2010 PLP 295 (YLR)

S. ALI HASSAN RIZVI, J.

In this writ petition filed by Syed Sikandar Ali Shah through his real mother Mst. Salma Bokhari, following prayer has been made:-- "It is, therefore, respectfully prayed that the order passed by respondent No.4 as well as the subsequent proceedings before the respondent No.5 may please be declared to be without lawful authority and of no legal effect and pending the decision of the writ petition, the operation of the impugned order may please be suspended."

2. In the prayer clause reproduced above, it has not been shown as to which order of learned Family Court (Ms. Abhar Gul) was sought to be set aside. I find that she had passed an order on 15-9-2008, decreeing the suit for dissolution of marriage on the basis of Khula in consideration of dower. The relevant order is Annexure-G to the writ petition. The other order passed by the same learned Family Judge was of 6-9-2008, which was challenged in appeal. Mr. Zafar Ullah Tarar, the learned Addl. District Judge while accepting the appeal set aside the order dated 6-9-2008 and remanded the case to the learned trial Court vide judgment dated 14-10-2008 passing certain directions. It is, therefore, evident that the order dated 6-9-2008 is not in the field. The only order of the learned Judge Family Court which could conceivably be challenged, was of 15-9-2008 (Annex-G). This impression is further strengthened from the second part of the prayer that the subsequent proceeding pending before the Chairman, Arbitration Council (respondent No.5) be declared to be without lawful authority.

3. I, therefore, find that it was the order dated 15-9-2008, passed by the learned Judge Family Court which was sought to be challenged in this writ petition.

4. The grounds taken in support of the writ petition was that the petitioner Sikandar Ali was insane and confined to District Jail, Faisalabad; that he should have been summoned at pre-trial stage to record his statement before passing a decree for dissolution of marriage on 15-9-2008; the learned counsel for the petitioner was not granted an opportunity to cross-examine respondent No.1 Mst. Omaha Anwar; that the impugned judgment and decree was hit by the law laid down in 2007 CLC 505 and 2008 SCMR 240; that the medical report pertaining to the petitioner showing him as an insane person suffering from Schizophrenia was not appreciated; that the petitioner was condemned unheard and that the impugned orders passed by respondent No.4 and subsequent proceedings pending with respondent No.5 were illegal, unwarranted and without lawful authority. Referring to section 10(4) of the Family Courts Act, 1964 and the law laid down in PLD 1973 Lah. 95, it was argued that the passage of the order dated 15-9-2008 amounted to reviewing the order dated 7-6-2008.

5. I have considered the arguments of learned counsel for the petitioner and have gone through the entire record appended with the writ petition.

6. It is stated in ground (vi) of the writ petition itself that by order dated 7-6-2008, only the plaint to the extent of dowry articles was returned whereas by order dated 15-9-2008, suit for dissolution of marriage was decreed on the basis of Khula in consideration of dower. Section 10(4) was amended and a proviso was added to the effect 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 a decree for dissolution of marriage forthwith and shall also "restore to the husband the Haq Mehar received by the wife in consideration of marriage at the time of marriage." The key words are "if reconciliation fails." In the present case, it is the case of the writ petitioner himself that he was insane and was confined in jail. He was suffering from Schizophrenia. If the petitioner was indeed insane and suffered from Schizophrenia, it passes my comprehension as to what would have been the use of calling him from the jail. He was not a "person" competent according to the contents of the writ petition themselves. The present writ petition has been filed through his mother. The rulings, namely, 2007 CLC 505 and 2008 SCMR 840 were entirely in different situations. In none of those cases, the male partner was an insane person. The order dated 15-9-2008 passed by the learned Judge Family Court (respondent No.4) was with jurisdiction and at least to the extent of dissolution of marriage, territorial limits were irrelevant. I am conscious that there is no limitation to file a writ petition albeit question of laches would be relevant. The impugned order is dated 15-9-2008 whereas the present writ petition was filed on 19-2-2009. The petitioner had challenged the order dated 6-9-2008 before the learned Appellate Court as aforementioned and he was successful vide judgment dated 14-10-2008 passed by Mr. Zafar Ullah Tarar, learned Addl. District Judge, Lahore. The order dated 15-9-2008 to all intents and purposes was quite lawful and with jurisdiction. Consequently, subsequent proceedings before the Chairman, Arbitration Council (respondent No.5) would also be quite within the mandate of his authority. It was not denied that the factual position stated in para. 7 of the order dated 6-9-2008 passed by the learned Judge, Family Court was correct. It was noted that respondent No.1 had to shift to Lahore as of compulsion because the present petitioner had committed murder of a neighbourer and that her life was seriously at stake. In any case, question of jurisdiction was irrelevant for purpose of dissolving marriage and the relevant decree for dissolution was sound both on law and facts. The writ petition appears to have been filed in a circuitous manner, to take a chance and to make a cobweb of litigation against respondents Nos.1 to 3.

7. For all the above reasons, the petitioner has no justiciable cause to be examined in the extraordinary writ jurisdiction of this Court. Consequently, it is dismissed in limine. SAK/S-100/L Petition dismissed.