2009 PLP 1745 (YLR)

M.A. ZAFAR, J.

Appellant has assailed the order of learned Judge in Chamber in this Intra-Court Appeal, whereby it was observed that a wife, who seeks dissolution of marriage on the basis of `Khula', cannot be deprived of her valuable nights as to the dower amount.

2. It is contended by learned counsel for the appellant that although the respondent has sought dissolution of marriage by invoking the provisions of section 2 (ii) and (iv) of Dissolution of Muslim Marriages Act, 1939, but learned Court decided the matter under section 10 of West Pakistan Family Courts Act, 1964. Having proceeded under the provisions of section 10(4) of West Pakistan Family Courts Act, 1964, he observed that consequent upon dissolution of marriage on the basis of 'Khula', the dower amount is not legally permissible. Learned counsel for the respondent, on the other hand, has submitted that by pronouncement of the judgment by learned Family Court, the matrimonial relationship between the appellant and the respondent, has come to an end. The respondent has claimed dissolution of marriage under section 2 of the Act, 1939, therefore, she is not debarred from her claim, qua the dower amount. She supported her contentions by referring to the cases of "Farida Khannum v. Maqbul Ilahi and 2 others" (1991 MLD1531), "Mukhtar Ahmed v. Ansa Naheed and 2 others" (PLD 2002 SC 273), "Mst. Saiqa v. Addl. District Judge and other 2003 YLR 70" "Mst. Saima Irum and 3 others v. Tariq Javed and another" (2006 MLD 83) and "Doctor Akhlaq Ahmad v. Mst. Kishwar Sultan and another" (1986 MLD 464). Learned counsel has emphasized that after expiry of period of `Iddat', the relationship inter se the parties as husband and wife, has ceased to exist and as such, the dissolution so declared by the Court, cannot be set aside in the instant proceedings. Learned counsel has submitted that respondent has neither invoked provisions of section 10(4) of the Family Court Act, 1964 nor her statement was recorded with an intention that the marriage be dissolved under this provision of law.

3. Heard learned counsel for the parties and record perused.

4. The respondent has filed a suit for dissolution of marriage under the provisions of section 2(ii) and (iv) of Dissolution of Muslim Marriages Act, 1939. The marriage under this provision of law cannot be dissolved on the basis of pleadings of parties and on failure of reconciliation between the parties. The ground urged in the suit can only be decided, when the issues are framed, evidence is led and trial is conducted. The marriage under subsection (4) of section 10 of West Pakistan Family Court Act, 1964, on the basis of `Khula', can be dissolved in summary proceedings and the only requirement in such proceedings is to provide an opportunity of reconciliation and as a consequence of failure thereof, decree for dissolution can be passed and in this event, the wife has to forego her claim of dower.

5. Perusal of record reflects that learned Judge Family Court has adopted the procedure as provided in the provisions of West Pakistan Family Court Act, 1964, recorded the statement of the parties and passed the decree for dissolution. Learned Court passed the order impugned in the writ petitioner, ignoring the fact that the provisions invoked before him were under the Act of 1939 and in such proceedings, a regular trial was an essential requirement. Such judgment is not sustainable in the eye of law. Learned Judge in Chamber has confined himself to the claim of the respondent qua her dower.

6. The impugned judgment/orders, by allowing this appeal, are set aside id the case is remanded to learned Judge Family Court for a fresh decision, after hearing the parties and conducting a regular trial on framing of issues from divergent pleadings of the parties.

7. Since the matter has already consumed a considerable time and further delay will prejudice the rights of the parties, therefore, learned counsel is directed to decide the matter within a period of three months from today. Learned Court will provide each party, one month's time for recording to the evidence. In case, a party fails to conclude his/her evidence, within the stipulated period, learned Court will apply penal provisions of law liberally and will close the evidence of such party. Unnecessary adjournments will not be granted to either party.

8. Learned counsel, on conclusion of trial will decide the matter according to the provisions of law, which have been invoked before him. The parties will appear before learned Judge Family Court on 18-10-2008, who will proceed in the matter forthwith. Disposed of. H.B.T./A-81/L Case remanded.