2017 PLP 369 (YLRN)

MRS. ASHRAF JAHAN, J.

Through this petition, petitioner Javed Khan has challenged the Order and Preliminary Decree dated 17.05.2014, passed by learned IXth Civil and Family Judge, Karachi (East) in Family Suit No.1440/ 2013, whereby the marriage between the parties was dissolved by way of Khulla.

2. The relevant facts necessary for disposal of instant petition are that respondent No.1 filed a Family Suit bearing No.1440/ 2013 for dissolution of marriage by way of Khulla and recovery of dowry articles, before IXth Family Court, District (East) Karachi. During the pendency of the case when matter was fixed for pre-trial, the petitioner filed an application under section 10(4) of the West Pakistan Family Courts Act, 1964 on the ground that the respondent has leveled serious allegations against the petitioner, which have been rejected by him, therefore, case cannot be decided until and unless evidence is led by both the parties. But the trial Court dismissed the application and dissolved the marriage between the spouses by way of Khulla.

3. Heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the trial Court instead of framing issues in the present case had dissolved the marriage between the parties by way of Khulla without discussing the grounds taken in application or assigning any reason, therefore, such order passed by learned Family Court is absolutely unlawful and arbitrary. It is further contended by learned counsel that the Family Court has ignored the important point of law that when the wife takes plea in her suit that Mahr was not paid to her by her husband and the husband denies such allegation, in such cases evidence is required. Additionally, the proviso to section 10(4) of the West Pakistan Family Courts Act, 1964 clearly indicates that order of dissolution of marriage and restoration of Haq Mahr are to be passed simultaneously. Therefore, the order and preliminary decree dated 17.05.2014 may be set aside and the case may be remanded to the Family Court with the direction to decide the same afresh as per law. In support of his contentions, learned counsel for the petitioner has relied upon the cases of Sardar Abid Iqbal v. Tabassam Khursheed (2009 YLR 1745), Mst. Nazir v. Additional District Judge, Rahim Yar Khan and 2 others (1995 CLC 296) and Mst. Saima Irum and 3 others v. Tariq Javed and another (2006 MLD 83).

4. On the other hand, it is contended by learned counsel for the respondent No.1 that the Family Court has decided the case in accordance with law and the present petition is filed only to drag the respondent into unnecessary litigation. The grounds taken in the present petition are false and concocted; therefore, the petition is liable to be dismissed. During the course of arguments, learned counsel for the respondent further submitted that if the present petitioner is so aggrieved about the allegations leveled against him in the suit, she is ready to give in writing that such allegations are not pressed.

5. I have considered the arguments and perused the case record. Admittedly, the respondent No.1 has filed the Family Suit against the petitioner for dissolution of marriage by way of Khulla, and recovery of dowry articles. During the proceedings after filing of written statement the matter was kept for pre-trial proceedings. The certified copy of the diary sheet reveals that from 23.12.2013 to 28.02.2014 on six dates of hearing the matter was fixed for pre-trial proceedings, but either the petitioner or the respondent were absent and pre-trial proceedings could not be held. Meanwhile on 28.02.2014 the present petitioner moved application under section 10(4) of the West Pakistan Family Courts Act, 1964, the said application was heard and order was passed on 17.05.2014, learned Family Judge while dismissing the above application partly decreed the suit, the marriage between the parties was dissolved by way of Khulla, however, for rest of the claims, including dower amount, it was ordered that issues will be framed and thereafter the same will be decided after recording the evidence of both the parties. In the impugned order trial Court has observed that as the lady has developed hatred against her husband, and is even willing to forego her dower amount, therefore marriage was dissolved by way of Khulla. As in this case, the issue of dower is disputed, therefore, the same cannot be decided without recording of evidence of both the parties. It is also relevant to mention here that counsel for the respondent during the course of her arguments has clearly stated that the allegations leveled in the plaint are not pressed. In the above situation, when the allegations in respect of maltreatment etc. are not pressed, the contentions of the petitioner as regard to malign his character have become redundant. Thus, in the light of above discussion, present petition is dismissed with the observation that since the issue regarding payment of dower is disputed the Family Court will decide it along with other issues. However, the decree of dissolution of marriage by way of Khulla shall remain intact. MM/J-4/Sindh Petition dismissed.