2017 PLP 402 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned Constitution Petition, petitioner Ashraf Ali Kalhoro has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with prayer to set aside the impugned judgment dated 24.12.2014, passed by the Court of learned 1st Family Judge, Naushahro Feroze.

2. Necessary facts spelt out from instant petition are that petitioner contracted his marriage with respondent No.2 Mst. Rozeena about 07 years ago against dower of Rs.5000/-, which was paid by him in shape of one gold finger ring worth Rs.5000/- to Rs.6000/-. Petitioner properly maintained and fulfilled the demands of respondent No.2 and they were passing their marital life happily, but the parents of respondent No.2 abducted her and petitioner lodged FIR No.13/2014 against them regarding abduction of his wife. Subsequently, the father and brothers of respondent No.2 quarreled with police and such FIR No.14/2014 was lodged by SIP Ghous Bux Shar against them. Respondent No.2 under the pressure of her family filed Family Suit No.772 of 2014 for dissolution of her marriage by way of Khulla in the Court of learned 1st Family Judge, Naushahro Feroze. After service of summons, petitioner filed written statement and during pre-trial proceedings, petitioner offered before the learned Family Judge that he is willing to keep the respondent No.2 in his house, but she absolutely refused to join the petitioner, hence pre-trial proceedings for reconciliation were failed. It is further averred that there was no direction in impugned judgment for return of dower amount and other benefits to the petitioner, hence impugned judgment is liable to be set-aside.

3. Learned counsel for petitioner contended that during the reconciliation proceedings, petitioner had offered to keep the respondent in his house as wife and he also produced some villagers before the learned trial Court in order to prove that respondent No.2 was instigated by her mother and other relatives, but she refused to join him; that learned Family Judge neither framed issues nor recoded evidence of the parties as she was misguided by her family and even order is silent about return of dower amount and other benefits to the petitioner though marriage tie has been dissolved by way of Khulla, hence impugned judgment may be set-aside and trial Court may be directed to frame issues and record evidence of the parties and pass a fresh judgment.

4. Learned AAG vehemently contended that impugned judgment was passed due to failure of pre-trial proceedings, hence contentions raised by learned counsel for petitioner are controverting to the relevant provisions of law.

5. Heard learned counsel for the parties and scanned the record carefully.

6. Perusal of record reflects that respondent No.2 filed suit for dissolution of marriage by way of Khulla against the petitioner and pre-trial proceedings for reconciliation were conducted by learned Family Court which remained fruitless, consequently, marriage was dissolved by way of Khulla. The operative part of the impugned judgment is reproduced as follows:- "I have tried for reconciliation between the parties but the plaintiff is bent upon for dissolution of marriage. She is not willing to continue this marriage tie. The contention of plaintiff is also supported with record even produced by the defendant. It is well settled that hateful union cannot be forced to continue. Resultantly, this pre-trial proceeding is failed. For the aforesaid reason and circumstances the suit of the plaintiff is hereby decreed and her marriage with the defendant stands dissolved by way of Khulla, with no order as to costs. Let the decree be prepared for knowledge of both parties and will take effect after iddat period."

7. While considering the authenticity of the contentions raised by learned counsel for petitioner, it would be advantageous to have a glance upon section 10(4) of the Family Courts Act, 1964, which is reproduced as follows:- "S.10(4)

If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording evidence; 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."

8. The intent and wisdom behind the promulgation of amendment in section 10(4), West Pakistan Family Courts Act, 1964, was to expedite the disposal of matrimonial disputes of the spouses, as due to the lengthy process of proceedings, the object of prompt justice could not be achieved and obtaining of divorce became a difficult task for a wife. Due to consumption of years in conclusion of the trial, which was not only causing unnecessary delay but was also colossal hurdle for a woman to re-marry due to the advancement of her age. Marriage is a most important segment of Muslim society to ensure the continuity and stability of family bond. Islam believes upon a happy and congenial atmosphere in matrimonial life. If a husband wants to dissolve the marriage tie, he is authorized to do by exercising such right by pronouncing divorce directly without any embargo. Indeed, at the time of solemnization of marriage, free-will and consent of woman is essential which shall be expressed in presence of Nikah Khawan and witnesses. Similarly, wife has been accorded a right and choice to continue her marriage tie voluntarily and she could not be constrained to maintain her marital tie in a hatred atmosphere against her wish and whim. Khulla is a right of divorce conferred upon a woman to obtain divorce from her husband if she feels that the matrimonial relations are so strained and due to cruelty, non-maintenance, hatred, maltreatment or any other unwarranted circumstances, she could not reside with her husband with love and affection as well as within the limits prescribed by Divine Law. Per injunctions of Islam, Khulla is a conditional divorce against restoration of dower to the husband if paid to the wife or to be foregone by the husband. Bridal gifts presented by the husband before or after the marriage to his wife, are not included in the domain of dower, and husband could not claim the return of bridal gifts from the wife in lieu of Khulla. It is well settled that in the case of dissolution of marriage by way of Khula, the dower amount, if already paid to the wife, shall be restored to the husband but if dower was not paid to her then it is not to be paid to the wife as the wife has to forego that amount in lieu of Khula for which she has knocked the door of the Family Court.

9. It is incumbent upon the Family Court while exercising powers under the proviso of section 10(4) of the Family Courts Act, 1964, to initiate utmost logical and meaningful efforts for reconciliation where marriage subsists, to emerge a compromise for harmonious and congenial re-union of the spouses with a view to protect their marital tie from further corrosion. Prime object of such proceedings should be to probe to surface the root causes of the disputes creating hatred and disagreement between the spouses and such proceedings should not be restricted for one sitting and if it is essential, the concerned family members may be called for participation in reconciliation proceedings by the Family Court to resolve the controversy in respectable manners between the spouses to save the family bond which is prime object of the Family Laws. Pre-trial proceedings are not mere a tool of obtaining Khulla as the frequent break up would be detrimental to the society at large. Pre-trial proceedings should not be conducted in a routine manner, nevertheless, physical presence of the husband and wife is mandatory at the occasion of reconciliation and Family Court should take all possible measures to ensure presence of the spouses at that juncture of reconciliation. It is significant to mention that neither any counsel nor any member of the family of the parties could be permitted to represent themselves before the Court in absence of the wife nor any statement of denial on behalf of the wife should be accepted if she is away from the Family Court when case is fixed for pre-trial.

10. Section 10(4) of the Family Courts Act, evolves a mechanism to expedite the conclusion and disposal of suit for dissolution of marriage, which empowers the Family Court that while conducting pre-trial proceedings, if reconciliation efforts resulted in failure, the Court shall pass decree for dissolution of marriage straightway and shall also restore to the husband the dower amount or any article given in shape of dower received by the wife in consideration of marriage at the time of marriage and in this context the Court has no other preference. If husband failed to prove the factum of payment of dower to his wife, Family Court shall not consider said aspect of the controversy mere on his verbal claim and husband would be at liberty to file appropriate proceedings to avail such remedy. In case, Khulla was granted in lieu of restoration of dower and if wife failed to comply with such directions, decree of Khulla will remain intact and non-compliance of such direction would not invalidate the subject decree and husband may file proper proceedings against wife for its recovery in accordance with law.

11. Adverting to the merits of instant petition, due to domestic disputes respondent No.2 left petitioner's house, and he lodged FIR No.13/2014 against her father and brothers for her abduction and dragged them in a false case. Instantly, another FIR No.14/2014 was registered against the father and brothers of respondent No.2 alleging a quarrel with the police. Due to the cruel conduct and lodgment of criminal cases, respondent No.2 developed hatred against the petitioner, thus she vehemently refused to join the petitioner during reconciliation proceedings. Admittedly, petitioner to substantiate his claim of payment of dower, has failed to produce copy of Nikahnama with endorsement in the relevant column that he had given a gold ring worth Rs.5000/- to respondent No.2 as dower or acknowledgement receipt for receiving any ring by her at the time of marriage and execution of Nikahnama. In absence of any solid proof that respondent No.2 had received dower from the petitioner, Family Court was not obliged to grant Khulla in lieu of restoration of dower by respondent No.2 to the petitioner as envisaged under section 10(4) of Family Courts Act, 1964.

12. As the sequel of above discussion of facts and circumstances, petitioner has failed to point any illegality or material irregularity in impugned judgment dated 24.12.2014 passed by learned Family Judge, Naushahro Feroze which is just and well discussed, hence does not call for any interference and stands maintained. Consequently, instant petition stands dismissed being devoid of any legal substance. ZC/A-156/Sindh Petition dismissed.