2007 PLP 686 (CLC)

SARDAR M. ASHRAF KHAN, J.

The above titled four appeals have been directed against the one and same judgment and decree therefore, these are being disposed of through this single judgment.

2. The brief facts forming the background of the instant appeals are that Mst. Nazish Kazmi, appellant herein filed two suits one for dissolution of marriage and other for recovery of dower to the tune of Rupees 10 lac in the Court of Family Judge, Muzaffarabad on 21-2-2005 and 25-2-2005 respectively. On the other hand Syed Shujaat Hussain Kazmi, respondent/appellant filed a suit for restitution of conjugal rights in the Court of Family Judge, Muzaffarabad on 5-3-2005. The respondent/appellant Shujaat Kazmi, in response to the notice of the Court appeared before the Court and submitted his written statements wherein he refuted all the allegation levelled against him by Nazish Kazmi the plaintiff appellant. The trial Court consolidated all the three suits vide its order, dated 19-5-2005. The parties drafted the issues which were filed accordingly. However, the Court did not summarize the draft and failed to frame the same in accordance with the relevant provision of law. The trial Court directed Mst. Nazish Kazmi, the plaintiff appellant to produce evidence in support of her claim. She produced Syed Ajmal Hussain Shah, Shaukat Ali Kazmi, Waris Imam Kazmi, Syed Taj Hussain, Shabbir Ahmed Chughtai, Hazoor Imam Kazmi, Mujtaba Ali Kazmi, as her witnesses and she also appeared as witness. On the other hand the defended appellant Shujaat Kazmi, produced Syed Muhammad Yousaf Shah, Syed Muhammad Mehmood Kazmi, Syed Jabar Hussain Gillani, Syed Ghulam Hussain Shah and Syed Ali Shah, as his witnesses and he also appeared as witness.

3. After recording the evidence of both the side, the trial Court decreed the suits of Mst. Nazish Kazmi, for recovery of dower to the tune of half of the dower and also decreed the suit for dissolution of marriage on the basis of Khula and cross-suit filed by Shujaat Kazmi for restitution of conjugal rights was disallowed vide its judgment and decree dated 8-4-2006. Hence these appeals.

4. Mushtaq Ahmed Janjua, the learned counsel for the Mst. Nazish Kazmi argued that the trial Court committed grave illegality while partly decreeing the suit of the appellant. The learned counsel further contended that the trial Court failed to appreciate the evidence in its true perspective. The learned counsel submitted that the appellant has proved her claim through cogent and convincing evidence but the trial Court failed to consider the evidence regarding plea of fraud and dissolved the marriage on the basis of Khula which is against the norms of justice. The learned counsel finally prayed that the decree for one-half of dower may be passed in favour of appellant, Nazish Kazmi.

5. Conversely, Kh. Aslam Habib, the learned counsel for the appellant/respondent, Syed Shujaat Kazmi argued that the impugned judgment and decree of the trial Court is violative of law as well as against the record therefore, the same is not sustainable. The learned counsel further contented that the trial Court failed to decide the two applications submitted on 28-3-2006 prior to the final adjudication of the case, as such the trial Court has violated the law, he referred PLD 1974 BJ 4 in support of his arguments. The learned counsel further contended that the whole dower money was paid to the respondent/appellant Nazish Kazmi, but the trial Court did not consider this important aspect of the case and passed the decree for part payment of dower. The learned counsel submitted that the trial Court failed to appreciate the fact that if the divorce took place on the initiation of respondent (Nazish Kazmi) without consummation, the respondent is bound to pay the whole amount of Khula instead of the half one. The learned counsel further contended that without Rukhsati no wife could claim any sort of Haq-e-Mehr without performing marital obligations, the demand of Mehr would be illegal and unjust therefore, the suit for recovery of dower is liable to be dismissed.

6. I have heard the learned counsel for the parties and perused the record with utmost care.

7. It appears from the arguments advanced by the learned counsel for the appellant/respondent Syed Shujaat Kazmi, that there are only four main points which need to be resolved. (1) That the trial Court failed to decide the two applications submitted on 28-3-2006 prior to the final adjudication for the case. As such the same should be treated to be pending. (2) That the trial Court failed to frame the issues after submission of the written statement and thus, has violated the mandatory provision of Family Courts Rules. (3) That in spite of whole dower money was paid to the respondent Nazish Kazmi, the trial Court did not consider the same and instead passed the decree for the part of it. (4) That the trial Court also failed to appreciate the fact that if the divorce took place on the initiation of respondent without consummation, the respondent is bound to pay the whole amount of Khula instead of the half one.

8. As regards the 1st objection with regard to the applications is concerned. It appears from the record that these applications were presented on 28-3-2006 contending therein that on persuasion and mediation of the elders of the spouses, the respondent compromised and agreed to live with appellant on the payment of whole dower money. It is alleged that in spite of the payment, the respondent refused to abide by the compromise therefore, an amendment to this effect in written statement of the appellant (defendant) was sought on 28-3-2006, the date which was already fixed for final arguments. The trial Court adjourned the cases for 4-4-2006 and fixed the cases for hearing the arguments on the applications as well as the whole case. On 4-4-2006 the arguments were heard and the trial Court disposed of these applications along with the main judgment on 28-4-2006 with the observation that "These applications are baseless, frivolous and are intended to prolong the case, thus, not maintainable".

9. It appears from the perusal of these applications that the object of amendment is not bona fide and the same have not been filed at the proper time. Neither evidence with regard to the payment of dower nor any other proof to justify the claim has been produced. The stage and time of filing these applications is also indicative of the intentions of the appellant to prolong the case. The appellant could not, when the case was ripe for decision, be permitted to take up the point of amendment, which he was at liberty to move right after the compromise at proper time. Thus, the appellant by his conduct did not prove the genuineness of amendment application. Therefore, the trial Court has rightly disposed of by rejecting the same at the time of final judgment. Therefore, it cannot be said that the same are pending for decision. The citation referred by the learned counsel 2005 CLD 875 has no relevancy with regard to the rejection of the miscellaneous applications. The referred case deals with an application which was overlooked, rather that was totally ignored and the Court decided the case without taking into consideration the pending application. But in the present case, the miscellaneous applications have not, only been thoroughly examined, but have also been adjudicated by a detailed judgment. Thus, the case-law referred to above has no bearing on the subject.

10. The next point to be resolved is, whether the trial Court violated the mandatory provision of law, by not framing the issues, in the light of section 10(4) of Family Courts Rules. It will be appropriate to reproduce the relevant section of Family Court Act which is as under:-- "Section 10(4). If no compromise or reconciliation is possible, the Court shall frame the issues in the case and fix a date for evidence."

11. No doubt, from the bare reading of the section, it appears that the framing of the issues have been made obligatory, after filing the written statement, but at the same time, since no consequence has been provided for not framing the issues; therefore, the requirement is not obligatory. The requirement in context of the provision seems to be directory in nature and not mandatory. In support of this point of view eference my be given in a case reported in PLD 1974 BJ 4 which lays down as under:-- "Section 10(4) of West Pakistan Family Courts Act, 1964

Issues, failure to frame

The parties while adducing evidence not requesting the Court to frame regular issues

Parties fully alive to the points involved and leading evidence accordingly

Omission of Family Court to frame issues in circumstances not fatal to case and proceedings not vitiated."

12. A perusal of the record shows that in the present case as the parties were the same and they have placed their draft issues, before the evidence. It appears that the trial Court inadvertently did not consolidate and frame the issues at the relevant time and started to record the statement of the witnesses. Neither appellant nor the respondent realized or felt advised to raise objection to this effect throughout the proceedings. It was the trial Court, which realized and framed the issues, before the judgment. Therefore, it cannot be said that issues have never been framed or any gross violation of section 10(4) of Family Courts Act has been committed. The parties were alive, they produced their evidence upon their respective claims and no one objected with regard to the time and stage of framing the issues, therefore, the trial Court has rightly passed the impugned judgment and there appears no illegality or irregularity whatsoever.

13. As regards the next point regarding the payment of full amount of dower in consideration for Khula, is concerned. It appears form the perusal of the Nikahnama Exh.P.A., that dower amounting to Rs.1,50,000 was fixed as prompt dower and rest was fixed as deferred out of ten lac of the total dower money. The prompt dower was paid in the shape of half part of the house in Gojra while the rest being deferred was kept pending. This document is a registered one and also admitted by the appellant in his written statement. More over the perusal of an agreement Exh.P.B. which is signed and verified by the appellant in presence of respondent, along with two marginal witnesses substantiate the claim of Nazish Kazmi. It has been alleged by the appellant that this agreement has been prepared and acquired by fraud, thus, cannot be relied upon. But no proof has been produced to substantiate the allegation. Thus, the allegation appears to be worthless, which is repelled.

14. The next point raised by the learned counsel for the appellant is that the decree passed on the basis of Khula is against the law, as no evidence in connection with the strained relations of the spouses was produced, thus, the principles for granting the decree on the basis of Khula were completely ignored. It appears from the evidence adduced by the parties that the relation of the spouses were so severely strained and had gone to the stage, that they were not only unable to pass a happy life as being husband and wife, but also live together within the limits ordained by the Allah Almighty. It would have been therefore, be futile to grant relief as prayed in the suit of appellant. Thus, the trial Court has rightly dismissed the suit of the appellant and decreed the suit filed by the respondent on the basis of Khula.

15. As regard the payment of dower and amount in lieu of Khula, is concerned. The perusal of the finding of the trial Court reveals that it has been passed perfectly in accordance with law and no misreading or non-reading of evidence has been committed. According to Islamic Law, it is well-settled principle that the marriage which is not consummated, the wife is entitled to half of the dower. Therefore, the decree of Khula granted to the wife is perfectly in accordance with Islamic Law. To substantiate this point reference may be made to:

16. The learned counsel for the appellant has referred a case-law and contended that if the divorce takes place on the initiation of the wife prior to the consummation, she shall not be entitled for dower. The counsel placed his reliance on the following Hadith:-

17. It transpires from the plain reading of the above Hadith that the wife is only barred to claim the dower, provided that she becomes non-believer. The case in hand is quite different and there is no question of respondent being non-believer, therefore, the argument and reference in this regard is not relevant, which is repelled.

18. For the reason listed above, I find no force in these appeals therefore, the same are hereby dismissed. The office is directed to annex the copies of this judgment with the other connected files. H.B.T./2/Sh.C.(AJ&K) Appeals dismissed.