2006 S C M R 100

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ABID HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ALIPUR, DISTRICT MUZAFFARGARH and

another---Respondents

Civil Petition No.3444-L of 2004, decided on 18th October, 2005.

(On appeal from the judgment, dated 1-11-2004 passed by the Lahore High Court,
Multan Bench, in Writ Petition No.5915 of 2004).

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 14---Right of appeal, exercise of---Principles---Dissolution of marriage---Object

behind non-provision of appeal in case of dissolution of marriage was to protect women,
an under privileged and generally oppressed section of the society, from prolonged and
costly litigation, as such it aimed to put a clog on the right of husband---Improper to
construe S.14 (2)(a) of West Pakistan Family Courts Act, 1964, in a way so as to deprive
a wife from appealing from the decree refusing her relief on the grounds which according
to Family Court had not been proved but granting decree of dissolution on some other
ground---Such interpretation would be in violation of wholesome provision of appeal
contained in S.14 (1) of West Pakistan Family Courts Act, 1964, and to defeat the very
object of introducing the Family Courts Act, 1964.

(b) Interpretation of statutes---

----Proviso to a provision of law---Construction---Scope---Provision of proviso is to be

restrictively construed.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

---Ss. 5 & 14---Constitution of Pakistan (1973), Art.185(3)--Dissolution of marriage---

Grounds other than Khula---Wife filed suit for dissolution of marriage on the ground of
Khula and other grounds of habitual cruelty and non-payment of maintenance---Family
Court decreed the suit on the basis of Khula and directed the wife to return the house
which was given to her as dower at the time of her marriage---Appellate Court allowed
appeal of wife and converted dissolution of marriage on the basis of cruelty, whereby she
was not obliged to return the house---Constitutional petition filed by husband before the
High Court, against the judgment and decree passed by Appellate Court, was dismissed---
Plea raised by husband was that the appeal filed by wife before Appellate Court was not
competent as marriage was dissolved on the ground of Khula---Validity---As Family
Court dismissed the suit of wife or did not decree the suit on the grounds of cruelty and
non-maintenance, such wife could file appeal under S.14 (1) of West Pakistan Family
Courts Act, 1964---Appeal under 5.14(1) of West Pakistan Family Courts Act, 1964,
could be filed not only from the decree passed by Family Court but also from the
`decision given'---Appeal of wife was maintainable against the decision given by Family
Court that wife was not entitled to dissolution of marriage on the grounds of cruelty and /
or non-maintenance---Both the Appellate Court as well as High Court had rightly
evaluated the evidence to conclude that wife was entitled to dissolution of marriage on
the ground of cruelty, which ground had been established---Supreme Court declined to
interfere in the judgment and decree passed by the Courts below---Leave to appeal was
refused.

Syed Shamim Abbas Bokhari, Advocate Supreme Court and Haji Muhammad Rafi
Siddique, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 18th October, 2005.

JUDGMENT

KARAMAT NAZIR BHANDARI, J.--- Respondent No.2-wife filed a suit for

dissolution of marriage. In the plaint she asserted habitual cruelty, non-payment of
maintenance for more than 3 years and Khula as the grounds. Out of the pleading the
learned Judge, Family Court framed the following issue, inter alia;

Whether the plaintiff is entitled to get decree of dissolution of marriage as prayed

for? OPP

2. After recording evidence, Family Court passed the decree for dissolution on the basis
of Khula and directed the wife-respondent to return the house constructed over 5 Marlas
of land which was given to her as dower at the time of marriage. The wife-respondent
filed appeal. The learned Additional Judge maintained the decree of dissolution but on the
ground of cruelty. This meant that the wife-respondent was not obliged to return the
house. The appellate decree was challenged by the petitioner in the Lahore High Court,
Multan Bench by way of Writ Petition No.5915 of 2004. The learned Single Bench
dismissed the petition in limine on 1-11-2004, against which the petitioner seeks leave to
appeal.

3. It has been vehemently urged by Mr. Shamim Abbas Bokhari, learned Advocate
Supreme Court that against the decree of the Family Court, appeal of the respondent was
not competent. In this connection he has relied on section 14 of the Family Courts Act,
1964. He has also urged that decree for dissolution could not have been passed on the
ground of habitual cruelty, as there is no evidence on record to sustain the finding.
4. The question of competency of appeal does not seem to have been urged before the
learned Additional District Judge. Certainly it has not been raised in the grounds of writ
petition nor it seems to have been argued at the time of hearing as it does not find
mention in the impugned judgment. The petitioner cannot be permitted to raise this
question in this Court for the first time. Nonetheless we have examined this point as it has
been argued by the learned counsel with considerable vehemence.

5. Section 14 of the Family Courts Act, 1964 reads:--

"14. Appeal.---(1) Notwithstanding anything provided in any other law for the
time being in force, a decision given or 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 any person notified by Government to be of
the rank and status as 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 by a Family Court:-

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

(b) for dower or dowry not exceeding Rupees thirty thousand;

(c) for maintenance of Rupees one thousand or less per month.

(3) No appeal or revision shall lie against an interim order passed by a Family Court.

(4) The Appellate Court referred to in subsection (1) shall dispose of the appeal within a
period of four months."

6. The reliance of the learned counsel is on subsection (2) clause (a) of this section which
debars an appeal from a decree of Family Court for dissolution of marriage except in the
case when the marriage is dissolved on the ground mentioned in clause (d) of item (viii)
of section 2 of the Dissolution of Muslim Marriages Act, 1939. Item (viii) describes the
various forms of cruelty and clause (d) states that if the husband disposes of the property
of the wife or prevents her from exercising her rights over it, it is a form of cruelty.
According to Mr. Shamim Abbas Bokhari, since the decree in this case is passed on the
ground of Khula, as such respondent's appeal was barred under subsection (2) of section
14.

7. The argument ignores the provision contained in subsection (1) which opens with the
non obstante clause and states "the decision given or decree passed by the Family Court
shall be appealable". Subsection (2) is in the nature of a proviso to subsection (1) and
prohibits filing of appeal in case of dissolution of marriage on any ground except the one
mentioned therein. The object behind non-provision of appeal in case of dissolution of
marriage is to protect women, an under privileged and generally oppressed section of our
society from prolonged and costly litigation. It aims to put a clog on the right of husband.
It is well-established that the provision of proviso is to A be restrictively construed. It
would be improper to construe subsection (2)(a) in a way so as to deprive a wife from
appealing from the decree refusing her relief on the grounds, which according to the
Family Court have not been proved but nevertheless granting the decree of dissolution on
some other ground. Such an interpretation would be in violation of the wholesome
provision of appeal contained in subsection 14(1) and the very object of introducing the
Family Courts Act.

8. In the case in hand the wife-respondent claimed dissolution on the grounds other than
that of Khula also. The issue did not contain any reason on proof of which the wife was to
be granted the decree of dissolution. The ground of habitual cruelty and beating had been
specifically taken in paragraphs 3 and 4 of the plaint. The Family Court granted the
decree of dissolution on the ground of Khula and for this purpose it directed the return of
the house since in its judgment the wife had enjoyed this benefit from the marriage with
the petitioner. In other words the Family Court dismissed her suit or did not decree the
suit on the grounds of cruelty and non-maintenance. I fail to understand as to why such
an aggrieved wife cannot file an appeal under section 14(1) of the Family Courts Act,
1964. I am fortified in this conclusion by the language used in subsection (1). Under this
provision appeal lies not only from the decree passed by the Family Court but also the
"decision given" and in this case the decision given was that wife-respondent is not
entitled to dissolution of marriage on the grounds of cruelty and/or non-maintenance. It is
held and declared that her appeal was very much competent. The objection to its
maintainability is rejected.

9. Both the appellate Court as well as the High Court have evaluated the evidence to
conclude that wife-respondent was entitled to dissolution on the ground of cruelty.
Normally this Court does not appraise the evidence to come to its own conclusion.
Nonetheless after going through the evidence we are satisfied that the ground of habitual
cruelty has been established.

10. No case for grant of leave is made out. Leave is refused and this petition is dismissed.

M.H./A-181/S Petition dismissed.

2006 M L D 83

[Peshawar]

Before Malik Hamid Saeed, Muhammad Qaim Jan Khan and Ejaz Afzal Khan, JJ

Mst. SAIMA IRUM and 3 others---Petitioners

Versus

TARIQ JAVED and another---Respondents

Writ Petition No.299 of 2004, decided on 22nd November, 2004.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

---S.5, Sched., Ss. 9 & 10 [as amended by Family Courts (Amendment) Ordinance (LV of
2002)]---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution
of marriage on ground of Khula and otherwise---Entitlement to dower---If husband by his
cruel attitude compelled wife to seek Khula, keeping behind the purpose of taking back
dowered property given by him to the wife, in that case he would not be entitled to its
restoration, but if attitude of wife was not good towards her husband, and she was
reluctant to perform her marital obligations or became unfair in keeping her modesty, in
that case, husband would be entitled to restoration of dowered property---Family Court,
in the present case had dissolved marriage between the parties without specifying as to
whether marriage was being dissolved on the ground of Khula or otherwise---Plaint of
wife had revealed that she had not at all asked for Khula divorce, but had merely sought
divorce on grounds of cruelty, non-maintenance, non-payment of dower,
desertion/separation for more than one and half year and failure upon husband to perform
his marital obligations without any reasonable cause---Family Court in circumstances,
had rightly dissolved marriage between spouses in pre-trial conciliation proceedings by
invoking provisions of proviso to S.10 of West Pakistan Family Courts Act, 1964, but
were wrong on the point of restoration of dowered property, because neither case would,
proceed only for adjudging entitlement of husband to restoration of Haq Mehr nor issue'
of dower would become redundant, but it would proceed for proper determination of
entitlement of both the parties to receipt of dower even if marriage was dissolved on
ground of Khula---Orders passed by Family Court, were set aside with direction to
proceed with the case in accordance with law.

Karimullah v. Mst. Shahbana, W.P. No.1102 of 2002; Karimullah v. Shabana and 2 others
PLD 2003 Pesh. 146 and Anees Ahmad v. Uzma PLD 1998 Lah. 52 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched., 9 & 10 [as amended by Family Courts (Amendment) Ordinance (LV of
2002)]---Dissolution of marriage on ground of Khula---Word `Khula' should be construed
as subject to the presumption that Legislature did not intend by its general language to
subvert established principles of Shariah on the subject and had left it for the Family
Court to decide whether to dissolve the marriage between spouses on ground of Khula or
not---If from the plaint submitted by wife, her only prayer was to dissolve her marriage
on ground of Khula, then Family Court under proviso to Ss.9 & 10 of West Pakistan
Family Courts Act, 1964. could dissolve marriage between them on ground of Khula and
also could order for restoration of Haq Mehr received by wife in consideration of
marriage, but if claim of wife was based on other grounds also such as cruelty etc., then
Family Court would proceed with the case in accordance with law to determine by
recording of evidence that fault lay on which of the parties and which of them were
entitled to it.

M.S.H. Qureshi for Petitioner.

Mehmood Ahmad for Respondent.

Date of hearing: 22nd November, 2004.

JUDGMENT

MALIK HAMID SAEED, J.---This case pertains to a family dispute between Saima
Irum, petitioner No.1/wife and Major Muhammad Tariq Javed, respondent/husband. The
petitioner/wife and her children sued the respondent before the Family Court, Peshawar
for dissolution of marriage on the ground of cruelty etc., recovery of dower and
maintenance etc. The learned trial Court after pre-trial conciliation proceedings passed
order under Ordinance No.LV of 2002 whereby section 10 of the West Pakistan Family
Courts Act (XXXV of 1964) has been amended to the effect that, "Provided that
notwithstanding any decision or judgment of any Court, Tribunal, the Family Court in a
suit for dissolution of marriage, if conciliation fails, shall pass decree for dissolution of
marriage forthwith and shall also restore to the husband the Haq Mehr received by the
wife in consideration of marriage at the time of marriage". The learned trial Judge
although dissolved the marriage of petitioner No.1 with the respondent but with regard
to dower and maintenance etc., it was held that the came would be decided after
recording of evidence of the parties. Issues in this regard were framed. The case could
however not be finally adjudicated upon due to submission of various applications from
both the sides on various aspects of the case, including a review application of the
petitioners for reviewing the order of the trial Court with regard to dissolution of
marriage without dower under amending. Ordinance ibid. The learned trial Judge vide
impugned order dated 26-6-2004 has however, dismissed the review application of the
petitioners and the case has been confined only to the extent of guardianship alone. As
according to the injunctions of Islam, it is obligatory for a husband that he while
divorcing his wife shall pay to her unpaid part of the dower even where the wife,
according to the view of various Muslim jurists, is compelled to resort to 'Khula' due to
the cruelty of the husband, and as similar view has been adopted by this Court in the case
of Karimullah v. M t . Shahbana, W.P. No. 1102 of 2002, decided on 16-1-2003 wherein it
is held that in case of 'Khula' where the Court, through a legal, cogent and convincing
evidence, comes to an irresistible conclusion that the husband because of his
machismonian attitude and displaying his masculine aggressiveness has compelled the
wife to ask for dissolution of marriage on the ground of "Khula", then the Court shall
have the power to refuse the return of the dowered property/amount to husband or to
release him from the liability of payment of dower, therefore, the necessity of placing the
matter before a Full Bench for final decision was felt on the last date of hearing i.e. 3-6-
2004.

2. Today the learned counsel appearing for the respondent raised an objection that this
Court cannot look into the alleged repugnancy of the enacted provisions of law to the
Injunctions of Islam, as it is the job of the Federal Shariat Court, but we are not
convinced with the same, as we are not going to adjudge the repugnancy of the added
Proviso to section 10 of the Family Courts Act, 1964, but to interpret the same in
reference to other provisions of the Act for the future guidance of the Family Court, for,
the matter is of much public importance.

3. Perusal of the impugned orders dated 24-7-2003 and 26-2-2004 of the two learned
Presiding Officers of the Family Court reveals that the former interpreted it, according to
her own wisdom, as if after passing decree for dissolution of marriage in favour of wife at
pre-trial conciliation proceedings, the wife is liable to pay/return dower to the husband,
but as the nature and value of the dower is disputed as per pleadings of the parties,
therefore, the same would require pro and contra evidence, whereas the latter has
interpreted it in the sense that after passing decree for dissolution of marriage in favour of
wife, the issue of dower had become redundant and the Family Court would only decide
the issue of guardianship involved in the case.

4. Both the aforesaid interpretations offered to the relevant provisions of section 10 by the
learned Judges of the Family Court are not correct for the simple reason that while
relying on the added proviso to section 10 of the Family Courts Act, 1964, the learned
Judges of the Family Court have totally ignored the other added proviso to section 9 of
the Family Courts Act, 1964 through the same amending Ordinance No.LV of 2002,
which reads as under:--

"9 ………………………….

Provided that the proviso to subsection (4) of section 10 shall apply where the
decree for dissolution of marriage is to be-passed on the ground of Khula. "

Here, an expressed intention is conveyed by the legislature that the proviso to subsection
(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 the Family Courts grant decree on the ground of Khula.

5. The concept of "Khula" not only has been interpreted by various scholars in the
number of books on the subject, but this Court in so many judgments, particularly in the
case of Karimullah v. Shabana and 2 others (PLD 2003 Peshawar 146) has thoroughly
examined this aspect with the following relevant observations, which are hereby
reproduced for the sake of convenience as under:--

"10. We also receive with approval the rationale of the judgment delivered by a
learned Single Judge in case of Anees Ahmad v. Uzma (PLD 1998 Lah. 52),
wherein it was observed thus:--

"the position is summed up in Al-Huidaya:--

if the cruelty is from the side of the husband his realizing a compensation from
the wife for her relinquishment (Khula) is disapproved. If insubordination is from
the wife, in that case, the husband may take back only what property which he
had given to her…….

It was further observed that in case where "Khula" is decreed on the basis of
cruelty the Court may not give any compensation to the husband."

12. On a logical and philosophical dimension of the matter it. can also be argued that a
husband if left unchecked shall apprehend no loss if he, for any reason, develops a
disposition to break the bondage of marriage and resorts to cruelty with a mind to compel
the wife to demand 'Khula' instead of giving her "Talaq". In this way he will secure for
him the benefit of retaining or getting back the dowered property/amount. Such a cruelty
would un-doubtedly be a purpose-oriented one of which the law and Courts must take
notice so as to keep the husband off the ache of cruelty.

13. Thus on the consensus of opinion of the notable jurists of Islam referred above with
the breviate of their respective commentaries and in the light of the cited judgments we
legitimately feel to hold that where the Court, through a legal, cogent and convincing
evidence, comes to an irresistible conclusion that the husband because of his
machismonian attitude and displaying his masculine aggressiveness has compelled the
wife to ask for dissolution of marriage on the ground of 'Khula' then the Court shall have
the power to refuse the return of the dowered property/amount to husband or to release
him from the liability of payment of dower. "

The restoration of dowered property in case of Khula in the light of the dictate of Quran,
the sayings ,of Prophet (P.B.U.H.) and the interpretations of the various Muslim Jurists
could thus be summed up briefly in the context that if a husband by his cruel attitude
compels the wife to seek Khula, keeping behind the purpose of taking back the dowered
property given by him to the wife, in that case he would not be entitled to its restoration,
but if the attitude of the wife is not good towards her husband and she is reluctant in the
performance of her marital obligations or becomes unfair in keeping her modesty, in that
case the husband would be entitled to the restoration of the dowered property and same is
the crux of the judgment of this Court delivered in the case, referred above.

6. Therefore, in our view, the word Khula' should be construed as subject to the
presumption that the legislature does not intend, by its general language, to subvert the
established principles of Shariah on the subject and has left it for the Family Courts to
decide whether to dissolve the marriage between the spouses on the ground of Khula or
not. If from the plaint submitted by the wife, the only prayer of the wife is to dissolve her
marriage on the ground of Khula, then the Family Court under added provisos to sections
9 and 10 of the Family Courts Act, 1964 could dissolve the marriage between them on the
ground of Khula and could also order for the restoration of the Haq Mehr received by the
wife in consideration of marriage, but if the claim of the wife is based on other grounds
also, such as cruelty etc., then the Family Courts shall proceed with the case in
accordance with law to determine by recording of evidence that the fault lies in which of
the parties and which of the parties are entitled to it.

7. In this case, the learned Judge Family Court vide order dated 26-2-2004 has not only
dissolved, the marriage between the parties without specifying as to whether the marriage
is being dissolved on the ground of Khula or otherwise, but a look at the plaint of the
petitioner/wife would also reveal that she has not at all asked for 'Khula' divorce and
merely sought it on the grounds of cruelty, non-maintenance, non-payment of dower,
desertion/separation for more than one and a half year and failure upon
respondent/husband to perform his marital obligation without any reasonable cause,
reason and fault on the part of petitioner/wife. In such a situation, if the learned Judges of
the Family Court are correct in dissolving the marriage between the spouses in the pre-
trial conciliation proceedings by invoking the provisions of the added proviso to section
10 of the Family Courts Act, 1964, they are wrong on the point of restoration of the
dowered property, because neither the case would be proceeded only for adjudging the
entitlement of the husband to the restoration of the Haq Mehr, nor the issue of dower
would become redundant, but it would proceed for proper determination of the
entitlement of both the parties to the receipt of dower even if the marriage is dissolved on
the ground of Khula.

8. For the aforesaid reasons, we accept this writ petition and set aside both the impugned
orders of the learned Family Court with the directions to proceed with the case in
accordance with law and the observations made hereinabove. No order as to costs. The
parties are directed to appear before the Family Court on 2-12-2004.

9. The office is directed to send copies of this judgment to all the District Judges and
Family Courts in the Provinces for future guidance.

H.B.T./554/P Case remanded.

2005 M L D 1514

[Lahore]

Before Muhammad Muzammal Khan, J

Syed TARIQ ALI through General-Attorney and 2 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 3 others---Respondents

Writ Petition No.3551 of 2004, decided on 2nd June, 2005.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---

Suit for recovery of dower amount, dowry articles and maintenance---All three cases
were consolidated by Family Court and consolidated issues were framed---Cases were
fixed for cross-examination of witnesses of plaintiffs, but counsel for defendants having
failed to appear, ex parte proceedings were initiated against defendants and case was
adjourned for ex parte arguments---Application for setting aside ex parte proceedings
filed by defendants was dismissed and Family Court after hearing ex parte arguments
decreed all three suits vide ex parte judgment/decree---Appeal filed by defendants against
judgment and decree of Family Court having been dismissed by Appellate Court,
defendants had filed Constitutional petition---Validity---Interim order of Family Court
had revealed that defendants were allowed five opportunities to cross-examine witnesses
of plaintiffs but on each occasion, needful was not done---On one occasion adjournment
was granted subject to payment of heavy costs, but despite that none had appeared on
behalf of defendants, whereafter no other option was left with the Family Court except to
proceed ex parte---ln absence of any sufficient cause for non-appearance of defendants or
anybody else on their behalf, ex parte proceedings could not have been set aside---
Plaintiffs had produced ex parte evidence in support of their claim in plaints and they had
proved their entitlement to maintenance allowance, outstanding dower amount and of
dowry articles lying with the defendant---Both Family Court and Appellate Court had not
committed any illegality and judgments returned by both Courts were not
arbitrary/fanciful---Just decision taken by a competent Court within the ambit of
conferred jurisdiction, could not be substituted in Constitutional petition.

Raja Ikram Ameen Minhas for Petitioners.

Abdur Rasheed Sheikh for Respondents.

ORDER

Instant Constitutional petition prayed judgments/decrees dated 25-9-2003 and 26-11-

2004 passed by respondent Nos.1 and 2 to be declared illegal, void and of no legal
consequence, whereby suits of the respondents Nos.3 and 4 were decreed, and appeal of
the petitioners was dismissed, respectively.

2. Succinctly, relevant facts are that Mst. Nadia Maqbool (respondent No.3) was married
with petitioner No.1 on 28-4-1996 according to Muslim rites through registered
Nikahnama. This wedlock gave birth to a daughter on 1-3-1997 who was named as Mst.
Hafiza (respondent No.4). Relations between the spouses did not remain cordial and
ultimately ended in divorce. Respondent No.3 filed three different suits, one for recovery
of dower amount, the other for recovery of maintenance allowance for herself and for the
minor daughter and the third for the recovery of dowry articles. All the three suits were
consolidated by the learned Judge Family Court and consolidated issues were framed out
of controversial pleadings of the parties.

3. The cases were fixed for 19-7-2003 for cross-examination of the witnesses of the
respondent No.3 and 4 but the learned counsel for the petitioners did not appear resulting
in initiation of ex parte proceedings against them and the case was adjourned for ex parte
arguments to 25-7-2003.

4. On 2-9-2003 the petitioners filed an application for setting aside the ex parte
proceedings, which was contested by respondents Nos.3 and 4 and was ultimately
dismissed vide order dated 17-9-2003. The learned Judge Family Court who was
cognizant of the matter after hearing the ex parte arguments, decreed all the three suits
filed by respondents Nos.3 and 4 vide ex parte judgment/decree dated 25-9-2003.
Respondent No.4 was granted maintenance allowance at the rate of Rs.2000 per month
from the date of institution of the suit till her marriage. Respondent No.3 was granted
maintenance allowance from April, 1998 till the expiry of her Iddat period. Similarly, the
respondent No.3 was granted decree for an amount of Rs.25,000 as outstanding dower
amount and her suit for recovery of dowry articles was decreed as per list "Mark-B" or an
equal amount in lieu thereof.

5. Petitioner aggrieved of the decision of the respondent No.2 (the learned Judge Family
Court), filed an appeal before the learned Additional District Judge (respondent No.2) but
remained unsuccessful as the same was dismissed on 26-11-2004. Thereafter the instant
Constitutional petition was filed wherein respondents Nos.3 and 4 appeared in response
to notice by this Court and are represented through their counsel.

6. The learned counsel for the petitioner submitted that the petitioner's counsel on 19-7-
2003 was busy before another Court when in his absence respondent No.1 hurriedly
proceeded to initiate the ex parte proceedings against the petitioner No.1 and adjourned
the case in his absence. According to him, an associate of the counsel for the petitioner
noted the next date as 2-9-2003 but the same was interpolated/forged by converting the
same as 25-7-2003. It was further submitted that the petitioner's counsel when appeared
on 2-9-2003, came to know about the ex parte proceedings hence application for setting
aside the same. It was moved with sufficient cause/explanation for non-appearance on 19-
7-2003 but the same was incorrectly dismissed. It was further argued that all the three
suits by respondents Nos.3 and 4 were incorrectly decreed on the basis of ex parte
evidence, which did not prove their entitlement to the decrees passed. It was further
submitted that the trial Court erroneously disallowed the counsel for the petitioners for
the right of cross-examination of the witnesses produced by respondents Nos.3 and 4,
hence, the judgment/decrees thus, passed deserved to be declared as prayed. It was also
contended on behalf of the petitioner that respondent No.3 could not prove her list of
dowry articles handing over of articles mentioned therein or price of those articles by
producing the receipts etc., hence, her suit for dowry articles deserved dismissal. It was,
further emphasized on behalf of the petitioner that respondent No.3 brought nothing on
the file to prove her right of maintenance from April, 1998. It was further argued that
respondent No.3 remained arrogant during the subsistence of marriage, thus, was not
entitled to maintenance allowance.

7. The learned counsel for the respondents No.3 and 4 refuted the arguments of the
petitioner, supported the concurrent judgments of respondents No.1 and 2 and urged that
the petitioners intentionally remained absent on 19-7-2003 and deliberately did not come
forwarded to cross-examine the witnesses of the respondents Nos.3 and 4. Further
contended that the petitioners were afforded an opportunity for cross-examination but
they failed, leaving no option with the learned Trial Judge except to proceed ex parte,
against them. Allegations of interpolation/change of date from 2-9-2003 to 25-7-2003
was specifically denied by the learned counsel for the respondents, by referring to the
daily dairy of the learned counsel for the petitioners, wherein, the cases filed by the
respondents No.3 and 4 were mentioned on 25-7-2003. It was also assertively argued that
the respondents had proved their right to the decrees passed by respondent No.1, which
were passed according to the evidence, produced by them.

8. I have minutely considered the respective arguments of the learned counsel for the
parties and have examined the record appended herewith. Interim order of the learned
Judge Family Court revealed that the petitioners were allowed 5 opportunities to cross-
examine the witnesses of respondents Nos.3 and 4 but on each occasion, the needful was
not done. On one occasion adjournment was granted subject to payment of Rs.1500 as
costs. Even on 19-7-2003 in spite of specifying time i.e. 11-00 a.m. for taking up the case
none had appeared on behalf of the petitioners whereafter there was no other option with
the trial Judge except to proceed ex parte. Petitioners thereafter did not approach the
Court till 2-9-2003 when an application was moved for setting aside the ex parte
proceedings with the plea that they were given next date as 2-9-2003 but in. the interim
order this date was changed to 25-7-2003. No explanation whatsoever for absence of the
petitioners or their counsel on 29-7-2003 was given in the application. In absence of any
sufficient cause for non-appearance of the petitioners or anybody else on their behalf on
19-7-2003, ex parte proceedings could not have been set aside. Assertions of the
petitioners regarding change of date from 2-9-2003 to 25-7-2003 is not made out from the
record and is belied from the daily diary of his counsel wherein these cases were noted to
be fixed for hearing on 25-7-2003. Above all explanation of the petitioners now furnished
for absence of his counsel is that he was busy before another Court but was not
mentioned in the application for setting aside the ex parte proceedings. In para. 3 of the
application it was clearly mentioned that on 19-7-2003 clerk of the counsel appeared
before the Court and Reader conveyed him the next date as 2-9-2003. The petitioners did
not produce any affidavit of the counsel regarding his professional pre-occupation before
some other Court or that of his clerk about the fact that he noted the next date of hearing
as 2-9-2003. This brings me to hold that stance taken by the petitioners for their absence
was after thought and they brought nothing on file to rebut presumption of correctness
attached to interim orders inscribed by the learned Judge Family Court on his file. I am
not ready to accept on the basis of vague averments that the next date as mentioned in the
order dated 19-7-2003 was changed or interpolation.

9. Respondents Nos.3 and 4 produced ex parte evidence in support of their claim in the
plaint and they proved their entitlement to maintenance allowance, outstanding dower
amount and of dowry articles lying with petitioner No.1. The petitioners did not deny in
their written statement that respondent No.3 was not given any dowery article at the time
of marriage. Petitioner No.1 evaluated the articles at Rs.10,000 to Rs.15,000 only besides
urging that respondent No.3 took along with her valuable articles jewellery etc. Tenor of
the written statement proved that respondent No.3 was given dowry articles which was
proved by her while appearing in the witness-box. Since, there was no rebuttal to the
evidence of the respondent No.3, which included the documentary evidence in form of
Nikahnama "Mark-A", list of dowry articles "Mark-13", receipt of jewellery articles
"Mark-D" and other receipts about purchase of dowry articles "Mark-E", hence, all the
three suits were correctly decreed. Petitioner No. 1 who is living in France where he is
employed, was under legal, social and religious obligation to pay outstanding dower of
respondent No.3 besides paying maintenance allowance to her till Iddat period. Likewise
the payment of maintenance allowance to respondent No.4 is his obligation from which
he cannot resile. A school going child of the age of 8 years needs schooling which
involved tuition fee, books, uniform etc. besides feeding and medicine. In this age of
inflation/dearness maintenance at the rate of 2000 per month is not excessive/exorbitant,
for a person employed abroad. Examination of list of dowry articles "Mark-A" revealed
that nothing unusual was mentioned therein and the price of those articles have been
proved through receipts. Respondent No.3 simply claimed a decree for recovery of dowry
articles and in the alternative for an amount of Rs.2,00,000 as value of those, which
cannot be held, to, be excessive.

10. For the reasons noted above, none of the respondents Nos.1 and 2 committed any
illegality and the judgments thus returned by them are not arbitrary/fanciful. Under law, a
just decision taken by a competent Court within the ambit of conferred jurisdiction
cannot be substituted on this petition which being devoid of any force is accordingly
dismissed with no order as to costs.

H.B.T./T-90/L Petition dismissed.

2004 Y L R 130

[Peshawar]

Before Talaat Qayum Qureshi and Ijaz-ul-Hassan Khan, JJ

MUSHTAQ AHMAD---Petitioner

Versus

Mst. NEELAM and 2 others---Respondents

(a) Writ Petition No.774 of 2003, decided on 19th September, 2003.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---Constitution of Pakistan. (1973), Art. 199--- Constitutional petition---

Maintenance allowance, recovery of---Such allowance was claimed by wife and minor
children---Family Court decreed the suit against the husband---Validity---Wife is entitled
to claim maintenance if she is forced to live apart from the husband on account of the acts
of cruelty by the husband---Maintenance is neither a nature of gift nor a benefit but is an
undeniable legal obligation of-the husband to maintain his wife when she is not staying
away without any justifiable reason---Judgment and decree passed by the Family Court
was recorded in the light of material on record and no case 'of misreading or non-reading
of .evidence had been made out---Mere fact that no finding had been returned on issue
pertaining to payment or otherwise of dower amount by itself was not sufficient to annul
the judgment and decree in exercise of Constitutional jurisdiction--Constitutional petition
was dismissed in limine.

(b) Constitution of Pakistan (1973)-----

----Art. 199---Constitutional jurisdiction of High Court---Scope---Appraisal of

evidence---Finding of fact recorded by Court of competent jurisdiction--Interference by
High Court ---Principles--Appraisal of evidence is function of Trial Court which is
invested with the exclusive jurisdiction---Finding of fact recorded by Trial Court cannot
be interfered with in Constitutional jurisdiction when such finding is not shown to be
based on misreading or non-reading of material evidence and reasons have been given in
support of the conclusion arrived at---Order passed by the Court below cannot be
interfered with in Constitutional jurisdiction unless the same is arbitrary, perverse or the.
Court below has acted in excess of its jurisdiction.

Khalil Ahmad v. Allah Rakhi and another 1994 MLD 119 and Abdul Faheem v. Mst.
Shahnaz Begum and another 2003 CLC 1450 rel.

Yousaf Khan Yousafzai for Petitioner.

Nemo for Respondents.

Date of hearing: 19th September, 2003.

JUDGMENT

IJAZ-UL-HASSAN KHAN, J.--Mushtaq Ahmad, petitioner married Mst. Neelam

respondent in December, 1994 and gold weighing 10 Tolas is stated to have been fixed as
dower. After marriage, the relations between the couple started deteriorating which
obliged the wife to file a suit before Senior Civil Judge/Judge Family Court, Swat for
dissolution of marriage, recovery of dower, recovery of maintenance allowance and
return of dowry articles. The allegations of the wife enumerated in her plaint were denied
by the husband and she was claimed to have left the husband's house without any lapse
on the husband's part. Issues were formulated and parties were afforded opportunity to
produce evidence in support of their respective contentions. The suit was allowed vide
judgment and decree dated 20-5-2003 which has caused annoyance to the petitioner and
he has approached this Court by way of filing instant writ petition under Article 199 of
the Constitution of the Islamic Republic of Pakistan, 1973, with the prayer that the
aforesaid judgment and decree be declared illegal, against law and without lawful
authority.

2. Mr. Yousaf Khan Yousafzai, Advocate, appearing on behalf of the petitioner mainly
contended that evidence in this case has not been properly assessed and evaluated which
has resulted in manifest injustice and that failure on the part of the learned trial Judge to
give finding on Issue No.4, relating to payment of dower, has resulted in miscarriage of
justice. He also argued that decision on Issues Nos.6 and 7 is erroneous for the reason
that having held 'that the parties cannot live within the limits of God' the marital tie
should have been broken by way of 'Khula' with direction to the wife to return all the
benefits to the husband.

3. It needs no reiteration that a wife is entitled to claim maintenance for herself and for
her children if she is forced to live apart from the husband on account of the acts of
cruelty to the husband. The maintenance is neither a nature of gift or a benefit but is an
undeniable legal obligation of the husband to maintenance his wife when she is not
staying away from him without any justifiable reason. Adverting to, the question,
regarding appreciation of evidence, it is not denied that appraisal of evidence is the
function of the Family Court which is invested to it with the exclusive jurisdiction.
Finding of fact recorded by it cannot be interfered with in writ jurisdiction where it is not
shown to be based on misreading or non-reading of material evidence and reasons have
been given in support of the conclusion arrives at. An order passed by the Court below
cannot be interfered with in writ jurisdiction unless the same is mala fide arbitrary,
perverse or the Court has acted in excess of its jurisdiction. Khalil Ahmad v. Allah Rakhi
and another 1994 MLD 119 Lahore and Abdul Faheem v. Mst. Shahnaz Begum and
another 2003 CLC 1450 Peshawar.
4. The impugned judgment and decree has been recorded in the light of the material on
record and no case or misreading or non-reading of evidence .on record has been made
out. The mere fact that no finding has been returned on Issue No.4 pertaining to payment
or otherwise/dower amount, by itself is not sufficient to annul the impugned judgment
and decree in exercise of our Constitution at jurisdiction. The writ petition is without
merit. The same is dismissed in limine.

M.H./948/P Petition dismissed.

2004 Y L R 1826

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD MUSTAQEEM---Petitioner

Versus

Mst. SHAHEEN AKHTAR and others---Respondents

Constitution Petition No.S-76 of 2003, decided on 21st February, 2003.

(a) West Pakistan Family Courts Act (XXXV of 1964)----

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---

Suit for dissolution of marriage, payment of maintenance and dower---Plaintiff herself
appeared in Court to depose in support of her pleadings and by leading adequate evidence
had fully proved maltreatment of husband towards her, non-maintenance and
non-payment of dower amount to her---Wife was duly cross-examined by defendant, but
her evidence on said points remained unshaken---Defendant on the other hand opted not
to lead any evidence before Trial Court in rebuttal---Family Court and Appellate Court, in
circumstances had rightly decreed the suit---In absence of any perversity, illegality or
infirmity, concurrent judgments and decrees of Courts below, could not be interfered with
by High Court in exercise of its Constitutional jurisdiction.

(b) Constitution of Pakistan (1973)-----

----Art. 199---Constitutional jurisdiction, exercise of---Constitutional jurisdiction was

discretionary in nature which was meant to foster justice and to remedy the wrong, but
could not be allowed to be invoked in routine course as an additional remedy to hamper
the finding of fact correctly recorded by forums below.

S.M. Zafar for Petitioner.

Date of hearing: 21st February, 2003.

ORDER

This petition is directed against the judgment dated 8-12-2001 and decree dated
10-12-2001 passed by the learned Xth Civil and Family Judge, Karachi Central, in
Family Suit No.229 of 2001, whereby the suit filed by respondent No.1 for dissolution of
marriage, maintenance, and dower amount was decreed. Family Appeal No.3 of 2002, by
which the petitioner challenged the impugned judgment and decree was also dismissed by
learned District Judge, Karachi Central vide judgment dated 19-12-2002.
2. Brief facts forming background of the case are that respondents Nos.1 and 2 filed a suit
for dissolution of marriage, maintenance, and dower amount, pleading therein that
respondent No.1 was married to the petitioner on 21-3-1996 on fixed dower of Rs.25,000.
At the time of marriage plaintiff/respondent No.1 was given dowry articles worth
Rs.1,50,000, by her parents which were lying with the petitioner. On account of harsh and
insulting behaviour on the part of petitioner, respondent No.1 was compelled to remain in
her parents' house but was never paid any maintenance by the petitioner. Accordingly she
prayed for (i) dissolution of marriage, (ii) for payment of a sum of Rs.25,000 as dower,
(iii) past maintenance and Rs.5000 w.e.f. May, 1998 for both respondents and future
maintenance at the same rate till the period of 'Iddat' for respondent No.1 and for
respondent No.2 till she got married.

3. The petitioner in his written statement denied the allegations and claim of the
respondents. It was pleaded that the dower amount was paid to the respondent No. 1/wife
in the shape of golden bracelet and further that the petitioner used to pay Rs.1500
whenever he visited the respondents. It was alleged that respondent No.1 was prevented
by her parents not to reside with the petitioner, as their attitude with the petitioner was
unfair.

4. All the issues which were relevant and necessary for proper adjudication of the dispute
were framed, after failure of pretrial. Consequently the trial commenced.

5. Respondent No.1 examined herself in support of her contentions and was cross
examined. However, no evidence was led by the petitioner before the Family Court.

6. On the, basis of evidence adduced and the documents filed on record learned Family
Court decreed the suit of respondents Nos.1 and 2 vide judgment dated 8-12-2001.

7. The said judgment was upheld in Family Appeal No.3 of 2002 by the learned District
Judge, Karachi Central vide his judgment dated 19-12-2002.

8. Learned counsel for the petitioner has been heard at length.

9. It was contended that the findings recorded by the trial Court were perverse and against
the evidence inasmuch as that the factum of cruelty was not proved to dissolve the
marriages. It was next argued that quantum of maintenance granted by the trial Court was
not founded on the evidence. The judgment passed by the learned Appellate Court was
attacked on the ground that the same was passed without affording proper opportunity of
hearing to the petitioner/appellant and that it was grossly; lacking in proper appraisal of
evidence, thus the same was without lawful authority.

10. Arguments rendered by learned counsel for the petitioner have been carefully
considered.
11. Perusal of the judgment passed by the trial Court reveals that sufficient evidence was
available on record before learned Family Court. The judgment shows that the pleadings
of maltreatment, non maintenance and non-payment of dower amount were proved by
way of leading adequate evidence. Respondent No.1 herself appeared in the witness-box
to depose in support of the pleadings. She was duly cross-examined on behalf of the
petitioner but her evidence on the above points remained unremittingly unrelenting.

On the other hand the petitioner opted nor to lead any evidence before the trial Court, to
shake up the unscathed evidence adduced on behalf of respondent No. 1. On perusal of
the judgment passed by the Appellate Court it transpires that learned counsel for the
petitioner/appellant chose to, submit written arguments instead of making oral
submissions. The judgment of the Appellate Court clearly and abundantly shows that the
evidence on record was properly examined in light of the arguments raised on behalf of
the petitioner, as will be evident from perusal of para. 7 of the appellate judgment.

12. On scrutiny of the judgments passed by the two Courts below, no perversity, illegality
or infirmity was I noticed. Needless to mention that. Constitutional jurisdiction is
discretionary jurisdiction which is meant to foster justice and to remedy the wrong but
could not be allowed to be invoked in routine course as an additional remedy to hamper
the findings of fact, correctly recorded by the forums below.

The petition being without merit is dismissed in limine alongwith all the listed
applications.

H.B.T./M-43/K Petition dismissed.

2002 Y L R 3386

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

Mst. ZATOON---Appellant

Versus

SABIR HUSSAIN and 3 others---Respondents

Civil Appeal No.30 of 1999, decided on 7th June, 2002.

(a) Azad Jammu and Kashmir Family Courts Act, 1993---

----Ss.5, Sched. & 21-A(b)---Suit for dissolution of marriage on ground of Khula'---

Plaintiff wife sought dissolution of marriage on various grounds including cruelty, non-
payment of dower, non-maintenance, false charge of being a bad character and oral
divorce---Plaintiff alternatively sought a decree on basis of Khula' and defendant filed
cross-suit for, restitution of conjugal rights--Trial Court after framing additional issue on
ground of Khula' decreed the suit for dissolution of marriage and dismissed the suit for
restitution of conjugal rights holding that it was no more possible for spouses to live
together within limits ordained by Almighty Allah---Defendant filed appeal before
Appellate Court against judgment, of Trial Court alongwith application for recording
evidence on additional issue of Khula', which application was dismissed up to High
Court--Appellate Court remanded case to Trial Court with observations that as additional
issue with regard to Khula' was framed without an amendment in the plaint and defendant
was not afforded opportunity of hearing, judgment of Trial Court was not maintainable,
which could be decided afresh---Validity---Case of Khula' could be trade out despite plea
of Khula' was not taken in plaint nor issue in that respect was framed ---Khula' being a
legal issue could be raised in Trial Court or at appellate stage without introducing an
amendment in pleadings and further evidence, especially when plaintiff had specifically
stated that because of fixed aversion it had become impossible for her to live with
defendant---Contention that Khula' being mixed question of fact and law, same could not
be allowed to annul marriage without amendment in pleadings, was repelled--Plaintiff
wife who after decree of dissolution of marriage had contracted another marriage and had
given birth to a child, having developed severe hatred towards defendant, it had become
quite impossible for spouses to live together---Marriage was rightly dissolved by Trial
Court in circumstances.

PLD 1984 SC 329, 1993 SCR 330, 2000; YLR 2519; PLD 1978 Lah. 1109; Rayasat Ali
v. Family Court and another 1984 CLC 1325; Khurshid Ali v. Mst. Mumtaz Begum 1980
CLC 1212; Balqees Fatima's case PLD 1959 Lah. 566 and Abdul Karim Khan v. Mst.
Parveen Akhtar and 6 others PLD 1981 Azad J&K 94 ref.
(b) Azad Jammu and Kashmir Family Courts Act, 1993-----

----S. 5 & Sched. ---Dissolution of marriage on ground of Khula'---Principle of Khula'

was to be applied in a liberal manner---When Judge or Qazi reached conclusion that
spouses could not live within limits prescribed by God, then Court would place husband
and wife on equal footing following real spirit of 'Qur'an' while construing classical
incident of 'Sabit-Ben-Qais' that a person or Authority including Qazi, could order
separation by Khula' even though husband would not agree with that course---'Qur'anic
condition must be satisfied by husband and wife that they could not live together in
harmony and in conformity with their obligations.

PLD 1984 SC 329 ref.

K.D. Khan for Appellant.

Raja Muhammad Hanif Khan for Respondents.

ORDER

This appeal was basically preferred before the High Court which was later on transferred
to this Court under section 21-A(B) of Azad Jammu and Kashmir Family Courts Act,
1993. Through this appeal the appellant, wants reversal of the judgment of District Judge,
Muzaffarabad passed on 31-1-1993, whereby the file was remanded to Sub-Judge
Muzaffarabad for afresh decision.

The facts precisely stated are that Mst. Zatoon Begum, appellant herein, brought a suit in
the Court of Additional Sub-Judge, Muzaffarabad on 7-11-1984 seeking dissolution of
marriage on various grounds including cruelty, non-payment of dower, non maintenance,
false charge of bad character and oral divorce etc. In alternative she sought a decree on
the basis of `Khula". Sabir, respondent herein, filed a cross-suit for the restitution of
conjugal rights alleging that the appellant has left his house with household articles
golden ornaments and a cash of Rs.36,000. During the judgment, the learned Sub-Judge
felt it expedient to frame an additional issue in the light of the application filed by the
appellant. In this manner, an additional issue No.10-A was framed. Sub Judge held that it
was no more possible for the spouses to live together within the limits ordained by
Almighty Allah, thus, dissolved the marriage on the basis of `Khula' on return of golden
ornaments worth Rs.500 given to the appellant at the time of `Nikah'. Consequently, the
cross-suit for restitution of conjugal rights was dismissed. Feeling aggrieved, the
respondent filed an appeal before District Judge Muzaffarabad on 7-5-1988. During the
pendency of appeal, the respondent presented an application for recording of evidence on
additional issue of `Khula' which was dismissed by Additional District Judge
Muzaffarabad vide its order dated 6-12-1989. Feeling dissatisfied, the respondent filed a
revision petition against the said order of Additional District Judge, Muzaffarabad which
was also dismissed by the High Court vide its order dated 31-3-1990. After that the
District Judge Muzaffarabad remanded the case to the Court below observing that
Additional Issue No. 10-A was framed without an amendment in the plaint and the
respondent was also not afforded an opportunity of hearing, therefore, the judgment of
the Court below was not maintainable, vide its order/judgment dated 31-1-1993. It is the
aforesaid judgment which has been assailed through the instant appeal.

It is contended by, the appellant that the Court below was competent to frame an issue
and consider the material already place on the record, therefore, District Judge was not
justified to hold that a decree for dissolution of marriage could not be passes without an
amendment in the plaint. According to the appellant when the conscious of the Judge felt
satisfied that the spouses cannot live a peaceful life within the limits ordained by
Almighty Allah, the marriage has to be dissolved. It is further averred that after dismissal
of an application for evidence on additional issue by Additional District Judge
Muzaffarabad and the revision petition challenging the same by the High Court, the
District Judge was not at all empowered to pass an order contrary to the order mentioned
above. It is also stated that after decree of dissolution of marriage the appellant has
contracted a second marriage with Hamid-ullah and she has given birth to three children
but the District Judge has ignored all material facts and passed the impugned order in a
hasty manner which is not sustainable.

Mr. K.D. Khan, Advocate, the learned counsel for the appellant vigorously argued that
the Court below has committed an error by remanding the case for an amendment in the
plaint because Sub-Judge was quite competent to annul the marriage on the basis of
`Khula' when he arrived at the conclusion that according to the circumstances it was
never possible for the 'spouses to live together within the limits ordained by the 'Sharia'.
The learned counsel also contended that after dismissal of the application for evidence on
the additional issue by the Additional District Judge and revision petition by the High
Court, District Judge was not at all competent to pass an order of remand contrary to the
order of the High Court already refusing to afford an opportunity to the respondent for
further evidence. The learned counsel for the appellant maintained that in view of
allegations of false charge of bad character levelled against the appellant by the
respondent and for giving birth to an illegitimate child, fact of civil and criminal litigation
between the parties, handing over of the appellant to a third person as "Superdari", the
habitual assault and cruel treatment of the respondent with the appellant was sufficient for
annulment of the marriage between the spouses. According to him, the trial Court was
justified to pass a decree for dissolution of marriage which could not be interfered with.
The learned counsel pointed out that the appellant has contracted another marriage and
has given birth to five children, therefore, it has become impossible for the spouses to
live together. He prayed to set aside the impugned judgment. In support of his contention,
he has relied upon the following authorities:-

(i) 1980 CLC 1212.

(ii) PLD 1981 Azad J&K 94.

(iii) PLD 1984 SC 329.

(iv) 1993 SCR 330

(v) 2000 YLR 2519.

Raja Muhammad Hanif Khan, Advocate, the learned counsel for the respondent, has
controverted the arguments raised by the learned, counsel for the appellant. He has
submitted that the trial Court fell in error while passing a decree for dissolution of
marriage on the basis of 'Khula' and it ignored the fact that appellant/plaintiff neither
raised any plea of 'Khula' in her plaint nor an issue was framed in this respect. The parties
were also not afforded an opportunity to lead their evidence on the additional issue but
the trial Court ignored all these facts and framed an additional issue at the tune of the
recording of the judgment which is erroneous and against the admitted principle of
procedure. He has further argued that the plea of `Khula' is not only a question of law but
it is also a question of fact, therefore, it was incumbent upon the Sub-Judge Muzaffarabad
to give a chance to the parties to lead their evidence on issue of `Khula'. The learned
counsel defended the impugned judgment on all counts. In support of the arguments
reliance was placed on PLD 1978 Lahore 1109.

I have carefully taken into consideration the points canvassed by the learned counsel for
the parties, after perusing the record made available with care. At the very outset it will
be relevant to note that District Judge was not competent to pass the impugned judgment
and remand the case for an amendment in the plaint when the matter was already
resolved by Additional District Judge and the High Court by not allowing the respondent
to lead his evidence on the additional issue No. 10-A.

It will be pertinent to note that Additional District Judge in its order dated 6-12-1989 has
recorded its finding in an unequivocal manner that the issue of `Khula' is legal one,
therefore, the trial Court was empowered to dissolve the marriage on the basis of 'Khula'
even without framing an issue. The perusal of the said order also reveals that according to
the learned Additional District Judge sufficient evidence to resolve the issue of `Khula' is
available on the record, therefore, a chance of adducing more evidence cannot be given to
the respondent. The same finding was upheld by the High Court, therefore, the District
Judge was not empowered to disturb the abovementioned findings which have already
attained finality in the light of order dated 31st March, 1990 recorded by the Chief Justice
of High Court, Mr. Abdul Majeed Mallick, as he then was. Even otherwise in the case of
`Khula' marriage can be dissolved without amendment in the plaint and without framing
an issue.

It will be relevant to note here that although the appellant did not raise plea of `Khula'
specifically in her plaint but in the cross-suit for restitution of conjugal rights filed by the
respondent, the appellant in her written statement not only refuted the averments of Para.
No.5 of the cross-suit but she categorically pointed out that now it has become impossible
for appellant to live with the respondent because she has developed fixed aversion and
hatred against the respondent. Therefore, the mistake of the Court should not prejudice
the appellant and the appellant may not be left to, suffer because of the negligence of the
Court not to frame in issue in the light of the pleading of the parties especially when both
the suits were consolidated.
I may observe that the principle of `Khula' is applied in a liberal manner by the Superior
Courts of Azad Jammu and Kashmir and Pakistan now-a-days i.e. when Judge or Qazi
reaches the conclusion that the spouses cannot live within the limits prescribed by God
then the Court places the husband and wife on an equal footing following the real spirit of
`Qur'an' while construing the classical incident of Sabit-Ben Qais that a person or
authority including Qazi can order of separation by `Khula' even the husband does not
agree with that course. However, 'Qur'anic' condition must be, satisfied by the husband
and the wife that they cannot live together in harmony and in conformity with their
obligations.

(PLD 1984 SC 329)

In a case reported as Rayasat Ali v. Family Court and another (1984 CLC 1325), it was
observed that Family. Court was competent to grant `Khula', even if no such prayer was
made in the plaint and an issue regarding ground of `Khula' was not framed, if case of
`Khula' is made out on the basis of evidence on record.

In case reported as Khurshid Ali v. Mst. Mumtaz Begum (1980 CLC 1212), it was opined
that the Court is competent to consider circumstances whether marriage be dissolved on
principle of `Khula', even if such ground was not taken in the plaint. It was further held
that it is for the Judge to consider whether in a given circumstance even if the ground of
which resolution is required has not been proved whether the marriage should be
dissolved on the principle of `Khula' subject to the limitation laid down in Balqees
Fatima's case (PLD 1959 Lahore 566), in which the High Court in second appeal allowed
the case to be argued on new point that `Khula' was right of the wife. It was also clarified
that important limitation on the point of `Khula' of wife is that, it is only when the Judge
apprehends that the limits of God will not be observed in their relations towards one and
another.

In, the case titled Abdul Karim Khan v. Mst. Parveen Akhtar and 6 others (PLD 1981
Azad J&K 94), it was held that relief flowing from proved facts, cannot be denied strictly
speaking, this cannot be called an omission in true sense of the term. Similarly, where a
statement of facts is disclosed and parties lead evidence in support and rebuttal, failure of
party to get an issue framed or negligence of the Court to constitute an issue, would not
render incompetence to grant relief flowing from the proved facts. It was further observed
that `Khula' is a legal issue, it may be raised in the pleading, in the trial Court or at
appellate stage, in presence of evidence relating to dower, it may be decided without
introducing amendment in the pleadings and further evidence.

Bilqees Fatima's case (PLD 1978 Lahore 1109) referred to by the learned counsel for the
respondent also supports the case of the appellant instead of the respondent. This report
was also followed in Khurshid Ali's case (1980 CLC 1212) referred to above.

From the above survey of case law, it has become crystal clear that the ease of 'Khula' can
be made out despite that plea of `Khula' was not disclosed in the plaint or an issue was
not framed but when by 'the statement of facts disclosed in the pleading without definite
and specific ground or 'Khula' or on proof of such facts which come forward during the
course of evidence `Khula' being a legal issue can be raised in the trial Court or at
appellate stage without introducing an amendment in the pleading and further evidence
but in the instant case the appellant has specifically pointed out in her written statement
in the cross-suit that because of the fixed aversion it has become impossible for her to
live with the respondent.

In the present case, Mst. Zatoon pleaded that on account of non-payment of dower,
cruelty, non-payment of maintenance allowance, false charge of bad character, accusation
of being pregnant by an illegitimate child and after pronouncing an oral divorce by the
respondent, she was also ousted from his house. It is also on the record that a criminal
case was registered against her on the complaint of the respondent and she was handed
over to a 'Superdar' Qazi Ashraf Shah. The parties are involved in civil and criminal
litigations. The dower of the appellant Rs.9,500 has yet not been paid by the respondent,
thus, she was forced to develop aversion to her husband. It was recorded by the trial
Court that when the learned Judge asked the appellant in the open Court that if
respondent provides her all the facilities of life like a princess, she refused that under no
circumstance she was inclined to restore the relations with the respondent rather she will
prefer to face the death because respondent has made her life miserable by cruelty of
conduct and physical ill-treatment.

I find little force in this plea of the learned counsel for the respondent that `Khula' being
mixed question of facts of law cannot be allowed to annul the marriage without
amendment in pleadings.

It is very important to point out that the appellant's version has been fully supported by
her witnesses Muhammad Ali, Hameed-Ullah, Sian, Mahwalli, Mir Alam and Shah Walli.
On the other hand, the respondent and his witnesses have admitted the facts of
registration of case and of litigation between the parties.

In such state of affairs wife, appellant has developed severe hatred towards the
respondent and it is quite evident that I spouses cannot live a life of harmony and in
conformity with their obligations. Moreover, the fact that after the decree of dissolution
of marriage the appellant has contracted another marriage and has given birth to five
children, cannot be lost sight off. Therefore, it has become impossible for the spouses to
live together and the marriage was, therefore, rightly dissolved by the trial Court and no
case is made out for interference in this appeal.

H.B.T./35/AJ&K Order accordingly.

P L D 2002 Supreme Court 273

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

MUKHTAR AHMED ---Appellant

Versus

ANSA NAHEED and 2 others---Respondents

Civil Appeal No.583 of 1995, decided on 29th October, 2001.

(On appeal from the judgment dated 27-10-1993 of Lahore High Court in Writ Petition
No. 1660 of 1992).

(a) West Pakistan Family Courts Act (XXXV of 1964)-----

----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Where

marriage was dissolved on various grounds including Khula', then wife would be entitled
to recover dower and dowry, but where it was dissolved solely on the ground of Khula'
then her offer made for getting marriage dissolved on Khula' would be examined---Wife
tiled suit for dissolution of marriage on various grounds viz. cruelty, non-payment of
maintenance, non-performance of marital obligations, impotency of husband and
Khula'---Wife also filed suit for recovery of dowry amount---Family Court decreed the
suit for dissolution of marriage on all such grounds holding that wife in lieu of Khula'
would not be entitled to claim dower, dowry and maintenance ---Husband, in view of
such findings, filed in latter suit an application for rejection of the plaint---Wife filed
application for clarification of judgment and decree, but it was dismissed by Family
Court and its order was maintained by the Appellate Court---High Court accepted
Constitutional petition tiled by wife and set aside the conditions regarding relinquishment
of dower, dowry and maintenance---Contention of husband was that High Court in
exercise of Constitutional jurisdiction could not change judgment and decree passed by
Family Court, especially when the wife had not challenged same and her petition for
clarification had been dismissed by Courts below---Held': wife in her deposition recorded
before Family Court had forgiven only her claim for remaining amount of dower in lieu
of Khula' and had not given up her claim of dowry---Marriage was dissolved on various
'rounds including Khula'---Where marriage was dissolved on other grounds also, then
wife would be entitled to recover amount of dower and dowry, but where it was dissolved
solely on ground of Khula', then situation would be different and it would be examined
keeping in view the offer she had made for getting marriage dissolved on Khula'---
Findings of High Court were correct and not open to any exception--Supreme Court
dismissed the appeal of husband while making it clear that suit tiled by wife for recovery
of dowry amount would be decided on its own merits.

Farida Khanum v. Maqbul Ilahi and 2 others 1991 MLD 1531 ref.
(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Suit for
dissolution of marriage on other grounds and Khula'--Distinction---Woman married under
Muslim Law is entitled to obtain a decree for dissolution of her marriage on anyone or
more of the grounds available under the law---Each ground is separate and enough for
dissolution---If marriage is dissolved on other grounds also, it means that result would
have been the same irrespective of the fact whether plea of Khula' was raised or
not---Legal rights cannot be curtailed by implication.

Habib-ur-Rehman v. The Additional District Judge, Lahore and others 1984 SCMR 1432
ref.

(c) Legal right---

-Legal rights cannot be curtailed by implication.

Ch. Mehdi Khan Chouhan, Advocate Supreme Court and Tanvir Ahmed,
Advocate-on-Record for Appellant.

Ras. Tariq Ch., Advocate Supreme Court and Hamid Aslam Qureshi,
Advocate-on-Record for Respondents.

Date of hearing: 29th October, 2001.

JUDGMENT

NAZIM HUSSAIN SIDDIQUI, J.--This appeal by leave of this Court is directed against
the judgment dated 27-10-1993 passed in Writ Petition No. 1660 of 1992 by a learned
Judge in Chamber, Lahore High Court, Rawalpindi Bench, whereby said petition, tiled by
respondent No.1, Ansa Naheed, was allowed and all the conditions imposed by trial
Court, regarding relinquishment of dower, dowry and maintenance, were set aside.

2. The facts relevant for decision of this appeal are that the respondent No.l on.22-5-1990
had filed a suit for dissolution of her marriage against the appellant on various grounds
viz. cruelty, non-payment of maintenance, nonperformance of marital obligations and
impotency of the appellant. She averred in the plaint that it was not possible for the
patties to live together as husband and wife and she was entitled to divorce on the ground
of Khula' also.

3. The suit was resisted by the appellant. After recording the evidence of the parties,
learned Family Judge passed decree in favour of respondent No.l, dissolving her marriage
from the appellant on the grounds that the latter had failed to perform marital obligations,
treated her with cruelty and failed to maintain her. It was also held that, in any case, she
was entitled to dissolution of marriage on the ground of Khula and in lieu thereof she
would not be entitled to claim dower dowry and maintenance.
4. It appears that during pendency of aforesaid suit, the respondent No. 1 had also
instituted a suit against the appellant for recovery of dowry amount of Rs.4,50,000. After
the marriage was dissolved, the appellant filed an application, under Order VII, Rule 11,
C.P.C. in the latter suit for rejection of the plaint on the ground that, in view of above
findings of the Family Court; the respondent No. 1 was not entitled to claim dower and
dowry from the appellant.

5. Confronted with above situation, the respondent No. l filed an application before the
Family Court seeking clarification of its judgment and decree dated 25-9-1990. It was
rejected and this order was maintained by District Court. Thereafter, the respondent No. l
filed writ petition, which was allowed.

6. It was contended before High Court that the marriage of the respondent No. l was
dissolved not only on the ground of Khula' but also on the grounds of cruelty,
non-maintenance, and non-performance of marital obligations by the appellant and it
being so the condition attached by learned Family Court that the respondent No. 1 would
not be entitled to claim dower, dowry and maintenance was illegal and she could not be
deprived of her right to recover dowry.

7. It is significant to mention here that respondent No. l in her deposition recorded before
Family Court, on this point; stated that on the ground of Khula' she was ready to forego
her claim of Rs.10,000 being remaining amount of Haq Mehr. She, however, never gave
up her claim of dowry.

8. Learned High Court relying upon the dictum laid down in the case reported as Farida
Khanum v. Maqbul Ilahi and 2 others (1991 MLD 1531) upheld the contentions raised on
behalf of respondent No.l and allowed the petition.

9. Vide order dated 17-4-1995, leave to appeal was granted in this, matter to consider the
following:--

“Whether, in absence of any appeal having been filed against the decree for
dissolution of marriage granted in respondent's favour on the basis of Khula' in
which the respondent undertook to surrender dower and dowry and other benefits,
and also which has attained finality, the learned High Court rightly exercised its
Constitutional jurisdiction in declaring that part of the decree to be illegal, without
lawful authority and of no legal effect.”

1. It is contended on behalf of the appellant that High Court, while exercising its
jurisdiction under Article 199 of the Constitution could not change or alter the judgment
and decree passed by Family Court, especially when the respondent No.1 had not
challenged the same and the petitions filed by her for seeking clarification in said
judgment and decree were dismissed both by Family Court and First Appellate Court,
meaning thereby that the same were maintained.
11. We are not impressed with above contention a fact is hat the respondent No.1 had
agreed to forego her claim to the extent of Rs.10,000 only relating to dower. It is an
admitted fact that her marriage with the appellant was dissolved on various grounds,
including Khula'. Once the marriage is dissolved on other grounds also the wife would be
entitled to recover the amount of dower and dowry. If the marriage is dissolved solely on
the ground of Khula' the situation would be different and it would be examined keeping
in view the offer she made for getting marriage dissolved on Khula'. A woman married
under Muslim Law is entitled to obtain a decree for the dissolution of her marriage on
anyone or more of the grounds available under the law. Each ground is separate and
enough for dissolution. If marriage is dissolved on other grounds also it means that the
result would .C have been the same irrespective of the fact that the plea of Khula' was
raised or not. Legal rights cannot, be curtailed by implication. This Court in the

"No case-law has been cited to support that where the dissolution is granted on
grounds including Khula' the wife becomes disentitled to recover the dower
money "

12. Accordingly, we hold that the findings recorded by High Court are correct and not
open to any exception.

13. In consequence, the appeal is dismissed. It is, however, made clear E that the suit
filed by the respondent for recovery of dowry amount would be I decided on its own
merits.

S.A.K./M-320/S Appeal dismissed.

P L D 2002 Supreme Court 273

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

MUKHTAR AHMED ---Appellant

Versus

ANSA NAHEED and 2 others---Respondents

Civil Appeal No.583 of 1995, decided on 29th October, 2001.

(On appeal from the judgment dated 27-10-1993 of Lahore High Court in Writ Petition
No. 1660 of 1992).

(a) West Pakistan Family Courts Act (XXXV of 1964)-----

----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Where

marriage was dissolved on various grounds including Khula', then wife would be entitled
to recover dower and dowry, but where it was dissolved solely on the ground of Khula'
then her offer made for getting marriage dissolved on Khula' would be examined---Wife
tiled suit for dissolution of marriage on various grounds viz. cruelty, non-payment of
maintenance, non-performance of marital obligations, impotency of husband and
Khula'---Wife also filed suit for recovery of dowry amount---Family Court decreed the
suit for dissolution of marriage on all such grounds holding that wife in lieu of Khula'
would not be entitled to claim dower, dowry and maintenance ---Husband, in view of
such findings, filed in latter suit an application for rejection of the plaint---Wife filed
application for clarification of judgment and decree, but it was dismissed by Family
Court and its order was maintained by the Appellate Court---High Court accepted
Constitutional petition tiled by wife and set aside the conditions regarding relinquishment
of dower, dowry and maintenance---Contention of husband was that High Court in
exercise of Constitutional jurisdiction could not change judgment and decree passed by
Family Court, especially when the wife had not challenged same and her petition for
clarification had been dismissed by Courts below---Held': wife in her deposition recorded
before Family Court had forgiven only her claim for remaining amount of dower in lieu
of Khula' and had not given up her claim of dowry---Marriage was dissolved on various
'rounds including Khula'---Where marriage was dissolved on other grounds also, then
wife would be entitled to recover amount of dower and dowry, but where it was dissolved
solely on ground of Khula', then situation would be different and it would be examined
keeping in view the offer she had made for getting marriage dissolved on Khula'---
Findings of High Court were correct and not open to any exception--Supreme Court
dismissed the appeal of husband while making it clear that suit tiled by wife for recovery
of dowry amount would be decided on its own merits.

Farida Khanum v. Maqbul Ilahi and 2 others 1991 MLD 1531 ref.
(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Suit for
dissolution of marriage on other grounds and Khula'--Distinction---Woman married under
Muslim Law is entitled to obtain a decree for dissolution of her marriage on anyone or
more of the grounds available under the law---Each ground is separate and enough for
dissolution---If marriage is dissolved on other grounds also, it means that result would
have been the same irrespective of the fact whether plea of Khula' was raised or
not---Legal rights cannot be curtailed by implication.

Habib-ur-Rehman v. The Additional District Judge, Lahore and others 1984 SCMR 1432
ref.

(c) Legal right---

-Legal rights cannot be curtailed by implication.

Ch. Mehdi Khan Chouhan, Advocate Supreme Court and Tanvir Ahmed,
Advocate-on-Record for Appellant.

Ras. Tariq Ch., Advocate Supreme Court and Hamid Aslam Qureshi,
Advocate-on-Record for Respondents.

Date of hearing: 29th October, 2001.

JUDGMENT

NAZIM HUSSAIN SIDDIQUI, J.--This appeal by leave of this Court is directed against
the judgment dated 27-10-1993 passed in Writ Petition No. 1660 of 1992 by a learned
Judge in Chamber, Lahore High Court, Rawalpindi Bench, whereby said petition, tiled by
respondent No.1, Ansa Naheed, was allowed and all the conditions imposed by trial
Court, regarding relinquishment of dower, dowry and maintenance, were set aside.

2. The facts relevant for decision of this appeal are that the respondent No.l on.22-5-1990
had filed a suit for dissolution of her marriage against the appellant on various grounds
viz. cruelty, non-payment of maintenance, nonperformance of marital obligations and
impotency of the appellant. She averred in the plaint that it was not possible for the
patties to live together as husband and wife and she was entitled to divorce on the ground
of Khula' also.

3. The suit was resisted by the appellant. After recording the evidence of the parties,
learned Family Judge passed decree in favour of respondent No.l, dissolving her marriage
from the appellant on the grounds that the latter had failed to perform marital obligations,
treated her with cruelty and failed to maintain her. It was also held that, in any case, she
was entitled to dissolution of marriage on the ground of Khula and in lieu thereof she
would not be entitled to claim dower dowry and maintenance.
4. It appears that during pendency of aforesaid suit, the respondent No. 1 had also
instituted a suit against the appellant for recovery of dowry amount of Rs.4,50,000. After
the marriage was dissolved, the appellant filed an application, under Order VII, Rule 11,
C.P.C. in the latter suit for rejection of the plaint on the ground that, in view of above
findings of the Family Court; the respondent No. 1 was not entitled to claim dower and
dowry from the appellant.

5. Confronted with above situation, the respondent No. l filed an application before the
Family Court seeking clarification of its judgment and decree dated 25-9-1990. It was
rejected and this order was maintained by District Court. Thereafter, the respondent No. l
filed writ petition, which was allowed.

6. It was contended before High Court that the marriage of the respondent No. l was
dissolved not only on the ground of Khula' but also on the grounds of cruelty,
non-maintenance, and non-performance of marital obligations by the appellant and it
being so the condition attached by learned Family Court that the respondent No. 1 would
not be entitled to claim dower, dowry and maintenance was illegal and she could not be
deprived of her right to recover dowry.

7. It is significant to mention here that respondent No. l in her deposition recorded before
Family Court, on this point; stated that on the ground of Khula' she was ready to forego
her claim of Rs.10,000 being remaining amount of Haq Mehr. She, however, never gave
up her claim of dowry.

8. Learned High Court relying upon the dictum laid down in the case reported as Farida
Khanum v. Maqbul Ilahi and 2 others (1991 MLD 1531) upheld the contentions raised on
behalf of respondent No.l and allowed the petition.

9. Vide order dated 17-4-1995, leave to appeal was granted in this, matter to consider the
following:--

“Whether, in absence of any appeal having been filed against the decree for
dissolution of marriage granted in respondent's favour on the basis of Khula' in
which the respondent undertook to surrender dower and dowry and other benefits,
and also which has attained finality, the learned High Court rightly exercised its
Constitutional jurisdiction in declaring that part of the decree to be illegal, without
lawful authority and of no legal effect.”

1. It is contended on behalf of the appellant that High Court, while exercising its
jurisdiction under Article 199 of the Constitution could not change or alter the judgment
and decree passed by Family Court, especially when the respondent No.1 had not
challenged the same and the petitions filed by her for seeking clarification in said
judgment and decree were dismissed both by Family Court and First Appellate Court,
meaning thereby that the same were maintained.
11. We are not impressed with above contention a fact is hat the respondent No.1 had
agreed to forego her claim to the extent of Rs.10,000 only relating to dower. It is an
admitted fact that her marriage with the appellant was dissolved on various grounds,
including Khula'. Once the marriage is dissolved on other grounds also the wife would be
entitled to recover the amount of dower and dowry. If the marriage is dissolved solely on
the ground of Khula' the situation would be different and it would be examined keeping
in view the offer she made for getting marriage dissolved on Khula'. A woman married
under Muslim Law is entitled to obtain a decree for the dissolution of her marriage on
anyone or more of the grounds available under the law. Each ground is separate and
enough for dissolution. If marriage is dissolved on other grounds also it means that the
result would .C have been the same irrespective of the fact that the plea of Khula' was
raised or not. Legal rights cannot, be curtailed by implication. This Court in the

"No case-law has been cited to support that where the dissolution is granted on
grounds including Khula' the wife becomes disentitled to recover the dower
money "

12. Accordingly, we hold that the findings recorded by High Court are correct and not
open to any exception.

13. In consequence, the appeal is dismissed. It is, however, made clear E that the suit
filed by the respondent for recovery of dowry amount would be I decided on its own
merits.

S.A.K./M-320/S Appeal dismissed.

2002 C L C 1838

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

Maj. (Rtd.).ISHTIAQ MAHMOOD---Petitioner

versus .

Mst. ZAREEN GUL and others---Respondents

Writ Petition No. 15390 of 1997, decided on 25th July, 2002.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S.17---Civil Procedure Code (V of 1908), S.115---High Court does not enjoy any
supervisory jurisdiction under S.115, C.P.C. on the proceedings under West Pakistan
Family Courts Act, 1964.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 9---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961,
R.3---Application for maintenance allowance before Chairman, Arbitration
Council---Chairman, Arbitration Council had no authority in law to grant maintenance
beyond the period applied for.

(c) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 9---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961,
R.3---Constitution of Pakistan (1973), Art :199---Constitutional petition---Application for
maintenance---Divorce had taken place between the parties and both the parties had
remarried---All the three children from the wedlock were brought up by the father who
had retired from service---Nothing was available on record to show the reasonable and
cogent proof of the income of the man who had been in critical financial position for
sometimes and spouses during their married life had to sell some jewellery to overcome
the financial crisis---Chairman, Arbitration Council had not asked the parties questions to
determine their means of income and fixed the maintenance
allowance---Validity---Chairman of the Arbitration Council committed a glaring legal
error which was apparent in his order---High Court being the Court of equity and natural
justice had to take note of illegalities committed by the Tribunal below and rectify the
same beyond technicalities.

(d) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 10---Dower---If it is proved on record that the husband has refused to pay prompt
dower after demand by wife she is justified to live separately.

Mst. Muhammadi v. Jamil-ud-Din PLD 1960 (W.P.) Kar. 663 ref.

(e) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 9 & 10---Maintenance---Non-payment of dower ---Effect--Incumbent upon the

husband to maintain his wife and he is not absolved of his liability to maintain her even
though she be not residing with him provided she has a lawful excuse or a legal right to
refuse to live with her husband on account of non-payment of prompt dower.

Nur-ud-Din Ahmad v. Masuda Khanum PLD 1957 Dacca 242 ref.

(f) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 8, 9 & 10---Constitution of Pakistan (1973) Art.199--Constitutional petition---.

Khula' and "Mubaraat"---Distinction--Maintenance---Divorce on mutual decision of the
parties is Khula' Mubaraat---Non-payment of prompt dower---Effect---Circumstances, in
the present case, showed that dower was left by the wife in lieu of Khula'
Mubaraat---Wife was entitled for the maintenance for the period she was in the wedlock
of her husband---Maintenance was not to be determined without any proof of the income
of the husband---Principles---Where the Chairman, Arbitration Council had determined
the quantum of maintenance to be paid by the husband without any proof of his income,
High Court modified the judgment and decree passed by the Chairman accordingly.

There is a difference between Khula' and Mubaraat and the main distinction between a
Khula' and Mubaraat is that in the former the aversion is on the side of the wife and she
desires a separation but in the latter the aversion is mutual and both sides desire
separation. Secondly, in a divorce by Khula' some consideration must be given by the
wife to the husband for her release from the marital tie. It is in effect an offer from the
wife for her release on payment of compensation and, therefore, in the circumstances the
divorce ultimately agreed upon by the parties' was only a Mubaraat and not Khula', then
the wife is entitled for the half of the benefits and divorce takes place and it is also
established that the wife was not paid the prompt dower. The circumstances show that the
dower was left by the wife in lieu of Khula Mubaraat but she is entitled for maintenance
for the period she was in the wedlock of her husband but the quantum of maintenance
was determined without any proof of the income of Or husband, therefore, the judgment
and decree passed by the Chairman, Arbitration Council was modified by the High Court
from Rs.5,000 to Rs.2,000 and it was granted from the period 1-1/2 years prior to the
filing of the application till the divorce had become effective.

Mst. Sharifan Bibi v. The Chairman, Union Council Ram Thuman and 2 others PLD 1994
Lah. 20; Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others PLD 1983 SC 169;
Muhabbat Hussain v. Mst. Naseem Akhtar and others 1992 PSC 1034; Mst. Khurshid
Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Parveen Akhtar v. Muhammad Afzal
and another 1987 CLC 1668; Muhammad Faryad v. Muhammad Asif PLD 1993 Lah.
469; Brig. (Retd.) Mazharul Haq and another v. Messrs Muslim Commercial Bank Ltd.,
Islamabad and another PLD 1993 Lah. 706; Muhammad Saleem v. Zeba Abdul Hameed
and 2 others 1995 MLD 988; Muhammad Ashraf v. Mst. Bushra Shaheen and others 1994
Law Notes (Lahore) 1153; Muhammad Javed Akhtar v. Collector and others 1991 CLC
1356; Muhammad Khalid v. Shamsa Taskeen and others 1989 ALD 389(1); Tayyab Khan
v. Nadia Khan 2000 CLC 558; Nur-ud-Din Ahmad v. Masuda Khanam OLD 1957 Dacca
242; Mst. Muhammadi v. Jamil-ud-Din PLD 1960 (W.P.) Kar. 663 and Mst. Ghulam
Sakina v. Umar Bakhsh and another PLD 1964 SC 456 ref.

Muhammad Akbar Cheema for Petitioner.

Ijaz Ahmad Chaudhry for Respondent No. 1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 25th July, 2002.

JUDGMENT

The instant writ petition is filed under Article 199 of the Constitution of Pakistan, 1973
read with section 115, C.P.C. for setting aside the judgment and decree dated 17-6-1993
passed by the respondent No.2 with the prayer to quash the order, dated 22-9-1996 passed
by the District Collector, Lahore and remand the case for deciding the same afresh by an
educated Councillor according to law.

2. As far as the revisional power of this Court is concerned the High Court does not enjoy
and supervisory jurisdiction under section 115, C.P.C. as the provision of the Civil
Procedure Code does not apply to the proceedings of the Family Courts Act and section
17 are specific bar. This case is only heard on the Constitutional side.

3. The grievance of the petitioner is that the respondent No.1 filed an application before
the learned Chairman, Arbitration Council, Halqa No.64, Lahore on 8-9-1992 relating to
the demand of maintenance allowance for the past 1-1/2 years and the future maintenance
allowance. This application was contested by the petitioner/respondent before the learned
Chairman, Arbitration Council and the learned Arbitration Council decreed the
application of the respondent/plaintiff in the sum of Rs.5,000 per month from 31-12-1989
to 31-12-1992 to the tune of Rs.1,80,000. The petitioner filed a revision petition before
the District Collector, which .was dismissed on the point of limitation vide order, dated
22-9-1996. Now both the orders are assailed in this writ petition.

4. The argument advanced by the learned counsel for the petitioner is that the learned
Chairman, Arbitration Council being an uneducated and illiterate person could not decide
the petition for maintenance allowance in its true perspective. He has relied on Mst.
Sharifan Bibi v. The Chairman, Union Council Ram Thuman and 2 others PLD 1994 Lah.
20. He further submitted that the petitioner admitted during the cross-examination that
she had demanded Khula' and if the Khula' is demanded then the wife is not entitled even
to maintenance. He has relied on Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others
PLD 1-983 SC 169, where Khula' is a civil liability with regard to benefits derived from
the husband which must be returned to the husband. He relied on Muhabbat Hussain v.
Mst. Naseem Akhtar and others 1992 MLD 1294, Mst. Khurshid Bibi v. Baboo
Muhammad Amin PLD 1967 SC 97 and Parveen Akhtar v. Muhammad Afzal and another
1987 CLC 1668, where it is held that if the wife demands Khula' then she can claim
nothing from the husband. He further submitted that the petitioner was under no
obligation to maintain respondent No. l who left the house of the petitioner with her own
free-will when no one had tortured her. The allegation levelled against the petitioner
remains unproved and that the respondent demanded maintenance for 1-1/2 years while
the learned Chairman, Arbitration Council granted her maintenance from 31-12-1989 to
31-12-1992 which is unwarranted by law. Therefore, the impugned order and the order in
revision be set aside being not sustainable in the eyes of law as it is a void order and the
limitation does not run against a void order. He has relied on Muhammad Faryad v.
Muhammad Asif PLD 1993 Lah. 469, Brig. (Retd.) Mazharul Haq and another v. Messrs
Muslim Commercial Bank Ltd., Islamabad and another PLD 1993 Lah. 706.

5. The learned counsel for the respondent submits that the judgment and decree passed by
the learned Chairman, Arbitration Council is dated 17-6-1993 and by the Revisional
Court of the District Collector, Lahore is dated 22-9-1996 while the writ petition is filed
on 2-7-1997. In this way the first revision petition was filed with a delay of 1 year, 7
months and 6 days which was dismissed being time-barred and the instant writ petition
suffers from latches of 10 months for which no explanation is given by the petitioner. On
this score this writ petition is liable to be dismissed. He has relied on Muhammad Saleem
v. Zeba Abdul Hameed and 2 others 1995 MLD 988, Muhammad Ashraf v. Mst. Bushra
Shaheen and others 1994 Law Notes (Lahore) 1153, Muhammad Javed Akhtar v.
Collector and others 1991 CLC 1356, Muhammad Khalid v. Shamsa Taskeen and others
1989 ALD 389(1) and Tayyab Khan v. Nadia Khan 2000 CLC 558. He further submitted
that it is proved on record that the petitioner was not given prompt-dower to which she
was entitled and till she is given dower she is entitled to maintenance. He has relied on
Nurud-Din Ahmad v. Masuda Khanam PLD 1957. Dacca 242, Mst. Muhanunadi v.
Jamil-ud-Din PLD 1960 (W.P.) Kar. 663, where it is held that the wife is entitled to
maintenance allowance till her dower is not paid. The second material aspect which is
proved on record, is that separation and divorce between the parties was through
Mubarat. When there is mutual separation then the wife is entitled to 50% benefits. Both
the spouses have married and so far as the quantum of maintenance is concerned the
petitioner has nowhere rebutted the quantum of maintenance. Therefore, the instant writ
petition is liable to be dismissed.

7. I have heard the learned counsel for the parties and have perused the record.

8. The respondent No.1 filed an application before the learned Chairman, Arbitration
Council that she has been expelled from the house of her husband 1-1/2 years prior to the
filing of the application. Her ornaments and articles of dowry are with her husband. She
be given the Haq-ul-Mehr of Rs.20,000 and be allowed the maintenance allowance of
Rs.12,000 per month. She also admitted in her application that after the wedlock there are
three children who are being brought up by her husband. This application was filed on
8-9-1992. An Arbitration Council was constituted. The respondent No. l stated that she
will conduct her own case and the petitioner appointed his representative Mian Abdul
Waheed son of Abdul Majeed.

The respondent No. l appeared as her own witness and she stated on oath that she was
married with the petitioner. She had a dispute with her husband 1-1/2 years before and
she had left the house and since then she is living in separation. Her dowry articles and
Haq-ul-Mehr are still to be paid by her husband. The income of the petitioner is
Rs.30,000 and she be given Rs.12,000 per month as maintenance allowance. On question
by the petitioner she admitted that she went of her own free-will from the house of her
husband because the family circumstances were so critical that spouses could not live
together. She explained the critical circumstances as the outcome of quarrelling between
the parties. On a question that while going from the house she wrote a letter to her
husband that she will not take Haq-ul-Mehr nor take anything from the children's
property. She replied that she demanded Khula' in lieu of Haqul-Mehr and that she will
not take anything from the property. On a question put by the respondent, the petitioner
replied that after December, 1991 he did not spend anything on the respondent No. l and
that during that period did he maintain her, the petitioner replied in affirmative that he
had not maintained her because she went on her own accord from the husband and she
gave him in writing that she is taking divorce and she will not claim maintenance. On a
question by the petitioner that whether she is ready for Khula' Mubarat, the respondent
No. l replied that if he has a desire she is ready.

The petitioner appeared as his own witness and stated on oath that during the wedlock
they had three children who are in the custody of the petitioner and the respondent No.1
left the house of her husband since 6-9-1991 and showed her desire that she wants
separation and wants to go to her mother's house. The petitioner gave her 2/3 days' time
to think and then out of the mutual decision she left the house and then later on her two
sisters and one brother came and said that despite their efforts there is no possibility of
reconciliation, therefore, he should divorce her. Afterwards the respondent went to the
house of some family friend and the petitioner went there and brought her back to his
house. She stayed for IS/20 days and while going away again she wrote a letter and went
away and from that time she is living separately. The divorce is in the process.

9. The learned Chairman, Arbitration Council, vide his judgment arid decree, dated
17-6-1993 observed that the respondent No.1 deserves for the maintenance allowance, .
therefore, he fixed the maintenance allowance as Rs.5,000 per month and granted
maintenance allowance from 31-12-1989 to 1-12-1992. This judgment was assailed in
revision but the revision petition was dismissed on the technical point of limitation.
Hence this petition.

10. So tar as the first question whether the learned Chairman, Arbitration Council has
granted decree beyond prayer of the petitioner is concerned, it is obvious on the record
that the respondent No. l demanded' maintenance allowance for 1-1/2 years prior to
giving the application for maintenance allowance before the learned Chairman,
Arbitration Council and the learned Chairman, Arbitration Council had no authority in
Law to grant maintenance allowance beyond that period. It is also admitted between the
parties that the divorce had taken place between the spouses. On 6-3-1993 it had become
effective. The second factum which is absent on record is reasonable and cogent proof of
the income of the petitioner who is admittedly retired from service in the year 1982 and it
is also admitted between the parties that all the three children were brought up by the
petitioner and they remained in the custody of the petitioner and also that for sometimes
the financial position of the petitioner was critical and the spouses had to sell some
jewellery. The respondent No. l is remarried vide a registered marriage on 9-7-1993 and
the petitioner has also remarried. While determining the quantum of maintenance no
proof was given by the respondent No. l or by the petitioner himself about his income.
The learned Chairman, Arbitration Council did not take pain to ask the parties or
determine the means of the parties and then fix maintenance allowance, therefore, this is
a glaring legal error apparent in the impugned judgment and this Court being the Court of
equity and natural justice has to take note of illegalities committed by the Tribunal below
and rectify them beyond technicalities.

11. Now the question which is to be determined by the Court is whether the respondent
No. l who is living separately has a reason to live away from her husband and demand the
maintenance allowance It is admitted between the parties that the divorce took place due
to the mutual consent of the parties that was Khula' Mubarat. It, is also settled proposition
of law that if it is proved on record that the husband has refused to pay prompt dower
after demand by wife she is justified to live separately. In Mst. Muhammadi v. Jamil-ud-
Din PLD 1960 (W . P.) Kar 663 it is held that where one of the reasons, why the wife
stayed away from her husband, and lived with her parents, was that her prompt dower
had not been paid, the husband was bound to maintain the wife at her parents' house, and
failure of the husband, continued for two years before suit, entitled the wife to a decree
for dissolution of marriage.

12. It is always incumbent upon the husband to maintain his wife and he is not absolved
of his liability to maintain her even though she be not residing with him provided she has
a lawful excuse or a legal right to refuse to live with her husband on account of
non-payment of prompt dower. Nur-ud-Din Ahmad v. Masuda Khanum PLD 1957 Dacca
242 it is held that the dissolution of Muslim Marriages Act (VIII of 1939) nonpayment
simpliciter of maintenance does not constitute failure or neglect within meaning of
section 2(ii). Even refusal to pay the prompt dower can be inferred from conduct as the
prompt dower may be considered a debt always due and demandable, and payable upon
demand, and, therefore, upon a clear and unambiguous demand and refusal a cause of
action would accrue. In Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC
456 the Honourable Supreme Court held that there is a difference between Khula' and
Mubaraat is that in the former the aversion is on the side of the wife and she desires a
separation but in the latter the aversion is mutual and both sides desire separation.
Secondly, in a divorce by Khula' some consideration must be given by the wife to the
husband for her release from the marital tie. It is in effect an offer from the wife for her
release on payment of compensation and when the wife who sought severance of the
marital tie and not the husband and, therefore, in the circumstances the divorce ultimately
agreed upon the parties was only a Mubaraat and not Khula', then the respondent is
entitled for the half of the benefits. In the present case there was a mutual decision by the
parties and divorce took place and it is also established that the respondent had not paid
the prompt dower The circumstances show that the dower was left by the respondent in
lieu of Khula Mubaraat but she is entitled for maintenance for the period she was in the
wedlock of her husband but the quantum of maintenance was determined without any
proof of the income of the petitioner, therefore, the judgment and decree passed by the
learned Chairman, Arbitration Council is modified from Rs.5,000 to Rs.2,000 and it is
granted from 7-3-1991 which is the period 1-1/2 years prior to the filing of the
application till the divorce had become effective.

13. With this observation the writ petition is partly accepted.

M.B.A./I-138/L Petition partly accepted.

2002 C L C 1450

[Lahore]

Before Farrukh Lateef, J

ARSHAD ALI ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, VEHARI and others----Respondents

Writ Petition No. 5514 of 2001, decided on 11th June, 2002.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched---Constitution of Pakistan (1973),Art.199---Constitutional petition Suit

for maintenance---Right of maintenance of wife---Conditions---Husband though was
bound to maintain his wife, but right of maintenance of wife was subject to conditions;
that she must be faithful to the husband and obey his reasonable order and if refused
herself to husband, he was not bound to maintain her---Wife was not entitled to
maintenance when she lived apart from husband except for non-payment of her dower in
which case her right of maintenance would continue even though she was living apart---If
wife of her own accord was living apart from her husband and was not willing to live
with him at any cost, she was not entitled to maintenance---Finding of Family Court that
wife was not entitled to maintenance, was based on evidence coupled with personal
observation of Court about demeanour of parties---Findings of Family Court could not be
brushed aside lightly without assigning any reason, as had been done by Appellate
Court---Findings of Appellate Court were not based on evidence and no reason was
assigned by Appellate Court in its judgment---Arbitrary and fanciful judgment of
Appellate Court was declared illegal, in circumstances.

Rao Jamshed Ali and Muhammad Javed Iqbal for Petitioner.

Rana A.D. Kamran for Respondent No.3.

Date of hearing: 11th June, 2002.

JUDGMENT

Mst. Sughran Ibrahim (respondent No.3) filed a suit for recovery of maintenance against
her husband Arshad Ali (writ petitioner). It was contested; after framing relevant issues,
recording evidence and hearing the learned counsel for the parties the said suit dismissed
by Judge, Family Court (respondent No.2) vide judgment, dated 12-5-2000.
 2. Aggrieved thereby Mst. Sughran Ibrahim, filed an appeal which was accepted by
learned Additional District Judge, Vehari (respondent No.1) vide judgment, dated
21-4-2001. Judgment of the Family Court was set aside and Mst. Sughran Ibrahim was
granted decree for maintenance allowance at the rate of Rs.1,500 per month since one
year prior to the institution of her suit till the expiry of her period of Iddat.

3. The said order of Additional District Judge, Vehari is called in question in this writ
petition as unjust, improper and illegal on the following grounds:--

(i) Findings of the Appellate Court are not based on evidence and that,

(ii) evidence was not adverted to at all wherefrom it was established that respondent No.3,
was herself living apart from the writ petitioner without any reasonable cause and was not
willing to perform her matrimonial obligations. It was for the said reason that the learned
trial Court had held that she was not entitled to maintenance. This legal aspect was
altogether ignored by the Appellate Court.

4. The petition is opposed by Rana A.D. Kamran, Advocate on behalf of wife (respondent
No.3) who has during his arguments fully supported the impugned judgment.

5. Arguments heard. Writ petition and Annexures a pended therewith perused.

6. In para. No.6, of the impugned judgment the learned Appellate Court has narrated the
evidence produced by the parties during the trial and in the following para. of the
judgment he has mentioned that following facts were admitted in the evidence: --

(a) Marriage of the parties was solemnized on 22-3-1997.

(b) No issue was born from the wedlock.

(c) Arshad Ali is a school teacher and his salary is Rs.4,000 per month and,

(d) Father of Mst. Sughran Ibrahim (wife) had died and she is living with her mother and she
also has a brother who is married.

7. In the next para. (para. No.8) of the impugned judgment the learned Appellate Court
made certain observations regarding legal propositions such as it is the duty of the
husband to maintain his wife during the subsistence of marriage and a divorced wife is
entitled to maintenance for the period of her Iddat.

8. The learned Appellate Court in the subsequent para. (para. No.9), without assessing,
analyzing and appraising the evidence, jumped to the conclusion that Arshad Ali was
bound to maintain Mst, Sughran Ibrahim and it was evident from record that he had not
provided for her maintenance in the past, he then went, on to hold that Mst. Sughran
Ibrahim was entitled to maintenance allowance at the rate of Rs.1,500 per month since
one year prior to the institution of her suit till the expiry of her Iddat period. It was also
observed that suit for restitution of conjugal rights filed by Arshad Ali was dismissed on
12-5-2000 and on the very next day i.e. 13-5-2000 he had divorced Mst. Sughran
Ibrahim.

9. The learned Judge, Family Court had dismissed the suit of the wife on the ground that
she was living apart from her husband according to her own sweet-will; suit for
restitution of conjugal rights filed by the husband was simultaneously tried along-with the
suit for maintenance and it was observed in that suit by the Family Judge that the wife
was not ready and willing to live with the husband at any cost without any justification.

10. A perusal of the impugned judgment shows that neither the evidence on record was
adverted to by the learned Appellate Court nor the reasons given by the learned trial
Court for dismissing the claim of maintenance were looked into and disagreed with. In
para. No.9 of the impugned judgment reference is made to the suit for restitution of
conjugal rights filed by the writ petitioner which was dismissed on 12-5-2000. Judgment
of the trial Court whereby suit for restitution of conjugal rights filed by the writ petitioner
was dismissed is Annexure "C". Perusal thereof shows that reason for dismissing the said
suit was that reconciliation efforts had failed because the wife (respondent No.3) was not
willing to live with the husband (writ petitioner) at any cost and decreeing the suit for
restitution would mean forcing the wife into a hateful union.

11. There is no caval to the proposition that a husband is bound to maintain his wife but
right of maintenance of the wife is subject to the following conditions: --

(i) She must be faithful to the husband and obey his reasonable order, if she refuses
herself to him, he is not bound to maintain A her.

(ii) Wife is not entitled to maintenance when she lives apart from the husband except
for non-payment of her dower in which case her right of maintenance continues
even though she is living apart from him.

12. It was not the case of respondent No.3, that she was living apart due to non-payment
of her dower debt.

13. Judge, Family Court, who had conducted the trial of both the cases had the advantage
of observing the demeanour of the parties during the trial and the reconciliation
proceedings conducted by him in the suit for restitution of conjugal rights which was
simultaneously being tried and was decided along-with the suit for maintenance on the
same day.

14. His finding that respondent No.3, was not entitled to maintenance is based on
evidence coupled with his personal observation B of the demeanour of the parties hence
said finding could not be brushed aside lightly without assigning any reason as was done
by the Appellate Court.
15. The petitioner while appearing in the witness-box had deposed that he had tried his
level best for the restitution; his bona fide was established as he had also filed a suit for
restitution of conjugal rights and on its dismissal when there was no hope left for
restitution, he had no alternative but to divorce respondent No.3. From the judgment of
the Family Court it was abundantly clear that respondent No.3, was of her own accord,
living apart from the writ petitioner and was not willing to live with him at any cost. In
the said circumstances she was not entitled to maintenance.

Findings of the Appellate Court are not based on evidence; no reason is assigned in the
impugned judgment for giving the findings; the impugned judgment is, therefore,
arbitrary, fanciful and of no legal effect and it is declared as such. However, respondent
No.3 is entitled to recover maintenance allowance during the period of her Iddat.

With the above observations, the writ petition is partly accepted.

H.B.T./A-539/L Order accordingly.

2000 M L D 504

[Lahore]

Before Sheikh Abdur Razzaq, J

ATAULLAH---Petitioner

versus

Mst. RIZWANA and others---Respondents

Writ Petition No. 1371 of 1999, decided on 1st July, 1999.

(a) West Pakisan Family Courts Act (XXXV of 1964)--

----S.5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional

petition---Suit for restitution of conjugal rights---Non-payment of prompt dower to the
respondent/wife by the petitioner/husband---Effect---Where it was proved by evidence
that prompt dower was not paid to the respondent/wife, she was justified in living apart
from the petitioner/husband ---Both the Courts below had rightly dismissed the suit and
appeal of the petitioner/husband and as such the judgments were unexceptionable.

(b) West Pakistan Family Courts Act (XXV of 1964)---

----S.5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional

petition---Suit for maintenance allowance ---Petitioner/husband was running a cloth shop
and the Family Court fixed Rs.1,000 per month as maintenance allowance---Lower
Appellate Court confirmed the judgment of the Family Court and dismissed the appeal
filed by the petitioner/husband ---Validity--Fixation of such an amount was just normal
and one could hardly make his both ends meet in such a meagre amount---Family Court
had rightly fixed the maintenance at the rate of Rs.1,000 per month---Petition was
dismissed in limine.

Syed Abdul Aziz Shah for Petitioner.

ORDER

Instant writ petition is directed against the consolidated judgment and decree dated
6-3-1999 passed by the learned Additional District Judge, Rawalpindi/respondent No.3,
confirming the judgment and decree, dated 11-12-1997 passed by the learned Senior Civil
Judge/Judge Family Court, Rawalpindi/respondent No.2, dismissing the suit of the
plaintiff/petitioner for restitution of conjugal rights filed against the defendant/respondent
No. 1.
2. Alongwith this petition, another W.P. No.1386 of 1999 has also been filed by the
present petitioner against the judgment and decree, dated 6-3-1999 whereby learned
Additional District Judge, Rawalpindi/respondent No.3 confirmed the judgment and
decree dated 11-12-1997 passed by the learned Senior Civil Judge/Judge Family Court,
Rawalpindi/respondent No. 2, whereby he decreed the suit of the plaintiff/respondent No.
l for the grant of maintenance against the defendant/petitioner.

3. As both the writ petitions arise out of the same consolidated judgments referred above,
so these are being disposed of by this single order.

4. Briefly stated the facts are that petitioner Ataullah contracted marriage with Mst.
Rizwana respondent No. l on 19-9-1994 subject to the payment of Rs.15,000 as prompt
dower. The relations between the parties became strained just after marriage and as such
Mst. Rizwana left the house of her husband and started living with her parents. This
compelled Ataullah to file a suit for restitution of conjugal rights against her wife on
19-7-1995. The suit was resisted by the defendant Mst. Rizwana, wherein she denied the
contentions of her husband and prayed for dismissal of his suit.

5. During the pendency of the suit for restitution of conjugal rights filed by Ataullah,
another suit for grant of maintenance allowance was also filed by Mst. Rizwana, wherein
she asserted that after one month and 14 days of this marriage, she was made to leave the
house of her husband and since then she had not been paid any maintenance allowance.
She claimed maintenance allowance at the rate of Rs.1,000 per month. This suit was also
resisted by Ataullah, wherein he controverted the contentions of Mst. Rizwana and
asserted that she had left the house of her own accord and had been living in her parents'
house without any justification.

6. Both the suits were consolidated by the trial Court and consequently following
consolidated issues were framed:--

(1) Whether the plaintiff's dower is still unpaid?

(2) Whether the plaintiff is entitled to recover maintenance from the defendant? If so,
at what rate and for what period?

(3) Whether the defendant is entitled to decree for restitution of conjugal rights? If so,
on what terms?

(4) Relief.

In support of her contentions, Mst. Rizwana appeared as P.W.1 and examined

Muhammad Latif Butt as P.W.2. In rebuttal, Ataullah examined himself as D.W.1 and
Mst. Bilqees Khanam as D.W.2.

7. After going through the evidence produced by the parties, the trial Court decreed the
suit of Mst. Rizwana regarding grant of maintenance at the rate of Rs.1,000 per month
whereas dismissed the suit of Ataullah for restitution of conjugal rights. Ataullah has felt
aggrieved of the said judgments and decrees and has filed these two writ petitions which
arise out of the same consolidated judgments.

8. Arguments have been heard and record persued.

9. The plaintiff/petitioner Ataullah filed a suit for restitution of conjugal rights asserting
that he was married with Mst. Rizwana on 19-9-1994 and a prompt dower of Rs.15,000
was fixed. His contention is that the said prompt dower was paid to her wife just after
marriage. This contention stands repudiated by Mst. Rizwana. To prove his stand,
Ataullah examined himself as D.W.1 and brought on record statement of Mst. Bilqees as
D.W.2. Perusal of statement of Ataullah D.W.1 clearly reveals that he has not uttered even
a single word regarding the payment of prompt dower of Rs.15,000. This silence on the
part of Ataullah supports the stand of his wife Mst. Rizwana that she was never paid
prompt dower. This being the factual position, Mst. Rizwana was justified in living apart
from her husband Ataullah. The trial Court has rightly returned findings on issue No.3
which have been duly confirmed by the learned Appellate Court. Accordingly, it is held
that the judgments of the Courts below are unexceptionable. .

10. So far as the question of grant of maintenance is concerned, Mst. Rizwana has
claimed the same at the rate of Rs.1,000 per month and she had been granted the decree
in the said amount. The stand of learned counsel for the petitioner is that as Ataullah is
being given only Rs.50 per day by his brother, so how can he afford a sum of Rs.1,000
per month as maintenance allowance for his wife who is living apart from him. The stand
of Mst. Rizwana is that her husband is running a cloth shop and his monthly income is
Rs.10,000. It is also admitted by the petitioner Ataullah that he runs his cloth business.
This admission on the part of Ataullah clearly belies his later stand that he gets Rs.50 per
days from his brother. Under the prevalent circumstances, fixation of maintenance at the
rate of Rs.1,000 per month is just normal and one can hardly make his both ends meet
within such a meagre amount. The trial Court has rightly fixed the maintenance at the
said rate. The contention of Mst. Rizwana has been confirmed even by the Appellate
Court vide judgment and decree, dated 6-3-1999. Thus, the judgments of the Courts
below regarding fixation of maintenance allowance are also unexceptionable.

11. The upshot of the above discussion is that both the writ petitions are devoid of any
force and are dismissed in limine.

Q.M.H./M.A.K./A-127/L

Petitions dismissed.
1999 Y L R 615

[Karachi]

Before Rasheed A. Razvi, J

Mst. KAUSAR PARVEEN---Petitioner

versus

ABDUL KHALID and 2 others---Respondents

Constitutional Petitions Nos.S-222 and S-223 of 1998, decided on 23rd February, 1999.

(a) Constitution of Pakistan (1973)--

----Art.l99---Constitutional jurisdiction--Scope---Where any Authority or a Tribunal

passes an order by ignoring any admitted fact or material evidence or when there is gross
misreading or non-reading of any material document then High Court under Art. 199 of
the Constitution is competent to interfere with such order to correct such illegality.

Muhammad Suleman v. Zubaida Bibi 1995 PSC 441 ref.

(b) West Pakistan Family Courts Act (XXV of 1964)---

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---

Suits for recovery of prompt dower and maintenance was filed by the petitioner/wife
against respondent/husband---Family Court dismissed suit for recovery of dower amount
and decreed suit of maintenance to the extent of past maintenance---Respondent/husband
preferred appeal against past maintenance whereas petitioner/wife filed appeal for
recovery of dower amount---Lower Appellate Court accepted appeal of
respondent/husband and rejected that of petitioner/wife--Validity-Non payment of dower
was a lawful excuse for wife to deprive her husband of her companionship, such question
eras very vital and the same was not considered by two subordinate Courts---Finding of
Family Court with regard to past maintenance was upset by lower Appellate Court
without looking into the evidence led by both the parties and law laid down by the
superior Courts---Case of petitioner/wife was not considered by lower Appellate Court in
its true perspective--Judgments of lower Appellate. Court were set aside in
circumstances.

Chanani Begum v. Muhammad Shafiq and 2 others PLJ 1985 Lah. 232; Muhammad
Ishaque v. Mst. Rukhsana Begum and 2 others PLD 1988 Kar. 625; Mst. Nasreen Bibi
and others v. Maqbool Shah and others 1996 CLC 1723; Allah Ditta v. Mst. Naseem Mai
and another 1998 MLD 1890; Mst. Saadia Shirin v. Javed Ali Bhatti and 2 others 1991
MLD 784; Khalid Mehmood v. The District Judge, Dera Ismail Khan and 2 others 1995
MLD 298; Muhammad Suleman v. Zubaida Bibi 1995 PSC 441; Kitabul Fiqha by Abdul
Rehman Aljasairi, Vol. IV and Raddul Muhtar by Nawab A.F.M. Abdul Rehman, Vol. II
ref.

Shaikh Muhammad Usman for Petitioner.

Attaullah Khan for Respondent No

ORDER

This common judgment will dispose of the two Constitutional petitions arising out of the
consolidated judgment, dated 25-3-1998 passed by the 1st Additional District Judge,
Karachi (West) in the Family Appeals Nos. 11 and 12 of 1997 as the facts are common in
both these petitions.

2. The petitioner was married to the respondent No. l on 8-1-1993, according to Sunni
Muslim Law and the dower amount agreed between the parties was fixed at Rs.40,000 as
prompt. Unfortunately, the relationship between the parties remained cordial only for a
brief period and a dispute arose which resulted in their separation. This led to institution
of litigations against each other. The petitioner filed two family suits against the
respondent No. 1. First Suit bearing No.26 of 1995 was for seeking recovery of
maintenance from May, 1994. Second Family Suit bearing No.25 of 1995 filed against
the respondent No. l was for recovery of prompt dower amounting to Rs.40,000. The
respondent No. l also filed a Family Suit bearing No.615 of 1995 against the petitioner
seeking restitution of conjugal rights. All the three suits were consolidated and were
disposed of by the learned IVth Family Judge, Karachi (West) vide judgment, dated
28-4-1997. The Family Suit No.25 of 1995 filed for recovery of prompt dower was
dismissed while petitioner's Family Suit No.26 of 1995 for past maintenance was
decreed. The suit of petitioner for restoration of conjugal rights was also decreed but with
no order as to costs. Against the judgment in Family Suit No.26 of 1995, respondent No. l
filed appeal challenging the grant of maintenance. However, the present petitioner did not
file any appeal against the order of Family Judge directing restitution of conjugal rights
as immediately after pronouncement of the said judgment, the respondent No. l on
5-6-1997 pronounced divorce. This fact is admitted by the respondent No. 1. The learned
1st Additional District Judge, Karachi (West) through a consolidated judgment (impugned
judgment) allowed the appeal of respondent No. l and dismissed the petitioner's appeal. It
is this order which has been challenged in these two Constitutional petitions.

3. I have heard Mr. Shaikh Muhammad Usman, Advocate for the petitioner and Mr.
Attaullah Khan, Advocate for the respondent No. 1. It was strenuously argued by Mr.
Shaikh Muhammad Usman that both the subordinate Courts have erred in not considering
the facts that non-payment of dower gives a justification to a wife not to perform her
marital obligations and to live separate from her husband. It was further argued that the
learned Appellate Court has proceeded on the assumption that since the dower amount
was paid on the marriage day vide column No.16 of the Nikah Nama, the petitioner was
not entitled for payment of prompt dower amount. According to Mr. Muhammad Usman
Shaikh, this was not the case of the respondent No. l who has admitted in para. No. l of
his suit for restitution of conjugal rights that the amount of dower was paid on 12-1-1993
through an Iqrarnama executed by the petitioner. It was further contended that the
findings of these two subordinate Courts are based on misreading, non-reading and mis-
appreciation of the admitted facts warranting interference of this Court under the
Constitutional jurisdiction. He has placed reliance on the following cases:---

(i) Chanani Begum v. Muhammad Shafiq and 2 others (PLJ 1985 Lahore 232);

(ii) Muhammad Ishaque v. Mst. Rukhsana Begum and 2 others (PLD 1988 Karachi 625);

(iii) Mst. Nasreen Bibi and others v. Maqbool Shah and others (1996 CLC 1723);

(iv) Allah Ditta v: Mst. Naseem Mai and another (1998 MLD 1890);

(v) Mst. Saadia Shirin v. Javed Ali Bhatti and 2 others (1991 MLD 784); and

(vi) Khalid Mehmood v. The District Judge, Dera Ismail Khan and 2 others (1995 MLD
298).

4. It was contended by Mr. Attaullah Khan, Advocate for the respondent No.l that the law
of Qanoon-e-Shahadat 1984 and provisions of C.P.C., 1908 are not applicable in a trial
before the Family Judge as per provisions of section 17 of the Family Courts Act, 1964
and, therefore, the respondent No.l has successfully proved the payment of dower
amount. It was further argued that the scope of Article 199 of the Constitution, 1973 is
very limited and particularly in the circumstances of the present case, the petitioner is not
entitled to maintain this petition as it involves consideration of controverted facts. He has
placed reliance on the case of Muhammad Suleman v. Zubaida Bibi (1995 PSC 441).

5. It is settled law that where any authority or a Tribunal passes an order by ignoring any
admitted fact or material evidence or when there is gross misreading or non-reading of
any material document, then this Court under Article 199 is competent to interfere with
such order to correct such illegality. In so far as entitlement of a wife to refuse
consummation of marriage without payment of prompt dower is concerned, it was held
by a learned Single Judge of this Court, Saleem Akhtar, J. (as his Lordship then was), in
the case of Muhammad Ishaque (supra) that in case of prompt dower; after Nikah the
wife becomes entitled for the same and that such wife is entitled to refuse consummation
of marriage. Reference was made to Kitabul Fiqha (Volume IV) by Abdul Rehman
Aljasairi and Raddul Muhtar (Volume 11) by Nawab A.F.M. Abdul Rehman. In the case
of Chanani Begum (supra), it was held by a learned Single Judge of the Lahore High
Court that a wife is competent to refuse herself to husband and to live separately from
him unless prompt dower is paid to her. In the case of Mst. Nasreen Bibi (supra), it was
held by a learned Single Judge of Peshawar High Court that "the nonpayment of dower is
a lawful excuse for the wife to deprive her husband of his companionship". This question
was very vital which was not considered by the two subordinate Courts.
6. The learned Appellate Court proceeded on the premises that it was mentioned in
column 16 of the Nikahnama, which is an admitted document, that eight tola golden
ornaments were given to the wife/petitioner, which was sufficient proof of payment of
prompt dower. Learned Appellate Court ignored the material fact that it was not the case
of the respondent No. l who all along the trial before the Family Court pleaded that the
prompt dower was paid on the fourth day after the marriage. There is an Iqrarnama on
record which was exhibited before the Trial Court which is claimed to be attested by a
Notary Public. There are allegations and counter allegations on the execution of such
Iqranama which were not considered by the learned trial Court. At the same time, I may
observe that it is very strange to note that a husband took his wife to the City Court
premises at Karachi just four days after marriage and got the Iqramama executed before
the Notary Public in respect of payment of prompt dower of Rs.40,000. This fact is
destructive to the contents of column 16 of the Nikahnama. Again, this aspect of the case
was not considered by the Appellate Court.

6. The appeal of the respondent No. l against the decree of suit for past maintenance was
allowed and the suit of the petitioner for maintenance was dismissed on the same ground
that since the dower amount was paid, there was no justification available to the
petitioner to live apart from her husband. In such circumstances past maintenance was
also declined to the petitioner. It is pertinent to observe that the learned Family Court
framed as much as five issues and gave negative finding on the issue that "Whether the
plaintiff/petitioner is living away from the defendant without any just cause." This
finding was upset by the Appellate-Court without looking into evidence led by both the
parties and the law laid down by the superior Courts.

7. After hearing both the learned counsel at length and after going through the record, I
am of the considered view that the learned Appellate Court had not considered the case of
the petitioner in its true perspective and the view of the law laid down by this Court,
which was binding on him. In such circumstances, both these petitions are accepted and
the impugned judgments are set aside with the result that both the appeals filed by the
petitioner will be deemed to be still pending before the concerned Court of appeal. The
case is remanded to the Appellate Court for reconsideration on merits after giving notice
to the parties and with the direction to dispose of the same preferably within a period of
three months from the date of receipt of this order. All the observations made hereinabove
are tentative in nature and in no manner may prejudice the mind of the appellate authority

Q.M.H./M.A.K./K-75/K Petition allowed

1999 Y L R 615

[Karachi]

Before Rasheed A. Razvi, J

Mst. KAUSAR PARVEEN---Petitioner

versus

ABDUL KHALID and 2 others---Respondents

Constitutional Petitions Nos.S-222 and S-223 of 1998, decided on 23rd February, 1999.

(a) Constitution of Pakistan (1973)--

----Art.l99---Constitutional jurisdiction--Scope---Where any Authority or a Tribunal

passes an order by ignoring any admitted fact or material evidence or when there is gross
misreading or non-reading of any material document then High Court under Art. 199 of
the Constitution is competent to interfere with such order to correct such illegality.

Muhammad Suleman v. Zubaida Bibi 1995 PSC 441 ref.

(b) West Pakistan Family Courts Act (XXV of 1964)---

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---

Suits for recovery of prompt dower and maintenance was filed by the petitioner/wife
against respondent/husband---Family Court dismissed suit for recovery of dower amount
and decreed suit of maintenance to the extent of past maintenance---Respondent/husband
preferred appeal against past maintenance whereas petitioner/wife filed appeal for
recovery of dower amount---Lower Appellate Court accepted appeal of
respondent/husband and rejected that of petitioner/wife--Validity-Non payment of dower
was a lawful excuse for wife to deprive her husband of her companionship, such question
eras very vital and the same was not considered by two subordinate Courts---Finding of
Family Court with regard to past maintenance was upset by lower Appellate Court
without looking into the evidence led by both the parties and law laid down by the
superior Courts---Case of petitioner/wife was not considered by lower Appellate Court in
its true perspective--Judgments of lower Appellate. Court were set aside in
circumstances.

Chanani Begum v. Muhammad Shafiq and 2 others PLJ 1985 Lah. 232; Muhammad
Ishaque v. Mst. Rukhsana Begum and 2 others PLD 1988 Kar. 625; Mst. Nasreen Bibi
and others v. Maqbool Shah and others 1996 CLC 1723; Allah Ditta v. Mst. Naseem Mai
and another 1998 MLD 1890; Mst. Saadia Shirin v. Javed Ali Bhatti and 2 others 1991
MLD 784; Khalid Mehmood v. The District Judge, Dera Ismail Khan and 2 others 1995
MLD 298; Muhammad Suleman v. Zubaida Bibi 1995 PSC 441; Kitabul Fiqha by Abdul
Rehman Aljasairi, Vol. IV and Raddul Muhtar by Nawab A.F.M. Abdul Rehman, Vol. II
ref.

Shaikh Muhammad Usman for Petitioner.

Attaullah Khan for Respondent No

ORDER

This common judgment will dispose of the two Constitutional petitions arising out of the
consolidated judgment, dated 25-3-1998 passed by the 1st Additional District Judge,
Karachi (West) in the Family Appeals Nos. 11 and 12 of 1997 as the facts are common in
both these petitions.

2. The petitioner was married to the respondent No. l on 8-1-1993, according to Sunni
Muslim Law and the dower amount agreed between the parties was fixed at Rs.40,000 as
prompt. Unfortunately, the relationship between the parties remained cordial only for a
brief period and a dispute arose which resulted in their separation. This led to institution
of litigations against each other. The petitioner filed two family suits against the
respondent No. 1. First Suit bearing No.26 of 1995 was for seeking recovery of
maintenance from May, 1994. Second Family Suit bearing No.25 of 1995 filed against
the respondent No. l was for recovery of prompt dower amounting to Rs.40,000. The
respondent No. l also filed a Family Suit bearing No.615 of 1995 against the petitioner
seeking restitution of conjugal rights. All the three suits were consolidated and were
disposed of by the learned IVth Family Judge, Karachi (West) vide judgment, dated
28-4-1997. The Family Suit No.25 of 1995 filed for recovery of prompt dower was
dismissed while petitioner's Family Suit No.26 of 1995 for past maintenance was
decreed. The suit of petitioner for restoration of conjugal rights was also decreed but with
no order as to costs. Against the judgment in Family Suit No.26 of 1995, respondent No. l
filed appeal challenging the grant of maintenance. However, the present petitioner did not
file any appeal against the order of Family Judge directing restitution of conjugal rights
as immediately after pronouncement of the said judgment, the respondent No. l on
5-6-1997 pronounced divorce. This fact is admitted by the respondent No. 1. The learned
1st Additional District Judge, Karachi (West) through a consolidated judgment (impugned
judgment) allowed the appeal of respondent No. l and dismissed the petitioner's appeal. It
is this order which has been challenged in these two Constitutional petitions.

3. I have heard Mr. Shaikh Muhammad Usman, Advocate for the petitioner and Mr.
Attaullah Khan, Advocate for the respondent No. 1. It was strenuously argued by Mr.
Shaikh Muhammad Usman that both the subordinate Courts have erred in not considering
the facts that non-payment of dower gives a justification to a wife not to perform her
marital obligations and to live separate from her husband. It was further argued that the
learned Appellate Court has proceeded on the assumption that since the dower amount
was paid on the marriage day vide column No.16 of the Nikah Nama, the petitioner was
not entitled for payment of prompt dower amount. According to Mr. Muhammad Usman
Shaikh, this was not the case of the respondent No. l who has admitted in para. No. l of
his suit for restitution of conjugal rights that the amount of dower was paid on 12-1-1993
through an Iqrarnama executed by the petitioner. It was further contended that the
findings of these two subordinate Courts are based on misreading, non-reading and mis-
appreciation of the admitted facts warranting interference of this Court under the
Constitutional jurisdiction. He has placed reliance on the following cases:---

(i) Chanani Begum v. Muhammad Shafiq and 2 others (PLJ 1985 Lahore 232);

(ii) Muhammad Ishaque v. Mst. Rukhsana Begum and 2 others (PLD 1988 Karachi 625);

(iii) Mst. Nasreen Bibi and others v. Maqbool Shah and others (1996 CLC 1723);

(iv) Allah Ditta v: Mst. Naseem Mai and another (1998 MLD 1890);

(v) Mst. Saadia Shirin v. Javed Ali Bhatti and 2 others (1991 MLD 784); and

(vi) Khalid Mehmood v. The District Judge, Dera Ismail Khan and 2 others (1995 MLD
298).

4. It was contended by Mr. Attaullah Khan, Advocate for the respondent No.l that the law
of Qanoon-e-Shahadat 1984 and provisions of C.P.C., 1908 are not applicable in a trial
before the Family Judge as per provisions of section 17 of the Family Courts Act, 1964
and, therefore, the respondent No.l has successfully proved the payment of dower
amount. It was further argued that the scope of Article 199 of the Constitution, 1973 is
very limited and particularly in the circumstances of the present case, the petitioner is not
entitled to maintain this petition as it involves consideration of controverted facts. He has
placed reliance on the case of Muhammad Suleman v. Zubaida Bibi (1995 PSC 441).

5. It is settled law that where any authority or a Tribunal passes an order by ignoring any
admitted fact or material evidence or when there is gross misreading or non-reading of
any material document, then this Court under Article 199 is competent to interfere with
such order to correct such illegality. In so far as entitlement of a wife to refuse
consummation of marriage without payment of prompt dower is concerned, it was held
by a learned Single Judge of this Court, Saleem Akhtar, J. (as his Lordship then was), in
the case of Muhammad Ishaque (supra) that in case of prompt dower; after Nikah the
wife becomes entitled for the same and that such wife is entitled to refuse consummation
of marriage. Reference was made to Kitabul Fiqha (Volume IV) by Abdul Rehman
Aljasairi and Raddul Muhtar (Volume 11) by Nawab A.F.M. Abdul Rehman. In the case
of Chanani Begum (supra), it was held by a learned Single Judge of the Lahore High
Court that a wife is competent to refuse herself to husband and to live separately from
him unless prompt dower is paid to her. In the case of Mst. Nasreen Bibi (supra), it was
held by a learned Single Judge of Peshawar High Court that "the nonpayment of dower is
a lawful excuse for the wife to deprive her husband of his companionship". This question
was very vital which was not considered by the two subordinate Courts.
6. The learned Appellate Court proceeded on the premises that it was mentioned in
column 16 of the Nikahnama, which is an admitted document, that eight tola golden
ornaments were given to the wife/petitioner, which was sufficient proof of payment of
prompt dower. Learned Appellate Court ignored the material fact that it was not the case
of the respondent No. l who all along the trial before the Family Court pleaded that the
prompt dower was paid on the fourth day after the marriage. There is an Iqrarnama on
record which was exhibited before the Trial Court which is claimed to be attested by a
Notary Public. There are allegations and counter allegations on the execution of such
Iqranama which were not considered by the learned trial Court. At the same time, I may
observe that it is very strange to note that a husband took his wife to the City Court
premises at Karachi just four days after marriage and got the Iqramama executed before
the Notary Public in respect of payment of prompt dower of Rs.40,000. This fact is
destructive to the contents of column 16 of the Nikahnama. Again, this aspect of the case
was not considered by the Appellate Court.

6. The appeal of the respondent No. l against the decree of suit for past maintenance was
allowed and the suit of the petitioner for maintenance was dismissed on the same ground
that since the dower amount was paid, there was no justification available to the
petitioner to live apart from her husband. In such circumstances past maintenance was
also declined to the petitioner. It is pertinent to observe that the learned Family Court
framed as much as five issues and gave negative finding on the issue that "Whether the
plaintiff/petitioner is living away from the defendant without any just cause." This
finding was upset by the Appellate-Court without looking into evidence led by both the
parties and the law laid down by the superior Courts.

7. After hearing both the learned counsel at length and after going through the record, I
am of the considered view that the learned Appellate Court had not considered the case of
the petitioner in its true perspective and the view of the law laid down by this Court,
which was binding on him. In such circumstances, both these petitions are accepted and
the impugned judgments are set aside with the result that both the appeals filed by the
petitioner will be deemed to be still pending before the concerned Court of appeal. The
case is remanded to the Appellate Court for reconsideration on merits after giving notice
to the parties and with the direction to dispose of the same preferably within a period of
three months from the date of receipt of this order. All the observations made hereinabove
are tentative in nature and in no manner may prejudice the mind of the appellate authority

Q.M.H./M.A.K./K-75/K Petition allowed