2008 PLP 587 (CLC)

SYED ASGHAR HAIDER, J.

The respondent No.3 filed a suit for dissolution of marriage against the petitioner, he contested the suit. The Family Court made efforts for reconciliation inter se the petitioner and respondent No.3, upon failure the Family Court proceeded to dissolve the marriage and passed the following order:-- "In view of the statement of the plaintiff and as per amended Muslim Family Laws, there is no need to proceed further. So the marriage between the parties is hereby dissolved on the basis of Khula, subject to return the dower, which has been mentioned in Column No.15 of Nikahnama within one month of this order." Aggrieved thereof the respondent No.3 filed an appeal, which was partially allowed, the dower amount declined, hence the present petition.

2. The learned counsel for the petitioner contended that appeal before the lower Appellate Court was misconceived and barred by section 14 of the Family Courts Act, 1964, further with incorporation of proviso to section 10 of the Family Courts Act, 1964, the Family Court has been ordained to dissolve the marriage forthwith and restore Haq Mehr, received by the wife in consideration of marriage at the time of marriage. There clearly was a stipulation in Column No.15 qua the Haq Mehr/dower given to the plaintiff at the time of marriage by the petitioner in the Nikahnarna, therefore, the trial Court exercised jurisdiction properly and dissolve the marriage, in accordance with law. But the lower Appellate Court exercised jurisdiction illegally, both under sections 10 and 14 of the Family Courts Act, 1964 therefore, the impugned judgment and decree is illegal and hence be set aside and that of the Family Court be restored.

3. The learned counsel for respondent No.3 vigorously contested the proposition anti submitted that the impugned judgment and decree of the trial Court was obtained illegally, no dower was paid to the plaintiff, the entries in this context in the Nikahnama are fabricated and, therefore, respondent No.3 was not obliged to return the same. The Family Court exercised improper jurisdiction, therefore, the Appellate Court under section 14 exercised jurisdiction properly and rectified the error:

4. I have heard the learned counsel for the parties and perused the Nikahnama.

5. A bare perusal of Nikahnama reflects that the dower articles have clearly been mentioned in Column No.15 of the Nikahnama, it also is stipulated that they were duly given to the plaintiff, and there is supporting entry in Column No.16 to this effect. Pursuant to the amendment, as made in section 10, by incorporating to proviso for dissolution of marriage, it is mandatory upon the Family Court that a decree for dissolution of marriage is dependent upon the restoration of Haq Mehr to the husband. In the present matter, the Family Court, therefore, exercised jurisdiction properly and dissolved the marriage strictly in accordance with law. The lower Appellate Court took an erroneous view and did not even care to examine the contents of the Nikahnama and the entries contained therein. Therefore, it committed a blatant illegality. Resultantly this petition is allowed, the impugned judgment and decree modifying the judgment and decree of the Family Court, is set aside and the judgment and decree of the Family Court restored. No order as to costs. S.A.K./A-254/L Petition allowed.