2006 PLP 357 (YLR)

MAULVI ANWARUL HAQ, J.

On 10-2-2000 the respondent No.3 filed a suit against the petitioner. In the plaint it was stated that she was married to the petitioner on 21-8-1995. The dower was fixed as 20 tolas of gold and a Square of agricultural land and it was further agreed that her maintenance will be paid at the rate of Rs.10,000 per month. The Rukhsati was to take effect after three months but the same could not take place for reasons attributable to the petitioner. She sought a decree for dissolution of marriage for non-payment of maintenance, non-payment of prompt dower for which suits have been filed for non-performance of marital obligations and Khula. On 28-4-2000 the learned trial Court observed that the petitioner has not turned up despite publication of notice in the newspaper and he was proceeded against ex parte. Evidence was recorded and a decree for dissolution of marriage was passed on 19-5-2000 on the ground of Khula with the condition that she will forego her claim for maintenance.

2. On 24-9-2003 the petitioner filed an application for setting aside of the said ex parte decree dated 19-5-2000. I may note here that apart from contending that he had not been served in the manner prescribed by law, the other objection raised to the ex parte decree was that the learned Court ought to have adjusted the dower as well in lieu of Khula. On 22-4-2004 the respondent filed a written reply stating that the application is barred by time. She then stated that in a declaratory suit filed by the petitioner, he has stated that she is 'not his wife and no Nikah was performed between the parties. The said suit was dismissed. Her suit for recovery of dower has been decreed on 2-9-2003 and against which an appeal was filed. It was then stated that after the decree dated 19-5-2000, the respondent has contracted another marriage and as a result whereof she has borne two daughters and she is living with her husband Muhammad Jamil. Similarly, the petitioner ' has contracted another marriage and he has children from the same.

3. On 1-7-2004 following issues were framed by the learned trial Court:-- (1) Whether the marriage of the petitioner was solemnized with the respondent? OPP. (2) Whether the petition is time barred? OPR. (3) Whether the respondent has obtained ex parte decree fraudulently? OPR (4) Whether the marriage between the parties never existed? OPA (5) Whether the Nikahnama was forged one? OPA (6) Whether the petitioner is entitled for the jactitation of marriage? OPA. (7) Relief. On 2-9-2004 the respondent filed an application for dismissal of the said application. It was in reply to this application that the petitioner stated that the real dispute between the parties is that no Nikah took place between them and that on the basis of the dissolution decree, the respondent is raising claims and filing suits against him. Vide order dated 18-1-2005 the learned Judge, Family Court, dismissed the application for setting' aside of the ex parte decree. A first appeal filed by the petitioner has been dismissed by a learned Additional District Judge, Multan, on 15-6-2005.

4. Learned counsel for the petitioner contends that once issues have been framed, the learned Judge, Family Court, could not have dismissed the application without recording evidence. According to him, there is nothing on record that he was duly served. He has also vehemently urged that there was no Nikah between the parties. At the same time, he pleads that the dower ought.. to have been adjusted in lieu of Khula.

5. I have gone through the copies of the records, with the assistance of the learned counsel. Before I proceed further, I may state that upon my query, the learned counsel admits that after the said dissolution decree both the parties have contracted second marriages and are living with their respective spouses having their respective children.

6. I have already noted 'above that in the application for setting aside the ex parte decree, apart from the plea that he was not served the only attack on the merits of the decree was that dower also ought to have been adjusted in lieu of Khula. Even before me, the learned counsel asserts that the dower ought to have been adjusted. The inference is that if the dower is adjusted then the plea of non-existence of a valid Nikah between the parties would not be pressed.

7. I also note that after ex parte proceedings, the learned trial Court recorded evidence. This included the copy of a Nikahnama between the parties Exh.P.1. Apart from the said dower, the Nikahnama records a condition that the petitioner will be liable to pay maintenance at the rate of Rs.10,000 per month. The amount of dower recorded is prompt. It is admitted position, and I have decided the connected writ petition as well today, that the dower was demanded and not paid and a decree was passed. It is well-settled that upon non-payment of prompt dower, a wife can claim separate maintenance. This being so, a substantial claim stands remitted in lieu of Khula.

8. In view of the said admitted affairs on record and the pleas being taken by or on behalf of the petitioner, I am not at all inclined to interfere in exercise of constitutional jurisdiction. So far as the plea that the issues ought to have been decided, a bare look on the issues would show that these could never have been the subject matter of an application for setting aside of ex parte decree particularly in view of the contents of the applications filed by the petitioner. The writ petition is dismissed in limine. F.M./S-3/L Petition dismissed.