P L D 2003 Lahore 260 (PLP)

Muhammad Sharif Khokhar for Respondent. Date of hearing: 17th January, 2003. This be considered as admitted case. Brief facts in this writ petition are that respondent No. 1 filed a suit for dissolution of marriage against the petitioner which was contested by filing the written statement and the petitioner filed a suit for restitution of conjugal rights and consolidated issues were framed. The evidence was produced and the learned Family Court Judge decreed the suit for dissolution of marriage in favour of the respondent No. 1 and against the petitioner while recording Issue No. 5 in favour of plaintiff on the basis of Khula' in consideration of her right regarding dowry amount and also Issue No.4 regarding cruelty in favour of plaintiff and accordingly decided Issues Nos. 1, 2 and 3 in the negative. The learned Family Court Judge, vide a short order dated 21‑5‑2002 observed that in view of that decree in a suit for dissolution of marriage suit filed by the defendant has become infructuous and is dismissed. Against these consolidated judgments without availing remedy of appeal in a suit for restitution of conjugal rights the learned counsel for the petitioner has assailed the consolidated decrees in both the suits before this Court in the instant writ petition.

2. His arguments are that the amended issues were framed where the issue regarding restitution of conjugal rights was added. The learned Family Court Judge, without deciding the issue of restitution of conjugal rights dismissed the suit for restitution of conjugal rights which is not in accordance with the settled principle of law. He further submits that the learned Family Court Judge while deciding the issue regarding Khula' has also misread the evidence on record. It was admitted by the respondent No. 1 that dower was paid to her but later on it was snatched from her. When once is paid to the parties then the Khula' cannot be granted on the basis of consideration of dower. The respondent No. 1 is only entitled to file a suit for the recovery of dower. He further submits that even there is no evidence for cruelty, therefore, the judgment passed by the learned Family Court Judge, is not tenable in law and issuance of certificate on the basis of dissolution of marriage is also obtained through connivance of the respondent No. 1 with Arbitration Council as no Arbitration Council was constituted and the certificate itself shows that no Arbitration was constituted, Therefore, it is also not sustainable in law.

3. Learned counsel for the respondent submits that the learned Family Court Judge, while discussing evidence on issues passed judgment in the suit for dissolution of marriage and if due to an act of Court some issues are left then the learned Appellate Court can decide that issue and that error of Court should not prejudice the rights of the parties, relied on "Major (Recd.) Syed Baqar Hussain Shah v. Mst. Rashida Begun" (1992 MLD 2515). He further argued that the learned Family Court Judge, while deciding Issue No.4 categorically decided that respondent No. 1 was the victim of cruelty and decided that issue against the present petitioner. Any marriage which dissolved on the basis of Khula' cannot be challenged in writ petition. And marriage can be dissolved on the basis of cruelty. The cruelty is proved through the evidence of D.W.1. Therefore, the judgment of the learned Family Court Judge, cannot be questioned in the Constitutional jurisdiction.

4. I have heard the learned counsel for the parties and perused the record.

5. P.W.1 the plaintiff appeared as her own witness and she stated on oath that she was given article of dowry and her marriage was contracted on the basis of dower Rs.15,000 which is not paid to her. She had been living in the house of the defendant for three years but he did not give maintenance and she had developed hatred towards defendant as she was subjected to physical beating and she is ready to forego Haqul Maher, as she has not taken the Haqul Maher. P.W.2 supported the respondent/plaintiff's statement and he also stated in examination‑in‑chief that Haqul Maher was not paid and that she developed hatred and cannot live in matrimonial bondage with the petitioner/defendant. Defendant appeared as D.W.1 and stated that he has paid the Haqul Maher and it is incorrect that the respondent No. 1 has developed hatred against him. He also admitted that he has filed four suits against respondent No.

1. D.W.2 in his cross‑examination supported D.W.1. Further in cross‑examination he admitted that it is correct. The learned Judge Family Court has given issue-wise findings and dissolved the marriage on the basis of Khula'.

6. As far as the first point raised by the learned counsel for the petitioner, that dower has been paid to the respondent No. 1, is concerned it is admitted in paragraph No. 1 of the suit that the dower was paid at the time of Nikah but was immediately taken back while in the evidence respondent No.1 as P.W.2 has categorically stated that dower was not paid to her but she was prepared to forego dower if Khula' is granted to her. The factum of cruelty stands proved from evidence of respondent No. 1 which was supported by P.W.2 and also D.W.2 the defendant witnesses.

7. Although the basis of Khula' is the return of considerations of benefits already received by wife but Khula' is also granted to wife on the basis of facts and circumstances which show that the union of the matrimonial spouses cannot remain within the domain and limits of Allah and whenever any Court cotters to the conclusion after looking into the evidence that factum of cruelty has been proved then the Court will give a release to wife from the matrimonial ties. The learned Family Court Judge, has decided Issues Nos. 4 and 5 against the petitioner. Even otherwise in the evidence the respondent No. 1 and all P. Ws. have denied the payment of dower.

8. The second point raised by the learned counsel for the petitioner is that the learned Family Court Judge, vide a separate judgment and decree failed to give findings on issues related to the‑restitution of conjugal rights. It is admitted fact that the learned Family Court Judge has not given findings on issues which were related to the restitution of conjugal rights but since the judgment and decree in the dissolution of marriage case overcomes the suits of restitution of conjugal rights and it is absolutely binding on the suit for restitution of conjugal rights. As learned Family Court had dissolved the marriage on the basis of Khula' he considered the suit for restitution of conjugal rights as infructuous. Moreover, if the learned trial Court had decided issues relating to Khula' and cruelty which stand established by the evidence, the suit for restitution of conjugal rights cannot be decreed on the basis of Issue No.6 as the marriage stands dissolved by way of Khula' on the basis of cruelty and subject to the consideration of her foregoing of dower money.

9. Even otherwise no one can be punished for an act of Court and if the learned trial Court has left one issue regarding restitution of conjugal rights it will not prejudice the petitioner's case and in a suit for dissolution of marriage when the marriage stands dissolved on the basis of Khula' no decree can be granted in the suit for restitution of conjugal rights. Omission to give finding on this issue will not affect the merits of the case, therefore, no interference is made in the impugned judgment; instant writ petition being devoid of force is dismissed. H.B.T. /M‑1679/L Petition dismissed.