressed her readiness to forgo her right to the dower amount. This is duly recorded in the order dated 05.11.2015, passed by the learned trial Court. Hence, it was not incumbent for the learned trial Court to establish cruelty or non-payment of maintenance before dissolving a marriage on the basis of khula.

12.  The case law relied upon by the learned counsel for the petitioner does not come to his aid. There is no cavil with the law laid down in the case of Muhammad Anwar vs. Illyas Begum reported as PLD 2013 SC 255 that individuals have a right to be treated in accordance with the law. The case of Muhammad Ashraf Butt vs. Muhammad Asif Bhatti reported as PLD 2011 SC 905 relates to the doctrine of lis pendens as enshrined in Section 52 of the Transfer of Property Act, 1882. In this case, it was held that if a revisional Court passes an order which does not qualify the test of Article 4 of the Constitution and suffers from a patent error such as non-reading and misreading of the facts on the record, it can be corrected and rectified by the High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution. In the case of Fakkhar ud Din vs. Kousar Taqreem reported as PLD 2009 Peshawar 92, the Hon’ble Peshawar High Court dilated upon the amendments made in inter alia the West Pakistan Family Courts Act, 1964, through the Family Courts (Amendment) Ordinance, 2002. In paragraph 30 of the said Judgment, guidelines have been provided by the Hon’ble High Court, which can be taken into consideration by the Family Courts while deciding a petition for dissolution of marriage on the ground of khula. Some of these guidelines come to the aid of Respondent No. 2, viz the husband having contracted a second marriage. In the cases of Sajid Abbas Rizvi vs. Noureen reported as PLD 2013 Sindh 348 and Muhammad Faisal Khan vs. Sadia reported as PLD 2013 Peshawar 12, Section 10 of the WP-FCA, 1964, has been interpreted and emphasis has been laid on the requirement to conduct the pre-trial reconciliation process. As mentioned above, the case law relied upon by the learned counsel for the petitioner does not come to his aid. The learned trial Court has strictly adhered to the procedure set out in Section 10 of the WP-FCA, 1964, by conducting pre-trial reconciliation proceedings after the petitioner filed the written statement and before the marriage was dissolved on the basis of khula.

13.  The powers that this Court is to exercise in its constitutional jurisdiction enshrined in Article 199 of the Constitution in a challenge to an order passed by a Family Court dissolving a marriage on the ground of khula have been elaborately set out by the Division Bench of the Hon’ble Peshawar High Court in the case of Hadyat Ullah vs. Amna Bibi reported as 2005 CLC 54 Peshawar, in the following terms:-

“Powers of High Court in constitutional jurisdiction are not analogous to those of an Appellate Court. Constitutional jurisdiction can only be exercised, if the lower Court has exceeded its jurisdiction or acted without jurisdiction. Finding of fact recorded by a Court possessing jurisdiction cannot be disturbed merely on the ground that another view is possible on the same evidence, unless that finding is based on no evidence, is fanciful or arbitrary. The object of taking away right of appeal in the family matters is meaningful. If the constitutional jurisdiction takes the place of appeal, then the intent and purpose of Legislature would be frustrated. Impugned judgment, if passed with competence and jurisdiction conferred on the Court of law, then it cannot be adjudged in Constitutional jurisdiction of High Court.”

14.  In view of the above, I find the order dated 17.11.2015 passed by the learned Judge Family Court to be strictly in accordance with the law and not suffering from any jurisdictional infirmity. The instant writ petition having been bereft of substance is dismissed in limine.

(R.A.)  Petition dismissed