2005 PLP 1648 (YLR)

This writ petition is directed against the judgment dated 3-9-2004 passed by the learned Additional District Judge, Multan, whereby he upheld the order dated 21-10-2003 passed by the learned Judge Family Court, Multan, whereby the suit filed by the plaintiff/petitioner for dissolution of marriage was decreed on the basis of Khula' in lieu of maintenance allowance and dower by resort to the Proviso to section 10(4) of Family Courts (Amendment) Ordinance, 2002.

2. Brief facts giving rise to this writ petition are that the petitioner/plaintiff filed a suit for dissolution of marriage against the respondent/defendant 'incorporating her claims for recovery 'of dower, maintenance allowance and dowry articles therein in consonance with proviso to section 7 of Family Courts (Amendment) Ordinance, 2002 to the effect that she was married with the respondent/defendant on 14-12-2002 in lieu of dower i.e. golden ornaments 20 tolas and House No.349 measuring 6-1/2 Marlas situated at Ahmad Park Colony Multan. It was also alleged in the plaint that the petitioner/plaintiff was given various articles of dowry worth Rs.4,88,

050. The respondent/defendant subjected the petitioner/plaintiff to torture during abadi without lawful justification. He also did not provide maintenance allowance to the 'petitioner/plaintiff during abadi. As reconciliation between the parties failed, the learned Judge Fa1nily Court passed a decree for dissolution of marriage in favour of the petitioner/plaintiff on the basis of her dower and maintenance allowance as mandated by Proviso to section 10(4) of Family Courts (Amendment) Ordinance, 2002 vide judgment and decree dated 21-10-2003. Feeling aggrieved by the said judgment, the petitioner/plaintiff filed an appeal, before the leamed Additional District judge, Multan, who vide judgment dated 3-9-2004 upheld the judgment dated 21-10-2003 passed by the learned Judge Family Court, Multan. Hence this writ petition.

3. It is contended by learned counsel for the petitioner that both the judgments i.e. dated 21-10-2003 passed by the learned Judge Family Court, Multan and that of dated 3-9-2004 passed by the learned Additional District Judge, Multan" are against law and, facts; that the learned trial Court was not justified in declaring dower and maintenance allowance as consideration of Khula' as the dower had not been paid to the petitioner/plaintiff that the trial Court went beyond the pleadings of the petitioner/plaintiff as she had not prayed for Khula' in lieu of the maintenance allowance and that both the judgments and decrees may' be modified with the direction to the trial Court to frame the following issues:- (1) Whether 14 tolas of golden ornaments pledged by defendant in National Bank Bosan Road, Multan as ornaments of Haq-ul-Mehr of plaintiff? (2) Whether the plaintiff is entitled to recover a House No.349 measuring 6-1/2 Marlas situated in Ahmad park Multan as, Haq Mehr as mentioned in Column No.14 of Nikahnama dated 14-12-2002 or in alternative 20 lacs?

4. On the other hand, learned counsel for the respondent has supported the impugned judgment and submitted that as 20 talas of golden ornaments were given to the petitioner/plaintiff as Haq Mehr as mentioned in para. 2 of the plaint, the learned trial Court was justified in passing a decree for dissolution of marriage on the basis of Khula' in lieu of Haq Mehr and maintenance allowance in conformity with the proviso to section 10(4) of Family Courts (Amendment) Ordinance, 2002.

5. The petitioner/plaintiff filed a suit for dissolution of marriage against the respondent/defendant incorporating her claims for recovery of dower; maintenance allowance and dowry articles therein in consonance with proviso to section 7 of Family Courts (Amendment) Ordinance, 2002. As the reconciliation between the parties failed the learned Judge Family Court decreed the suit in favour of the petitioner/plaintiff against the respondent/defendant and declared dower, and maintenance allowance as consideration of Khula".

6. Now the question is whether following issues should be framed by the trial Court or not:- (1) Whether 14 tolas of golden ornaments pledged by defendant in National Bank Bosan Road. Multan as ornaments of Haq Mehr of plaintiff? (2) Whether the plaintiff is entitled, to recover a House No.349 measuring 6-1/2 Marlas situated in Ahmad Park. Multan as Haq' Mehr as mentioned in Column No.14 of Nikahnama dated 14-12-2002 or in alternative 20 lacs? According to the proviso to section 10(4) Family Courts (Amendment) Ordinance, 2002 in case reconciliation fails between the spouses, the Family Court is obliged to pass a decree in suit for dissolution of marriage forthwith restoring to the husband the dower received by the wife in consideration of marriage. The provisions of proviso to section 10(4) Family Courts (Amendment) Ordinance, 2002 are hereby reproduced for facility of reference: - "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 or marriage". It emerges that return of Haq Mehr is sine qua non for decree for dissolution of marriage passed by the Family Court by resort to proviso to section 10(4) of Family Courts, (Amendment) Ordinance, 2002. It is evident from para. 2 of the plaint that as per recitals of Nikanama dated 14-12-2002 golden ornaments weighing 20 tolas as Haq Mehr were given to the plaintiff. Learned counsel for the petitioner/plaintiff has failed to point out any illegality in the impugned order. The learned Family Court, Multan, passed a decree for dissolution of marriage in lieu of dower and maintenance and in the mind of judicial officer dower means paid and unpaid, 'and, therefore, it is not necessary to frame new issues which are also regarding dower. Even otherwise framing of new issues regarding dower would amount to coram non judice.

7. In view of the above circumstances this writ' petition is dismissed. No order as to costs. M.H./S-349/L Petition dismissed.