2004 PLP 1932 (CLC)

6. The suit for restitution of conjugal rights was filed by the respondent/plaintiff Muhammad Nadeem Qadir with a prayer that a decree for restitution of conjugal rights be passed in his favour on 5th March, 2003. Written statement was filed by the petitioner. On preliminary objection of non-maintainability of suit and the jurisdiction of the Court on the basis that plaintiff is residing in Singapore and defendant is residing in America having the nationality of America, that there were issues out of the wedlock of plaintiff and defendant; and no maintenance allowance has been paid by the plaintiff and he deserted himself from the house of the defendant and that the plaint is not signed by him and he was estopped by his conduct and that he has taken 20,000 dollars and jewellery worth Rs.10,00,000 from the defendant and there is no chance of reconciliation. In the prayer she prayed for that the suit of the plaintiff be dismissed and decree for maintenance at the rate of 1000 dollars per month per child may be passed against him.

7. It is always settled law that the decree follows the prayer in the plaint. No suit for dissolution of marriage was filed by the petitioner with the averment that she wants dissolution of marriage on the basis of Khula, Learned Judge Family Court, keeping in view the amended provision of section 9 of Family Courts Act, 1964 treating it as plaint dissolved the marriage on the basis of Khula and dismissed the suit filed by the plaintiff. The provisions of section 9 are reproduced as below:

"Amendment of section 9 W.P. Act XXXV of 1964. In the said Act in section 9

(1b) A defendant wife may, in-the written statement to a suit for restitution of conjugal rights, make a claim for dissolution of marriage including Khula which shall be deemed as a plaint and no separate suit shall be for it: 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.

8. From the perusal of written statement the petitioner has nowhere pleaded for dissolution .of marriage on the basis of Khula nor she prayed for dissolving the marriage on the basis of Khula. It is astonishing how learned Judge Family Court even without filing suit for dissolution of marriage treating the written statement as plaint has granted Khula when no prayer for Khula is made nor any prayer for dissolving the marriage on the basis of Khula is added in the written statement.

9. Moreover, section 10 of Family Court Act as amended is reproduced below:

"provided that notwithstanding any decision or judgment of any Court or Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage." If reconciliation fails then learned Judge Family Court is bound to pass a decree for dissolution of marriage forthwith and restore Haq Mehr to the husband in consideration of marriage at the time of marriage. From the record it is apparent that the plaintiff/respondent was in America proposition of reconciliation was not made by the Court in the suit for restitution of conjugal rights on 4-12-2003 respondent made the following statement: And thereafter learned Judge Family Court passed the impugned judgment which is re-produced below:

This is glaring illegality committed by the learned Judge Family Court who has arbitrarily passed decree on the basis of Khula in consideration of Haq Mehr without even recording the statement of defendant or her counsel. 10. " Khula" is a release from the matrimonial bond. The right vest in the woman according to the dictates of Holy Qur'an. Jurisdiction vests with the Court to determine whether condition of Khula exist in the evidence, in the pleadings or the evidence led by the parties. The Court' will release the woman from her matrimonial bond by way of Khula. This right purely rests with the woman according to the dictates of Holy Qur'an because if a woman demands right of Khula she has to return all the benefits received by her from her husband but here is a case where a woman has not filed a suit for dissolution of marriage and has not asked for Khula even in the written statement filed in the suit for restitution of conjugal rights. While determining the right of Khula Court is desired by law to use his best prudence, capability and capacity to find out the truth and the prevalent condition existing for such right. While going through the prayer of written statement it does not contain any prayer for Khula instead in the written statement the petitioner has prayer for allowing maintenance allowance and dismissal of suit for, restitution of conjugal rights, therefore, the Court could not pass a decree on the basis of Khula while dismissing the suit for restitution of conjugal rights.

11. In the second writ petition grievance of the petitioner is that Chairman Arbitration Council passed an order, dated 17-2-2004 by way of approving reconciliation "ﺖﺤﻠﺎﺻﻣﻦﻼﻋﺍ" and the learned Judge Family Court being coram non judice summoned the Chairman on an application filed by respondent No.2 and directed him to issue a certificate of) divorce, which is arbitrary exercise of jurisdiction.

12. Legislature has deviated from the proceedings of C.P.C. and Qanun-e-Shahadat. The judgment and decree passed by the learned Judge, Family Court is compulsorily sent to the Chairman Arbitration Council and the Chairman Arbitration Council treats the same as proceedings in section 7 of the Muslim Family Laws Ordinance, 1961 and upon receipt of such copy the Chairman shall proceed as if he has received an intimation of divorce and shall constitute an Arbitration Council for bringing about reconciliation between the parties and take all steps necessary to bring about such reconciliation. In the present case when the respondent No.2 filed an application for issuance of certificate of divorce before the Chairman Arbitration Council the present petitioner after service of notice appeared and stated that she has not demanded Talaq on the basis of Khula nor she wants the same in any manner in the larger interest of her kids. The Chairman passed an order, dated 17-2-2004 by way of approving the reconciliation "Elan e-Masalhet". Learned Judge Family Court had no jurisdiction to interfere in the proceedings of Chairman Arbitration Council after being functus officio and could not direct the Chairman to issue a certificate of Talaq on the basis of decree, dated 4-12-2003 in a suit for restitution of conjugal rights.

13. Therefore, the learned Judge Family Court wrongly assumed the jurisdiction which was not vested in the Court concerned to set aside the order passed by learned Chairman Arbitration Council. Both the writ petitions are accepted and the impugned judgments being without lawful authority are set aside and the case is remanded to the learned District Judge to entrust the same to some other Court of competent jurisdiction to proceed in accordance with law. No order as to costs. H.B.T./S-168/L Petition accepted.