1988 PLP 1644 (CLC)

‑‑‑R. 13‑‑Constitution of Pakistan (1973), Art.199‑‑Setting aside of ex parte decree‑ ‑‑Application by husband against ex parte decree dismissed on the ground that wife having contracted second marriage after ex parte decree, such application had become infructuous‑‑Held, although wife had contracted second marriage soon after obtaining ex parte decree, yet that could hardly be treated as valid ground for throwing out application of petitioner for setting aside ex parte decree‑‑Such application ought to have been decided after holding inquiry into the question whether husband had sufficient reasons for not appearing in Court to contest proceedings for dissolution of marriage‑‑Family Court had proceeded to dismiss application of husband on ground which was not available under law‑‑Such order would be of no legal effect‑‑Application of husband for setting aside of ex parte decree would be treated as still pending and Family Court was directed to dispose of same in accordance with law. R.A. Awan fcr Petitioner. Abdul Baqi for Respondent. Date of hearing: 11th February, 1978. The respondent was married to the petitioner on 27‑6‑1976. The marriage did not prove to be a success and the respondent initiated proceedings for the dissolution of her marriage. On 25‑3‑1977 she obtained an ex parte decree from the Family Court at Ferozewala. On 11‑4‑1977 the petitioner applied for setting aside of the ex parte decree. Instead of holding an inquiry into the question whether the petitioner was prevented by sufficient cause from not appearing in his Court to contest the proceedings, the learned Family Judge dismissed the application of the petitioner on 9‑10‑1977 on the ground that as the respondent has contracted a second marriage the application had become infructuous. From the order of the learned Family Judge the petitioner went in appeal before the District Judge but his appeal was dismissed on 20‑10‑1977 on the ground of incompetency. The petitioner has now come to this Court to challenge the order of the learned Family Judge.

2. It is true that the respondent contracted a second marriage soon after obtaining the ex parte decree but that could hardly be treated a valid ground for throwing out the application of the petitioner for setting aside the ex parte decree. This application ought to have been decided after holding an inquiry into the question whether he had sufficient reason for not appearing in the Court to contest the' dissolution of marriage proceedings. As the learned Family Judge has proceeded to dismiss the application of the petitioner on a ground which was not available to him under the law, I declare his order to be of no legal effect. The application of the petitioner for the setting; aside of the ex parte decree should be treated as still pending and' the learned Family Judge should dispose it of in accordance with law. In view of the peculiar relationship between the parties there will be no order as to costs. A . A . / P‑39/ L Petition accepted.