1998 PLP 942 (CLC)

Petitioner filed family Suit No.9 of 1994 against Respondent No.

1. The facts of the suit are that she was married with the respondent at Karachi on 16‑9‑1993, the dower amount was fixed for Rs.25,000 which was half prompt and half deferred and the same was not paid by the respondent. Petitioner further alleged that immediately after marriage, the respondent started causing mental and physical tortures to the petitioner and ultimately petitioner was verbally divorced thrice by the respondent on 19‑10‑1993 in presence of the witnesses depriving her of all her belongings and causing her the untold miseries for the rest of her life. Petitioner further alleged that whole of the aforesaid dower amount for the first time was demanded by the petitioner which was refused on the ground that same was not warranted by law of religion. Petitioner thereafter issued a legal notice of demand for the dower amount but with no fruitful results. Petitioner thereafter approached the Family Judge Karachi Central for the following reliefs: "(i) to pass judgment and decree in favour of the plaintiff thereby directing the defendant to pay a sum of Rs.25,000 to the plaintiff on account of her unpaid dower. (ii) to grant costs of this suit; and (iii) to grant any other/better/additional relief or reliefs, which this Hon'ble Court may deem fit and proper under the circumstances of the case. " After institution of the suit respondent was served through publication in Nawa‑e‑Waqat. The service was held good and the respondent failed to appear before the Trial Court to contest the suit. Petitioner submitted affidavit in her ex parte proof and stated that she is entitled to recover dower amount of Rs.25,

000. She also submitted Nikah Nama before the learned Trial Court as Annexure ' A' . The learned Trial Court was pleased to allow half prompt dower amounting to Rs.12,500 out of Rs.25,000 from the respondent vide Judgment, dated 7‑5‑1994 and decree, dated 7‑7‑1994. Being aggrieved and dissatisfied with the above judgment and decree petitioner filed application for review of the judgment which was dismissed by the Trial Court vide order, dated 24‑8‑1994. The petitioner being aggrieved and dissatisfied with the judgment and decree of the Trial Court and order mentioned hereinabove filed appeal under section 14 of the West Pakistan Family Courts Act, 1964, being the Family Appeal No.28 of 1994, before the learned District Judge, Karachi Central and alongwith appeal application under section 5 of the Limitation Act requesting condonation of delay in filing of the above appeal supported by affidavit filed by the petitioner. The learned IInd Additional District Judge Karachi Central was pleased to dismiss the appeal as well as application under section 5 of the Limitation Act vide judgment, dated 5‑12‑1995. Hence petitioner has approached this Court through this petition under Article 199 of the Constitution of Pakistan 1973 for the following reliefs: "(i) to declare the judgment, dated 5‑12‑1995 and so also the decree passed thereunder by Mr. Muhammad Ishaque Memon, the learned IInd Additional District Judge, Karachi‑Central, the respondent No.2 herein in Family Appeal No.28 of 1994 and so also all other judgments and orders including the judgment and decree in family Suit No.9 of 1994 resting therewith to have been passed contrary to the provisions of law in excess of the lawful authority and jurisdiction and, therefore,, of no legal effect and for that matter the petitioner herein to be lawfully entitled to the recovery of whole of her dower amount viz., Rs.25,000 under law and religion; (ii) to grant costs of this petition, and (iii) to grant any other/further/better/additional relief or reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case." Mr. Kamaluddin, learned counsel for the petitioner contended that impugned judgments, decrees and orders are intended to subvert and nullify the effect of a lawful remedy available to the petitioner. That by now it is settled law that confirmation of divorce is no more a requirement of law as such the finding of the Court below in this regard are quite contrary thereto. That in absence of any rebuttal on record to the contentions of the petition, the learned Courts below have not arrived at a rightful decision. That recovery of deferred dower is the guaranteed right of a Muslim woman under law and religion and refusal thereto by the Courts below is also contrary to the provisions of law. That the findings of the First Appellate Court that the first appeal of the petitioner is barred by time and she is not entitled to the condonation of delay is also against the settled principles of law and natural justice. That the petitioner after having been divorced is entitled to the recovery of her full dower amount and in the absence of rebuttal of the contentions of the petitioner by the respondent, the refusal thereto by the Courts below by way of the impugned judgments/decrees and orders in unjustified which requires/deserves to be set aside. Mr. Kamaluddin, learned counsel for the petitioner cited the following case‑law. (1) Haji Muhammad Isa Wasan v. Dr. Abdul Haque (PLD 1965 (W.P.) Karachi 621). (2) Abdul Karim v. Muhammad Ibrahim (1976 SCMR 79) (3) Islamic Republic of Pakistan through the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another v. Amjad Ali Mirza (PLD 1977 SC 182). (4) Sarwar Khan v. Mir Ali and 10 others (1980 CLC 110 SC (AJ&K) (5) Mrs. S.T. Naqvi v. Mst. Zubaida Begum (1981 CLC 933). (6) Muhammad Nazir v. The Secretary, Cooperative Department and another (1989 MLD 1156). (7) Al‑Haj Mian Ghulam Yasin v. Managing Director, A.K.L.A. SC Muzaffarabad and another (1987 CLC 1307 Azad J & K). (8) Ghulam Hussain and another v. Kanwar Ashiq Ali Khan and another (PLD 1980 SC 198). (9) Mirza Qamar Raza v Mst. Tahira Begum and others (PLD 1988 Karachi 169). (10) Allah Dad v. Mukhtar and another (1992 SCMR 1273) In all fairness it would be in the interest of justice to discuss the contents of the suit filed by the petitioner, the evidence adduced on her behalf and the conduct of the respondent in these proceedings. Suit for recovery of dower was filed by the petitioner and the same was verified on oath by the petitioner. Petitioner also submitted copy of Nikah Nama showing therein that dower amount of Rs.25,000 was fixed as half prompt and half deferred. The respondent according to the suit was served through publication in daily Nawa‑e Waqat, Karachi and the matter was adjourned for, filing of the written statement which also not filed, thereafter petitioner appeared before the learned Trial Court and submitted her affidavit in her ex parte proof even then respondent did not appear and petitioner was not cross‑examined so for her contentions are concerned. Family Court Judge was pleased to allow half prompt dower amount of Rs.12,500 out of Rs.25,000 from the respondent with the observation that petitioner has not filed any documentary proof regarding her divorce and that she did not file any letter of confirmation of the divorce. The case of the petitioner is that she was married with the respondent and amount of Rs.25,000 was fixed as dower and immediately after marriage on 19‑10‑1993 she was divorced by the respondent in presence of the witnesses but learned Trial Court without considering the fact that evidence adduced on behalf of the petitioner has gone unchallenged and nothing was adduced in rebuttal by the respondent against the claim of the petitioner with the observation that petitioner has not produced documentary proof. I am afraid that this observation of the learned Trial Court is not borne out from the record as mentioned hereinabove: The plaint is verified on oath which gets support of the contention of the petitioner's Nikah Nama which bears signatures of the petitioner, respondent and witnesses which shows that dower amount of Rs.25,000 was fixed half prompt, hall deferred, the Nikah Nama stand registered with Government approved Nikah Registrar which also bears his stamp and signature. The observation of the learned Trial Court that she did not file letter of confirmation of the divorce is also without significance inasmuch as the contentions of petitioner were not rebutted by the respondent through any evidence what to talk that of documentary evidence if any. Petitioner also filed review application which was dismissed by the learned Trial Court, appeal of the petitioner was also dismissed by the First Appellate Court without looking into the facts circumstances and affidavit of the petitioner particularly para. 2 of the affidavit of the petitioner which reads as follows: "That, I say that the delay, if any, in filing of the aforesaid Appeal has been occasioned firstly because I had taken‑up the Review Proceedings before the original Court under a bona fide legal advice and secondly on account of I having remained seriously indisposed during the last days. I categorically place on record of this Hon'ble Court that during the last days, I was confined to bed on account of my serious sickness, mental unrestness and physiological shocks undergone by me on account of the attitude metted out to me by the respondent in the ,above matter. " The petitioner immediately after marriage within a period of one month was divorced and according to the petitioner she was confined to bed on account of her serious sickness, mental unrestness and physiological shocks undergone by her on account of the attitude metted out to her by the respondent. This matter was fixed for regular hearing on 7‑10‑1997 but the respondent was called absent and on this date the Court passed the following order. "Notice for appearance of respondent may be published in Daily Nawa e‑Waqat Karachi. Notice through courier service and registered post A/D may also be issued for the respondent." No doubt prior to this also efforts were made for service of the respondent but of no avail even then fresh notice was issued to the respondent and the notice was also published in daily Nawa‑e‑Waqat even then respondent did not care to appear and pursue his matter. From the very institution of the suit it appears that evidence of the petitioner has gone unchallenged, unrebutted and petitioner has shown sufficient cause for condonation of delay in the affidavit submitted by her before the Appellate Court but the same was not considered by the learned Court. In this background of the matter I would like to discuss the case‑law cited by Mr. Kamaluddin, learned counsel for the petitioner. 1. (PLD 1965 (W.P.) Karachi 621). In this case learned Judge of this Court has held that appellant owing to illness and old age not in a position to pursue matter vigorously. Under the circumstances delay was condoned. 2. (1976 SCMR 79). In this case their Lordships of the Supreme Court observed that respondent filing affidavit explaining reason preventing him from filing appeal within time and such allegation not refuted by a counter affidavit and delay was condoned. 3. (PLD 1977 SC 182). Their Lordships of the Supreme Court has held that no counter‑affidavit filed to controvert ground of condonation of delay. Such fact alone, was held sufficient to justify setting aside of abatement of appeal and delay was condoned. 4. (1980 CLC 110 (S.C. AJ&K). Observations of their Lordships were that Court in circumstances of a certain case, can suo motu enlarge time and condone delay. 5. (1981 CLC 933), In this case delay of 66 days in filing appeal due to reasons beyond control of party and counsel, was allowed. 6. (1989 MLD 1156). In this case learned Judge of this Court has observed that expression "sufficient cause" is wide in meaning and import and includes grounds of justice, equity and good conscience and the delay was condoned. 7. (1987 CLC 1307) (Azad J&K). In this case their Lordships have held that where there is due care and caution and no negligence on the part of counsel, mistaken advice is condonable. 8. (PLD 1980 SC 198). Their Lordships have laid down that review petition may lie on ground of refusing.to exercise jurisdiction vested in Court by law. 9. (PLD 1988 Karachi 169). In this case it has been held that effectiveness of Talaq pronounced by husband, cannot, in any case, be made dependent on the receipt of notice by the Chairman as provided by section 7 of the Muslim Family Laws Ordinance (VIII of 1961). This very judgment of this Court was approved by their Lordships of the Supreme Court in (1992 SCMR 1273). Their Lordships observed that notice of Talaq to the Chairman is not mandatory under the Injunctions of Islam and any divorce pronounced or written by a husband cannot be ineffective or invalid in Shariah because its notice had not been given to the Chairman. In this case as referred hereinabove, the divorce in this matter is not under dispute. The petitioner has claimed the payment of Rs.25,000 being the dower amount. In support of her case she has submitted photo copy of the Nikah Nama referred hereinabove, her plaint which is verified, on oath and her affidavit in her ex parte proof. The contentions and the evidence adduced by the petitioner has gone unchallenged and unrebutted. Respondent from the very institution of the family suit remained absent and did not care to appear and controvert the contentions of the petitioner. The suit filed by the petitioner was decreed for an amount of Rs.12,500 by the Trial Court and appeal filed by the petitioner was dismissed by the Appellate Court with the observation that documentary proof has not been filed. Perusal of the Nikah Nama shows that dower amount was fixed for Rs.25,000 and petitioner has also demanded the same through legal notice which has not been rebutted or controverted by the respondent or through a tangible evidence. The observation of the learned trial Court under the circumstances is not tenable. The observations of the learned Trial Court that confirmation of the divorce has not been effected through Chairman, in view of the authority of this Court (PLD 1988 Karachi 169) and 1992 SCMR 1273) where it has been held that confirmation of notice of Talaq by Chairman, in any case, is not mandatory under the Injunctions of Islam. In my humble opinion, learned Appellate Court also erred in dismissing the appeal inasmuch as the 1st Appellate Court has not considered the contents of the affidavit filed by the petitioner with her application under section 5 of the Limitation Act for condonation of delay in filing of the appeal. In her application she has stated that first she had filed review application on the advice of the counsel and, thereafter, she had seriously fallen ill due to shock and ailment, could not approach the Appellate Court in time. Admittedly, petitioner was divorced by the respondent after marriage within a period of one month and naturally under the circumstances she must have received shock and agony at the attitude of the respondent. Since institution of the suit till the hearing of this petition though so many times notices were published in the press and also notices were issued through courier service as well as through registered post A/D but respondent did not care to appear and pursue the matter and miserably failed to adduce evidence in rebuttal. The case‑law referred by Mr. Kamaluddin counsel for the petitioner is very relevant and helpful to the case of the petitioner for the facts and circumstances mentioned hereinabove, which I respectfully follow. Upshot of the above discussion is that petition is allowed as prayed by the petitioner and relief No. 1 is granted. Order accordingly. After hearing the learned counsel on 10‑12‑1997, petition was granted by short order and above are the reasons for the same. A. A./S‑129/K Petition accepted