2015 PLP 1347 (CLC)

ARSHAD MAHMOOD TABASSUM, J.

Mst. Shazia Khan, respondent No.2 herein, on 13-6-2006, instituted suit for dissolution of marriage, averring in the plaint that her marriage with the petitioner was solemnized in the year 1997, whereafter, she remained performing her matrimonial obligations, but the attitude of the petitioner was not good with her from the very beginning; that he developed illicit intimacy with one Mst. Tahira and contracted nikah with her without her (respondent's) permission; that on her protest she was forced out of his house by the petitioner and ever since then she was putting up with her parents; that the petitioner had neither maintained her during period of her desertion nor tried to rehabilitate her instead he occupied the dowry articles given to her by her parents and that he had even not paid her dower amounting to rupees one lac, hence, she had developed extreme hatred against him and was unable to live with him as his wife within the limits prescribed by Allah Almighty. She therefore, claimed decree for dissolution of marriage.

2. The suit was resisted by the petitioner-husband through filing his written statement, wherein, he maintained that he had given her 96 kanals of land by way of tamleeq being her dower; that due to the reason that parties had no off-spring, he got her medically treated, but came to know; that she could not conceive, hence, he contracted second marriage on 6-8-2004, with her concurrence and that he had a son out of his second wife. He further maintained that in case the respondent was not ready to perform her matrimonial obligations, she should return 96 kanals land which he had given her as dower to obtain decree for dissolution of marriage.

3. Learned Judge Family Court, after framing the relevant issues, put the parties to trial. Both the parties produced their pro and contra evidence, and ultimately the learned JFC decreed the suit of the respondent-plaintiff on 16-9-2006.

4. Being dissatisfied with the impugned decree, the petitioner preferred the instant constitutional petition.

5. This writ petition was earlier allowed by this court vide judgment dated 20-5-2009. However, the respondent-wife preferred C.P.L.A. No. 974-L of 2009, which was converted into appeal and was allowed by the apex court on 25-6-2009 with the direction to this court to decide the matter afresh.

6. I have heard the arguments of learned counsel for the parties and myself perused the record with their able assistance.

7. It appears that the decree for dissolution of marriage was solicited by the respondent-wife on the ground of cruelty, non provision of maintenance and the petitioner having contracted second marriage without her permission. The grounds available to a woman married under Muslim Law include, among others the following, as provided in section 2 of the Dissolution of Muslim Marriages Act, 1939:

(i) (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years. (ii-a) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961."

8. It is note worthy that the respondent wife had not claimed decree for dissolution of marriage on the basis of Khula instead, as pointed out above, she had claimed for the said decree on the ground that the petitioner had contracted second marriage with one Mst. Tahira without seeking permission from her and had forced her out of his house two years before the institution of the suit, and thereafter, never provided her any maintenance allowance.

9. In order to see as to how for the respondent-wife succeeded in establishing the said grounds, we will have to refer back to the evidence of the parties. In this regard, it is worth mentioning that in her affidavit Ex.P1, she reiterated her stance that the petitioner husband had been mal-treating her and that he had developed liaison with Mst. Tahira and had contracted nikah with her without her permission. She also maintained that the defendant never provided her with any maintenance allowance during the period of desertion. While she was under cross-examination, she was put a suggestion by the learned counsel for the petitioner husband, in reply whereof she stated as under:

She further stated during cross-examination:

She was not even suggested that the petitioner-husband had not contracted second marriage or that he had not abducted the said Mst. Tahira, his second wife, instead what was stated by the respondent-wife was confirmed by the petitioner-husband while appearing as DW-1. In this regard he stated during his examination-in-chief as under:

During cross-examination he stated that:

10. Thus it stands established that the petitioner had contracted second marriage during subsistence of his first marriage with the respondent-wife and in this regard he had not obtained any permission from her or for the Union council concerned.

11. Section-6 of the Muslim Family Laws Ordinance, 1961 prohibits contracting second marriage without previous permission in writing of the Arbitration Council concerned. For the sake of convenience, the said provision of law is reproduced as below:

Polygamy.

(1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage nor shall any such marriage contracted without such permission be registered under this Ordinance. (2) An application for permission under subsection (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee and shall state the reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto. (3) On receipt of the application under subsection (2) the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant subject to such conditions, if any, as may be deemed fit, the permission applied for. (4) In deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, (to the Collector) concerned and his decision shall be final and shall not be called in question in any Court. (5) Any man who contracts another marriage without the permission of the Arbitration Council shall: (a) Pay immediate the entire amount of 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: and (b) On conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both."

12. It is thus clear from the above provision of law that not only permission of the first wife is required for contracting second marriage, but permission of the Arbitration Council in writing is also required. As is evident from the statement of the petitioner-husband, he had not obtained any such permission either from his wife or from the Arbitration Council concerned. Thus, contracting second Marriage on the part of the petitioner alone was sufficient for the respondent-wife to justify seeking decree for dissolution of marriage. In the above circumstances, when the respondent wife had proved this ground and had also not claimed decree for dissolution of marriage on the basis of khula, there was no occasion for the learned JFC to grant decree for dissolution of marriage on the basis of khula. It has, therefore, rightly granted decree for dissolution of marriage to respondent-wife on the basis of grounds urged in the plaint. This being so, in the event of a decree for dissolution of marriage passed on any of the grounds enumerated in section 2 of the Dissolution of Muslim Marriages Act, there was no requirement of law that the wife should have been directed to return the benefits to the husband which she had received due to her marriage with him. Therefore, the claim of the petitioner that the respondent-wife was obliged to return 96 kanals of land to him in the event of dissolution of marriage is absolutely unjustified and without any basis.

13. Apart from the above aspect of the case in hand, it is also note worthy that it is the claim of the petitioner-husband that he had transferred 96 kanals of land to respondent-wife in lieu of her dower. The document 'Mark C' which is copy of Mutation No.666, dated. 29-6-2006, is available on the record. Column No.12 of the said mutation reads as under:

Meaning thereby, that the said land was given to the respondent-wife by way of gift and not in lieu of dower.

14. It is also noteworthy that it is an admitted fact between the parties that their marriage took place in the year 1997, but the said mutation was attested on 29-6-2006, even the petitioner husband does not claim that the said land was transferred in favour of respondent-wife on the day when the nikah between the parties was solemnized, therefore, it cannot be said that the said land was given to the respondent wife in lieu of her dower.

15. The instant writ petition merits dismissal yet on another ground i.e. laches. In this regard it may be observed that the impugned judgment was passed by the learned JFC on 16-9-2006. The petitioner submitted application for issuance of certified copy on 19-5-2007, which was issued on the same day and the instant writ petition was filed on 3-9-2007. Thus it suffers from laches. In this regard reliance may be placed on the case titled "Mirza Maqbool Elahi through legal heirs and 8 others v. Capital Development Authority Islamabad and 3 others" (1998 SCMR 1074). Similarly, in the case titled "Shamas Din v. Aman Ullah and 3 others" (PLD 1987 Lahore 471) this court has observed as under:

"Although no period of limitation is provided under the Constitutional provision, the fact remains that the constitutional petition had to be filed within a reasonable period of time after obtaining the certified copies of the documents. At any rate, after obtaining the certified copies of various documents in a particular case, an aggrieved person has to challenge the impugned orders not later than three months and if a constitutional petition is moved after the expiry of three months, the period thereafter has to be adequately and sufficiently explained by the petitioner. In this case I am satisfied that the petitioner was negligent in the prosecution of his matter before the Consolidation authorities."

16. No explanation has come-forth regarding delayed filing of the instant constitutional petition, therefore, the same merits dismissal on this score alone.

17. In the light of the above discussion, I have no doubt in my mind that the learned Judge Family Court has properly appreciated the evidence produced by the parties and rightly passed the decree for dissolution of marriage in favour of the respondent-wife and against the petitioner to which no exception can be taken nor there is any justification for this court to interfere with the same in its constitutional jurisdiction. This petition, therefore, fails and the same is hereby dismissed. AG/S-115/L Petition dismissed.