2009 PLP 1124 (MLD)

ABDUL RASHEED KALWAR, J.

Petitioner has filed this constitutional petition against the concurrent judgment, dated 28-10-2008 passed by the Vth Additional Sessions Judge Karachi East and judgment, dated 23-12-2006 passed by XVIth Civil and Family Judge and Judicial Magistrate Karachi East and decree of the said Family Court, dated 30th December, 2006. The case of the petitioner is that respondent No.1 had contracted two marriages after the marriage of petitioner. The petitioner filed family Suit No.318 of 2005 with prayer of maintenance at the rate of Rs.5000 per month w.e.f. October, 1999 and onwards and dower amount of Rs.2,00,

000. The family judges partly decreed the suit to the extent of maintenance at the rate of Rs.1500 per month w.e.f. October, 1999 and onwards but dismissed the prayer of dower observing that such amount is payable either on the death of the party or on the divorce, the appellate Court also concurred with same finding of lower Court in respect of dower amount therefore, this petition has been filed. Petitioner being aggrieved and dissatisfied with the findings of two Courts below in respect of dower has filed this constitutional petition with following prayer:-- Under the above mentioned circumstances most respectfully it is prayed that this Hon'ble Court may be pleased to set aside, recall the judgment and, decree passed by the respondents Nos. 2 and 3 in Family Suit No. 318 of 2005. Family Appeal No.5 of 2007 filed by the petitioner and Family Appeal No.9 of 2007 whereby the relief for the grant of deferred amount claimed by the petitioner was disallowed, accordingly the 'relief for the recovery of deferred dower amount against the respondent No.1 may please be allowed in petitioner favour, the above petition may please be allowed on consideration the facts, grounds mentioned hereinabove with cost in favour of the petitioner against the respondent No.1 and/or .pass any such other order, orders as this Hon'ble Court may deem think fit and proper in view of the circumstances of the case. Learned advocate for the petitioner has contended that there is no dispute regarding factum of contracting two subsequent marriages by respondent No.1. He has further contended that both lower Courts have not considered provisions of section 6(5)(a) of the Family Law Ordinance, 1961 which prescribed immediate payment of entire dower prompt or deferred due to existence of wife. Learned advocate for respondent No.1 argued that respondent No.1 is low paid employee and he does not have resources even to comply with the orders passed by the two Courts below regarding payment of maintenance. He stressed on the point that petitioner, and respondent No.1 are still wedded husband and wife, whereas present respondent No.1 had divorced two wives except the petitioner, therefore, the condition laid down under section 6(5)(a) of the Family Law Ordinance, 1961 is not applicable under the circumstances. Respondent No.1 is ready to live with the petitioner if she desires so. He also claimed that respondent No.1 has love and affection for the petitioner. Respondent No.1 is ready to handover his whole salary to the petitioner if she decides to live with respondent No.1. Heard learned counsel for the parties and gone through the material available on record as well as case law. The subsection (5), clause (a) of section 6 of the Family Law Ordinance reads as follow:-- 6(1)

(2)

(3)

(4)

(5) Any man who contracts another marriage without the permission of the Arbitration Council shall-- (a) pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue: Both the judgments of two Courts below have completely avoided to address the issue in the light of section 6(5)(a) of the Family Law Ordinance, 1961. The both Courts below were expected to decide the matter according to the aforesaid provisions of law. The contentions raised by the advocate for respondent No.1 may be very appealing under the circumstances, but the provisions of law cannot be done away with, for any compulsive reason. Therefore, the petition is allowed. The judgment dated 28-10-2008 passed in Family Appeal No.5 of 2007 by Vth Additional Sessions Judge Karachi East and decree/ judgment, dated 30-12-2006 passed in Family Suit No. 318 of 2005 by XVIth Civil and Family Judge and Judicial Magistrate Karachi East are set aside to the extent of findings and operative part in respect of dower. The matter is remanded to the Family Court for deciding issue of dower in the light of section 6(5)(a) of the Family Laws Ordinance, 1961. H.B.T/S-65/K Case remanded.