2003 PLP 2708 (YLR)

Sardar Abid Khan Jatoi for Petitioner. Respondent No.2 had filed a suit against petitioner for dissolution of marriage. The petitioner filed a contesting written statement. Reconciliation failed, during the proceedings whereof it was asserted by respondent No.2 that her dower was 'Shari' whereas according to the petitioner it was fixed as Rs.25,000 and was paid at the time of marriage. ,

2. Marriage was dissolved by the Family Court on the ground of Khula'. Divergent version of the parties regarding amount of dower was not believed and it was tentatively deemed as Rs.1,000 by the Family Court keeping in view the social status of the parties and the aforesaid amount was determined as Zar-e-Khula' for the release of the petitioner from the marriage tie. Suit was accordingly decreed on the basis of Khula vide judgment dated 26-2-2003.

3. The aforesaid judgment of the Family Court is called in question in this Constitutional petition by the petitioner on the grounds that:-- (i) Family Court was not vested with the power to fix the dower amount and had erred in not relying on the affidavits produced by the petitioner, according to which a sum of Rs.25,000 was fixed as the dower of respondent No.2; and (ii) The controversy regarding the amount of dower could only have been resolved after recording evidence, said exercise was not undertaken by the trial Court, hence impugned judgment/decree which were passed at the reconciliation stage are against law and without jurisdiction.

4. Petitioner's counsel has been heard. Writ petition and its annexures perused.

5. Petitioner had produced before the trial Court two affidavits photocopies whereof are Annexures ' D1 ' and ' D2' . Both the said documents do not contain certificate of the Oath Commissioner certifying that their contents were deposed before him on Oath or solemn affirmation and the executants of the said documents were either known to him or were identified' before him by a person who was known to him. Without the said certificate of the Oath Commissioner the said document could not be deemed as affidavits. Hence they had no evidentiary value and were rightly ignored by the Family Court.

6. Copy of the Nikahnama was withheld. It is stated in the, impugned judgment that in spite of opportunity provided to the petitioner (husband), he did not produce Nikahnama in support of his allegation that a sum of Rs.25,000 was fixed as dower. Version of respondent No.2 before the Family Court was with her dower was "Shari".

7. In the circumstances stated above, no illegality was committed by the learned trial Court in tentatively determining the amount of dower for the purpose of Zar-e-Khula' keeping in view the social status of the parties. The petitioner was admittedly a labourer.

8. From the arguments of the learned counsel for the petitioner it appears that now the controversy is only to the extent of Zar-e- Khula which according to the petitioner was not correctly determined by the Family Court.

9. Although a decree for dissolution of marriage on the ground of Khula' is not appealable but decision as to fixing of the amount of consideration payable to the husband for wife's release from marriage bond is appealable under section 14 of the Family Courts Act, 1964.

10. Constitutional jurisdiction can be invoked where no other adequate remedy is provided by law. The impugned decision being appealable yet not appealed against had attained finality and would be deemed to have been accepted by the petitioner. In the said circumstances Constitutional petition is not maintainable. It is accordingly dismissed in limine. M.B.A./M-2042/L Petition dismissed.