2013 CLC 94 (PLP)

ABDUL WAHEED KHAN, J.

The brief facts of this petition are that respondent No.2, Mst. Sana Iqbal, filed a suit for dissolution of her marriage against the petitioner on the ground of Khula. The petitioner was summoned but he did not appear and resultantly ex parte proceedings were initiated against him on 8-9-2010. The Family Court passed an ex parte decree in favour of respondent No.2/plaintiff on the basis of Khula in lieu of dower. The petitioner challenged the ex parte decree before the Appellate Court which was accepted and the case was remanded for decision afresh on merits. The petitioner filed written statement on 19-4-2011. The reconciliation efforts, at the pre-trial stage, were made on 19-12-2011. The petitioner was willing to rehabilitate her but she declined to join him for the reasons that she was feeling danger to her life at his hands and also that the petitioner/defendant had lodged a criminal report against her family members.

2. Since the efforts for reconciliation failed, therefore, vide order dated 19-12-2011 the Family Court dissolved the marriage on the basis of Khula under the proviso of subsection (4) of section 10 of the Family Courts Act, 1964. The operative part is reproduced as under:

"In view of the aforementioned circumstances, despite best efforts made by this court, the reconciliation proceedings are declared as failed. Statement of the plaintiff has already been recorded. In view of the statement recorded above and as per proviso to section 10(4) of Family Courts Act, 1964 (Amended 2002), suit of the plaintiff for dissolution of marriage on the basis of Khula stands decreed. Decree sheet be prepared accordingly. A copy of this order be set to the concerned Union Council for information. A controversy has arisen between the parties regarding payment of dower amount which cannot be resolved without recording of evidence. So, the following issue is hereby framed:

ISSUES (1) Whether the defendant has paid the entire dower amount Rs.5,00,000/- in cash to the plaintiff? (2) Relief. To come up for plaintiff's evidence for 4-1-2012. Announced Sd/- 19-12-2001 Judge, Family Court, Lahore."

3. Feeling aggrieved of the said order, the petitioner/defendant has invoked the constitutional jurisdiction of this Court.

4. Counsel for the petitioner, while reiterating the contents of the petition, submits that the return of dower amount is a condition precedent to the dissolution of marriage on the basis of Khula and that without the return of dower amount, a decree for dissolution of marriage could not have been passed and if the Judge Family Court was of the view that the controversy is required to be resolved after framing of issues and recording of the evidence, it should have required the respondent/plaintiff to deposit the amount of Rs.5,00,000/- as security.

5. Conversely, the counsel for respondent No.2 contends that it is yet to be determined, after recording evidence of the parties as if the dower amount was given to the respondent No.2 or not and in the absence of any conclusive proof of any such payment, no such prayer as made by the petitioner in the instant petition, could be granted. With these submissions, it is prayed that this petition merits dismissal.

6. Arguments of the counsel for the parties have been heard.

7. The proviso to section 10(4) of Family Courts Act, 1964 is relevant in the matter. It is reproduced hereunder:

"(3) At the pre-trial, the court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible. (4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for the recording of the evidence: 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 of marriage."

8. It can validly be inferred from the said provision of law that, if the pre-trial reconciliation efforts fail, the Family Court, (a) shall pass decree for dissolution of marriage forthwith and (b) shall also restore to the husband, the Haq Mehr "received" by the wife.

9. An order for the restoration of Haq Mehr cannot be made mechanically as a matter of routine without first determining as if Haq Mehr was in fact received or not by the bride at the time of marriage.

10. In the instant matter, it was specifically mentioned in para 1 of the plaint that the dower of an amount of Rs.5,00,000/- (five lakhs) was fixed which remained unpaid. In these circumstances, when the parties have filed divergent pleadings, they had taken contradictory stand about the payment of dower amount, the order for the forthwith restoration of 'Haq Mehr' was not justified. The Family Court has rightly settled an issue and required the parties to adduce their evidence to resolve the controversy.

11. There appears no reason to interfere with the impugned order. Resultantly, this petition fails and it is dismissed. KMZ/H-5/L Constitutional petition dismissed.