Suit for dissolution of marriage

When a preliminary decree for dissolution of marriage or khula, in terms of S.10 of the Family Courts Act, 1964, is granted then the wife shall be ordered to return the dower already received by her.

Wife claimed that after four months of marriage she was diagnosed with breast caner but strained relations between the spouses were already persisting and attitude of husband/defendant kept worsening, and he subjected her to mental, physical and psychological torture

Family Court decreed the dissolution of marriage on the basis of cruelty

Appellate Court changed the basis of separation of parties from Khulla into the cruelty and also denied grant of past maintenance allowance

Validity

Record revealed that the defendant had never inquired about health of the petitioner/plaintiff and had not paid, as a token of courtesy a single penny for her maintenance or medical treatment

Both the witnesses produced by the petitioner/plaintiff had duly substantiated her version

Such unbecoming attitude of husband was cruelty as not only physical torture but mental, moral and psychological torture on the part of partner also amounted to cruelty

High Court dissolved the marriage between parties on the basis of cruelty and modified judgment and decree passed by the Appellate Court regarding past/monthly maintenance allowance to the extent that the petitioner/ex-wife was entitled to the same from the date of institution of the suit till her Iddat period

Constitution petition of the wife was allowed, in circumstances.

Contention of the plaintiff /wife was that the decree of dissolution of marriage should have been passed on the basis of cruelty

Validity

Evidence having been adduced, in the present case, revealed that the respondent/ husband had never treated the petitioner/wife with cruelty, physically and/or mentally, however, she complained about the behavior of her in-laws while the respondent was living abroad, which had brought about negative psychological impact on her life

In spite of the respondents' love, unwillingness of the petitioner to live with him (respondent) might be seen in such background (cruel behavior of in-laws)

Wife, generally and in the absence of her husband particularly, would not simply expect but pins high hopes, and rightly so, on her in-laws to let her live with them in a conducive and congenial atmosphere within four corners of a house

Given our social norms, a wife would ordinarily do her best to live peacefully; she would most often show resilience in the face of uncouth and even cruel behavior of her husband and other in-laws for the sake of her own as well as for the honour and dignity of her parents ; she would only complain either in an extreme situation or not at all

High Court maintained the impugned judgment and decree of the dissolution of marriage passed on the basis of Khula

Constitutional petition was disposed of accordingly.

Issue of the payment of dower, which was 16 tolas of gold ornaments, was resolved by the Family Court, which determined that the dower had been paid to the wife at the time of marriage

Although the Appellate Court agreed that the dower had been paid, it concluded that the husband had subsequently taken it back

Validity

Wife had consistently claimed that the dower had been taken back and sold and her position was not challenged in cross-examination or disproved

Appellate Court's findings were correct and no order for the return of the dower was necessary since the husband had already taken it back

Constitutional petition was dismissed.

Institution of marriage is considered a divine command and the Holy Quran describes the relationship between spouses as "they are like garments, unto you as you are like garments unto them"

Such divine command can only be fulfilled when the relationship between a husband and wife is based on essential virtues such as love, care, trust, sympathy, devotion, and a sense of responsibility

Without these standards of behavior, the desire for a happy marital union between the spouses cannot be fulfilled

In situations where the relationship between a husband and wife has deteriorated to such an extent that forcing them to remain together would violate Allah's commands, the dissolution of marriage on the grounds of Khula can be ordered.

Petitioner assailed order passed by Family ?Court whereby the marriage between the ?petitioner and respondent was dissolved on the ?basis of Khula in view of their statements ?recorded on the same day

Contention of ?petitioner was that according to Shia personal ?law, the marriage could not be dissolved unless ?the "Seeghajaat" were read in presence of the ?parties wither by the husband or his representative/nominee/wakeel in presence of ?respondent or her representative/nominee/wakeel

Validity

Shia male could always ?pronounce divorce in accordance with Shia Law ?which would be protected only by reading the "Seeghajaat" directly or through a representative/wakeel in the presence of female or her ?representative/wakeel whereafter divorce could ?become effective

Such exercise could be ?undertaken in the present case even with ?retrospective effect, if need be

Writ petition was ?disposed of accordingly.

Woman can release herself from the tie of marriage by giving up some property in return in consideration of which the husband has to give her khula

Khula is repudiation with the consent and at the instance of the wife in which she agrees to give consideration to the husband for her release from the marital tie

However, the Court cannot on its own deprive a lady of her dower and cannot order her to relinquish the same because the dower is the right of the woman given by Shariah.

Failure to maintain the wife even if for less than the statutory period which entitles a wife to a decree for dissolution of marriage under S. 2(ii) of the Dissolution of Muslim Marriages Act, 1939, would at the very least show that the wife has approached the Court for dissolution of marriage on account of fault of the husband, in which case, the wife is entitled to recovery of outstanding dower.

It is obligatory on Courts granting khula to take into consideration dower regardless of whether it is prompt or deferred.

Where the wife had stated in her plaint that she had faced agony at the hands of the husband and that it was not possible for her to live with him while abiding by the limits of Allah; the parties had been living separately for years; the pre-trial reconciliation proceedings had not succeeded in the Family Judge's own opinion, High Court observed that such factors were sufficient grounds for the grant of a decree for dissolution of marriage by way of khula in order to avoid a hateful union even if the grounds alleged by the wife for dissolution of marriage were not proved through evidence in the opinion of the Family Court as no woman could be forced to live with a man without her consent or liking.

Husband can refuse to give 'Talaq' but at the same time it would create an environment causing the wife to seek khula, which would entitle him to the benefit of retaining deferred dower and/or getting back prompt dower property/amount

Thus, where the Court through legal, cogent and convincing evidence comes to the conclusion that the husband has compelled the wife to ask for dissolution of marriage on the ground of khula then the Court shall have the power to refuse the return of the prompt dowered property/amount to husband or to release him from the liability of payment of deferred dower.

Khula is a right given to a woman as the right to divorce is vested in a man with the difference that khula can be obtained only through a decree of Court and on payment of such consideration as may be fixed by Court.

If a wife seeks khula without pointing any fault of the husband and the Court finds it proper to grant khula then the wife should be ordered to return all the benefits received by her and also forego such rights under which she can claim any benefit.

Petitioner/husband assailed the order passed by courts below whereby respondent/wife was allowed to retain half of the dower and return the remaining half as consideration for 'khula'

Validity

Wife had admitted during the course of cross-examination that she herself had left her husband's house and that she had turned down the efforts of the husband and the mother for reconciliation

Reliance of Family Court on the 'reciprocal benefits' was an excessive exercise of jurisdiction bordering on largesse uncalled for in the circumstances of the case

Constitutional petition was allowed and the wife was directed to return the entire dower to the husband.

Respondent filed three suits; first, for dissolution of marriage; the second, for recovery of dower; and the third, for recovery of maintenance allowance

Appellant also filed a counter suit for restitution of conjugal rights

Suits filed by respondent were allowed whereas that of appellant was dismissed

Validity

Statements of the parties clearly showed that the stance of appellant that the respondent had wilfully left the house of her husband had no substance

Cruelty was not confined to physical torture

Even the cruel attitude was not confined only to the extent of physical violence, it included mental torture, hateful attitude of husband or other inmates of the house and also included other circumstances, in presence of which, the wife was forced to abandon the house of her husband

Appellant could not succeed in pointing out any misreading or non-reading of evidence

Appeal was dismissed.

Clause (2) of S.11, Family Courts Act, 1993, was mandatory in nature and clearly placed embargo upon the Family Court not to summon any witness after framing of issues

If a party wanted to summon a witness through the process of Court, the same had to intimate within 3 days of framing the issues and if the Court was satisfied that it was not possible for such party to produce the witness then such witness might be summoned by the Court.

Appeal against the marriage dissolved by Family Court on any ground, except the one mentioned in S.2(viii)(d) of Dissolution of Muslim Marriages Act, 1939, was not competent in view of S.14 of Family Courts Act, 1964

Statements of witnesses of defendant proved that there was maltreatment both physically and mentally from the defendant's side that was why he gave surety that next time there would be no beatings

Defendant had failed to maintain the plaintiff for more than four years, who was residing with her parents

"Cruelty" was not limited to physical beating rather it could be either mental or even by conduct

Petition was partly accepted and the impugned order of appellate court to the extent of return of appeal in respect of dower amount, maintenance, gold ornaments and medical expenses was set aside.

Petitioner impugned the orders of the Appellate Court and Family Court whereby her case was remanded and the suit was subsequently dismissed

Petitioner also challenged the order passed by Magistrate whereby he had taken cognizance against her

Validity

Respondent had arraigned the petitioner in various litigations, including two criminal cases on charge of zina; alleged illegal visa as well as fraudulent CNIC

Such conduct and pending litigation(s) were, prima facie, sufficient to make it clear that respondent's claim to the effect that petitioner was his legally wedded wife was only being used to keep her in court(s) or get her punished else he would have, first, attempted for restitution of his rights which he, prima facie, never did

Petitioner had contracted second marriage while believing that khula was sufficient to exercise her right to re-marry

Bona fide was attached with her act of second marriage

Remand order as well as dismissal of her suit could not be allowed to undo the re-marriage after khula because re-marriage was nothing but a seal on door of her first marriage and petitioner was happy with the decision of khula

Law favoured rights over procedure

Judgments of Appellate Court and Family Court were set aside and the earlier order passed by Family Court whereby suit was decreed was maintained

Order of Magistrate taking cognizance of second marriage of petitioner was set aside as the same was without declaration of family jurisdiction

Petitions were disposed of accordingly.

Marriage is a legal contract through which both parties agree to live a harmonious life by honouring their respective obligations and duties towards each other

Islam, also, nowhere forces the spouses to live a life devoid of harmony and happiness rather allows the parties to part, if they can't live together, as they should

Such act is not liked yet is permitted because it is never fair to compel/force two persons to live together as same, surely, would be against guaranteed fundamental rights of such persons

Man (husband) has a unilateral right to give talak but the woman (wife) has also been provided a right to seek separation by way of khula

This, prima facie, is a way out for woman (wife) to come out of such bond of marriage and for such claim, she even is not supposed to give detail(s) for such move but her disliking is sufficient for exercise of such right

In such event, she would only be required to return/restore the benefit(s), if any, she received from husband.

Petitioner impugned order passed by Family Court whereby the suit filed by respondent for dissolution of marriage by way of khula was decreed

Contention of petitioner was that the Family Court had dissolved his marriage without providing him an opportunity of hearing as on the very date of pre-trial stage/hearing, he could not put his appearance before the Court due to pandemic situation and lockdown restrictions

Validity

Petitioner had deliberately and intentionally failed to appear and defend his case before the Family Court just to prolong the proceedings, however, the case was adjourned at his request and on the very date again he had failed to put his appearance, compelling the Family Court to pass the impugned order

Submissions of petitioner could not be considered on the ground that the matter of dissolution of marriage between the spouses had attained finality and the same could not be reopened under S. 14(2) of the Family Courts Act, 1964, except in the case of dissolution for reasons specified in cl. (a) of the item (viii) of S.2 of the Dissolution of Muslim Marriages Act, 1939 or under Art.199 of the Constitution in the manner as the petitioner had asked

Constitutional petition was dismissed.

Petitioner, impugned the orders of the Appellate Court and Family Court whereby her case was remanded, and the suit was subsequently dismissed

Petitioner also challenged the order passed by Magistrate whereby he had taken cognizance against her

Validity

Respondent had arraigned the petitioner in various litigations, including two criminal cases on charge of zina; alleged illegal visa as well as fraudulent CNIC

Such conduct and pending litigation(s) were, prima facie, sufficient to make it clear that respondent's claim to the effect that petitioner was his legally wedded wife was only being used to keep her in court(s) or get her punished else he would have, first, attempted for restitution of his rights which he, prima facie, never did

Petitioner had contracted second marriage while believing that khula was sufficient to exercise her right to re-marry

Bona fide was attached with her act of second marriage

Remand order as well as dismissal of her suit could not be allowed to undo the re-marriage after khula because re-marriage was nothing but a seal on door of her first marriage and petitioner was happy with the decision of khula

Law favoured rights over procedure

Judgments of Appellate Court and Family Court were set aside and the earlier order passed by Family Court whereby suit was decreed was maintained

Order of Magistrate taking cognizance of second marriage of petitioner was set aside as the same was without declaration of family jurisdiction

Petitions were disposed of accordingly.

Marriage is a legal contract through which both parties agree to live a harmonious life by honouring their respective obligations and duties towards each other

Islam, also nowhere forces the spouses to live a life devoid of harmony and happiness rather allows the parties to part, if they can't live together, as they should

Such act is not liked yet is permitted because it is never fair to compel/force two persons to live together as same, surely, would be against guaranteed fundamental rights of such persons

Man (husband) has a unilateral right to give talak but the woman (wife) has also been provided a right to seek separation by way of khula

This, prima facie, is a way out for woman (wife) to come out of such bond of marriage and for such claim, she even is not supposed to give detail(s) for such move but her disliking is sufficient for exercise of such right

In such event, she would only be required to return/restore the benefit(s), if any, she received from husband.

Respondent filed a suit for dissolution of marriage on the ground of cruelty, recovery of dower amount, custody of minors and return of educational certificates

Family Court partly decreed the suit

Petitioner filed appeal before the District and Sessions Judge, who dismissed the same being barred by time

Validity

Statement of respondent/wife and her witnesses showed that there was maltreatment both physically and mentally from the side of petitioner, that was why the petitioner had to give surety that next time there would be no beatings

Petitioner, on the other hand, had failed to give substantiating evidence to prove that the respondent willingly left him and refused to rejoin him

Petitioner had also failed to maintain the respondent for several years during her stay with her parents

Cruelty was not limited to physical bearing rather it could either be mental or even by conduct

Respondent had taken shelter in her parent's house for several years and in such a situation the respondent had sustained acute mental anguish and suffering by the reckless and careless attitude of the petitioner, which compelled her to approach the trial court for dissolution of marriage

Constitutional petition was dismissed accordingly.

Respondent/wife filed suit for dissolution of marriage on the ground of cruelty, recovery of dower amount, custody of minors and return of educational certificates

Family Court partly decreed the suit

Petitioner filed appeal before the Member, Majlis-e-Shoora, who returned the appeal by holding that the court had no jurisdiction to entertain the appeal

Petitioner filed appeal before the District and Sessions Judge, who dismissed the same being barred by time

Validity

Section 14 of the Family Courts Act, 1964, provided that a decision given or decree passed by a Family Court shall be appealable to High Court, where the Family Court was presided over by a District Judge and to the District Court in any other case

To define the words "District Judge", an Explanation was given in R. 3 of the Family Courts Rules, 1965, wherein it was laid down that "for the purpose of this rule and R. 7, the expression 'District Judge' shall be deemed to include the President of Majlis-e-Shoora, Kalat"

Section 24 of the Dastoor-ul-Amal Diwani State Kalat, 1952, envisaged that there shall be a Majlis-e-Shoora comprising of two or more members to decide appeals arising out of the judgments and decrees of the Qazis working under the hierarchy of Dastoor, thus, for all intents and purposes, reference to word 'Majlis-e-Shoora' meant a Court constituted with two members and a President, whereas the reference to words 'President of Majlis-e-Shoora' was limited only to President of Majlis-e-Shoora

Provincial Government while defining the territorial limits of the various courts of Majlis-e-Shoora had simultaneously declared the respective District and Sessions Judges as President of different Courts of Majlis-e-Shoora

Intention of legislature was clear that in family matters either decided by a Civil Judge or Qazi, the appeal would solely lie before the District Judge

Constitutional petition was dismissed accordingly.

Petitioner assailed order passed by Trial Court whereby an application of the respondent seeking amendment in her suit in the title, body and likewise in the prayer clause by seeking dissolution of marriage on the basis of khula instead of dissolution on the basis of cruelty was allowed

Validity

Family Court, by allowing the amendment, had not exceeded its jurisdiction and the order was passed in the best interest of both the parties to avoid another round of litigation between themselves

Trial Court had not committed any illegality or irregularity warranting interference by the High Court in its constitutional jurisdiction

Constitutional petition was dismissed, in circumstances.

Family Court is competent to regulate its own proceedings for expeditious disposal of matrimonial disputes as the Family Courts Act, 1964, does not make provisions for every conceivable eventuality or unforeseen circumstances.

Trial Court had afforded several opportunities to the defendant to appear for pre-trial reconciliation proceedings to reconcile the controversy but he failed to do so, therefore, the right of the petitioner was struck off

Validity

No specific provision existed in the Family Courts Act, 1964, for striking off the defence of the defendant, however, mentioning of a word "if any" in subsection (2) of S.10 of the Family Courts Act, 1964, clearly showed the intention of legislature that the Family Court was neither helpless nor supposed to act as a silent spectator towards the inaction of the defendant in filing of written statement or not appearing for pre-trial reconciliation and if need arose it could proceed to strike off the defence of the defendant

Trial Court had not committed any illegality or irregularity warranting interference by the High Court in exercise of its constitutional jurisdiction

Constitutional petition was dismissed, in circumstances.

Whenever an application is filed by plaintiff for dissolution of marriage upon failure of pre-trial reconciliation, the marriage is to be dissolved forthwith through a speaking and reasonable order

Dissolution cannot be withheld or refused merely upon pendency of other contesting issues between the parties qua recovery of payment of dower, maintenance or other ancillary matters, which could at best be adjudged after recording pro and contra evidence of the parties

Albiet, if the marriage tie is kept intact on account of other ancillary issues; then, it would be denial of the right so conferred upon the wife by the law, as the very purpose and object of S.10 of Family Courts Act, 1964, is to salvage the wife from hateful union and she should not be compelled in any circumstances to stay in the marriage contract against her will and consent; which would amount to keep the tie of marriage forcefully intact

Decree so passed shall be treated as a preliminary decree, which shall be merged into final decree after recording of pro and contra evidence of the parties.

Petitioner assailed judgments and decrees passed by courts below whereby respondent's suit for dissolution of marriage was decreed

Validity

Claim of petitioner was that the respondent was in touch with strangers on her mobile phone

Such type of allegations against one's wife and that too without proof led to creation of a sense of cruelty and in the alternative turned the husband unbearable for his wife

No irregularity or illegality was found to have been committed by the courts below

Constitutional petition was dismissed.

Earlier suit for recovery of maintenance allowance filed by wife was decreed, however, prayer of the husband for restitution of conjugal rights had also been accepted vide the same judgment

Wife later filed a suit for dissolution of marriage which was decreed in her favour

Husband contended that when there was decree for restitution of conjugal rights existed in his favour, then subsequent suit of the wife for dissolution of marriage was not maintainable in terms of S.11 of the Civil Procedure Code, 1908

Held, that although S.17 of the Family Courts Act, 1964 provided that S. 11 of Civil Procedure Code, 1908 would apply to the family suits, but the Courts had not heard/decided the issue of dissolution of marriage in the earlier suit

Grant of a decree for restitution of conjugal rights could not preclude a wife from seeking dissolution of marriage thereafter

Family Court had rightly held that it was a recurring cause of action and so long as the wedlock subsisted, a suit could be brought for dissolution of marriage, unless such a relief was declined to a wife by a competent Court of law, after hearing a duly instituted suit on merit and when the situation remained unchanged

Principle of res judicata was not applicable in circumstances

Constitutional petition was dismissed.

Wife/petitioner filed suit on the grounds of cruel behavior and failure to pay maintenance, however, Family Court on failure of reconciliation between the parties dissolved the marriage on the basis of Khula in lieu of dower; which decree was maintained by the appellate Court

Held, that the wife, for decree of dissolution of her marriage, had to forego her claim of dower only in the event of failure of reconciliation between the parties

Family Court on its own could not deprive the lady from the dower and could not order to relinquish the dower as the dower was the right of the lady given by Shariah

Said right could not be discretionarily or arbitrarily exercised by the Court

Family Court in a suit for dissolution of marriage, if reconciliation failed, shall pass decree for dissolution of marriage forthwith and shall restore to the husband the Haq Mehr received by the wife at the time of marriage

Such option could only be exercised if the lady had opted to relinquish the benefit but the Court could not exercise its jurisdiction

Although the Court was empowered to pass a decree on the basis of Khula, but subject to the fact that all the conditions required were fulfilled

In the present case, neither the lady agitated the ground of Khula nor it was her request while making statement before the Court and certain other grounds existed on the basis of which decree for dissolution of marriage could have been passed

High Court set aside impugned judgments and decrees passed by both the Courts below and dissolved the marriage between the parties on the basis of grounds asserted by the petitioner

Constitutional petition was allowed, in circumstances.

Held, that the Court framed the issues regarding the allegations asserted by the lady and those were not proved by her ; at such stage the Court could pass decree for dissolution of marriage on the basis of some condition, but it would not be dissolution of marriage on basis of Khula

Wisdom behind this was that the parties should not be forced to live in a hateful union.

Held, that decree of Khula could be passed even when there existed no ground but lady was not willing to settle down with the husband, however, the condition had to be fulfilled ; and the lady might be asked to return the benefits, but not the full dower rather the half one

Certainly in such situation the lady would have to forego rights which she had gained from the husband.

Court had to put the offer of the lady to the husband and on the reply of husband in positive, the decree of Khula could be passed; secondly, if the conditions were put by the lady, for which the husband was not ready or he put some more conditions, then the same would be put to the lady

Unless the spouses were ready on the conditions, the decree could not be passed on the basis of Khula

Now the Court would frame the issues, regarding the other grounds agitated by the lady for dissolution of marriage and would decide the same on the basis of available record.

Plaintiff filed suit for dissolution of marriage on the basis of cruelty, physical torture, desertion and that the defendant (husband) levelled allegation against her that she was physically and sexually unfit

Defendant, through his counsel, filed application that the plaintiff be directed to get herself medically examined and if she was declared sexually and physically fit with regard to her reproductive system, the suit filed by her be decreed

Trial Court, after recording the statements of the parties, referred the matter to the Medical Board, who declared the plaintiff as a healthy and fit woman in all respects

Trial Court decreed the suit

Contention of defendant was that he was abroad and was unaware of the proceedings

Validity

Defendant had given authority to his counsel by way of signing the vakalatnama to prosecute the case on his behalf

Act of counsel was always considered as act of the party

Analysis of the evidence proved that the defendant had lambasted and castigated the plaintiff and had made her life miserable and depressed

Allegation itself had caused great torture to the plaintiff

Appeal of defendant to such extent was dismissed.

Petitioner assailed judgment and decree passed by Family Court whereby her marriage was dissolved on the basis of khula instead of cruelty by husband/respondent

Validity

Petitioner had not sought decree for dissolution of marriage on the basis of khula instead she had claimed dissolution on the ground that the respondent had contracted second marriage without seeking her permission, forced her out of his house and thereafter did not provide maintenance

Petitioner had proved that behaviour of respondent remained cruel towards her throughout

Family Court had erred in passing the decree for dissolution of marriage on the basis of khula, in circumstances

Constitutional petition was allowed accordingly.

Wife would lose her dower only if she seeks dissolution of marriage on the sole ground of khula and not when she urges other grounds in support of her case, unless the other grounds are not proved

Entitlement to receive dower or its retention would remain unaffected and intact, if wife proved other grounds like cruelty of the husband.

Woman married under Muslim Law is entitled to obtain a decree for the dissolution of her marriage on anyone or more of the grounds available under the law

Each ground is separate and enough for dissolution

Where marriage is dissolved on other grounds the result would have been the same irrespective of the fact that the plea of khula was raised or not

Legal rights cannot be curtailed by implication.

Plaintiff and her witnesses had not been cross-examined on the issue of cruelty and said fact had been admitted on behalf of defendant-husband

No possibility of reunion between the husband and wife existed within the limits prescribed by Allah

Evidence produced on oath was sufficient to display aversion of hate against husband which was primary consideration for dissolution of marriage on the basis of cruelty

Husband had made the life of wife miserable by giving her emotional and psychological trauma by way of verbal and physical abuse which were key factors and covered under S.2(iii)(a) of Dissolution of Muslim Marriages Act, 1939

Minimum threshold of evidence with regard to cruelty had been brought on record by the plaintiff

Plaintiff-wife had corroborated physical abuse through documentary evidence

Section 5(2) of Family Courts Act, 1964 provided prosecution for both husband and wife if either of the party was abusing the other spouse and committed the offences

Family Court despite availability of evidence on record did not attend the offences mentioned in S.5(2) read with Part-II of the Sched. of Family Courts Act, 1964

Family Court having exclusive jurisdiction in the matter was to prosecute those spouses who had inflicted injuries on other spouse by way of emotional, psychological as well as physical harm

Family Court had rightly dissolved the marriage of the parties on the basis of cruelty

Constitutional petition was dismissed in circumstances.

Respondent had sought a decree for dissolution of marriage on the basis of non-payment of maintenance allowance and cruelty and in alternate she had sought the decree on the basis of khula

Respondent had leveled serious allegations against the appellant and had also stated that she had developed stern disgust against him, hence, she was not ready to live with the husband at any cost

Trial Court, by dissolving the marriage on the basis of khula had committed no illegality or irregularity warranting interference by the High Court

Appeal was dismissed.

Wife sought decree for dissolution of marriage on the grounds of non-payment of maintenance allowance; non-performing of marital obligations and cruelty

Marriage was dissolved by the Family Court on the ground of non-payment of maintenance

Validity

Relations between the spouses had become hostile and husband had snatched daughter from the wife and contracted second marriage which forced wife to abandon his house

Husband had not made any effort or arrangement to take her wife back to his house nor he had provided her maintenance allowance thus mentally torturing her

Wife had succeeded to prove the allegation of cruelty, in circumstances

Cruelty by conduct and behaviour of a spouse justified the grant of divorce

Decree for dissolution of marriage due to non-payment of maintenance allowance was converted by the High Court into a decree for dissolution of marriage on the basis of cruelty

Impugned judgment and decree passed by the Family Court were modified accordingly

Appeal was allowed, in circumstances.

Court might take into consideration reciprocal benefits received by the husband and continuous living together might also be a benefit received

Court could adjust the financial matters so as to direct partial or total restoration of the benefits received by the wife

Plaintiff, in the present case belonged to a poor family and she remained as wife with the defendant and received benefits

Plaintiff-wife was directed to return the cash of rupees one lac and five tola gold ornaments to the husband in lieu of dissolution of her marriage on the ground of 'khula' and she was allowed to retain the house keeping in view the principle of reciprocal benefits

Constitutional petition was disposed of, accordingly.

Petitioner (husband) assailed order of Family Court whereby it had dismissed his application for setting aside ex-parte judgment and decree for dissolution of marriage

Validity

Petitioner had filed application for setting aside the judgment and decree of khula' after delay of more than 30 days

Conduct of petitioner towards suit of respondent showed that he deliberately avoided to appear inspite of service of notice through different modes including publication

Petitioner again delayed the application for setting aside ex-parte judgment and decree within stipulated period of 30 days

Petitioner was required to explain delay of each day but he failed to do so by not filing application for condonation of delay under S. 5 of Limitation Act, 1908

Section 14(2)(a), Family Courts Act, 1964 prohibited filing of appeal in case of dissolution of marriage on any ground except the one in clause (a) of item (viii) of S. 2 of Dissolution of Muslim Marriages Act, 1939

Object of legislature behind not providing provision as to appeal in case of dissolution of marriage is to protect women from prolonged and costly litigation

Constitutional petition, being not maintainable, was dismissed in limine.

Wife claimed dissolution of marriage on the grounds of cruelty, non-payment of maintenance allowance and non-performance of marital obligations

Validity

Under the Dissolution of Muslim Marriages Act, 1939 if the husband neglected or failed to provide maintenance for a period of two years or he failed to perform, without reasonable cause, his marital obligations for a period of three years then wife was entitled for decree of dissolution of marriage

Period of non-payment of maintenance and non-performance of marital obligations had not completed in the present case, therefore, wife was not entitled for dissolution of marriage on said grounds

Wife had failed to prove the allegation of cruelty through cogent and convincing evidence as her witnesses did not support her claim nor she produced medical evidence regarding violence

Statements of husband's witnesses revealed that he had made his best efforts to settle his wife but she was not ready to live with him

Wife had even got recorded her statement wherein she categorically deposed that she did not want to live with her husband

Trial court had rightly appreciated the evidence of the parties and had rightly passed the decree for dissolution of marriage on the ground of 'khula' in consideration of dower

Appeals were dismissed.

Evidence received through modern evices was admissible under Art. 164 of Qanun-e-Shahadat, 1984, however Qanun-e-Shahadat was not strictly applicable to Family Court but Family Court was not barred from receiving such evidence under any provision of law

Petitioner for invoking constitutional jurisdiction of High Court was bound to show that court below had exercised jurisdiction not vested in it by law or there was jurisdictional defect in the order impugned or order was illegal or perverse

No jurisdictional defect had been pointed out in the impugned order passed by the Family Court

Constitutional petition as dismissed in circumstances.

Plaintiff / wife sought grant of dissolution of marriage inter alia on the ground that husband had refused to continue marriage since the last nine years, and the parties were not living together for the last nine years therefore, under S.32 of the Parsi Marriage and Divorce Act, 1936, marriage could be dissolved

Held, that husband/defendant; before the High Court, inter alia, stated that he had no objection to the grant of the petition for dissolution of marriage since the parties had not been living together since the last nine years

Since the suit was not contested and the husband had given his no objection to dissolution of marriage and delegates as required were present in the court and the proceedings had taken place in-camera as required under S.42 of the Parsi Marriage and Divorce Act, 1936; therefore no impediment existed in grant of dissolution of marriage

Suit for dissolution for marriage was allowed, and marriage between the parties was dissolved, in circumstances.

Discretion exercised by the Family Court dismissing the application for setting aside ex-parte proceedings was not in accordance with law and same could be looked into by exercising constitutional power

Discretionary orders were not immune from judicial review

Writ petition against such interim order was competent in circumstances

Ex-parte order passed by the Family Court was set aside

Defendant was directed to file written statement before the Family Court within fifteen days

Family Court was directed to decide the case on merits after hearing the parties within the stipulated period first deciding the territorial jurisdiction

Writ petition was allowed in circumstances.

Suit for dissolution of marriage was decreed by the Family Court with a direction to wife for returning dower amount as mentioned in the "Nikah Nama"

Contention of the petitioner husband was that wife had received the dower amount in shape of gold ornaments, therefore she was bound to return the dower or cash as per prevalent rate of gold and that the order of Family Court was not sustainable

Validity

Copy of Nikahnama reflected that "Mehr" was fixed in shape of money (Thirty Six Thousand Rupees), the same had been paid in terms of gold ornaments of same value

Dower had neither been fixed in the form of gold ornaments nor the weight/description of gold ornaments was mentioned in Nikhanama, in the absence of which no valid order could be passed for return of gold ornaments

Order of Family Court was strictly in consonance with the provisions of law

Constitutional petition was dismissed.

Plaintiff/wife sought grant of dissolution of marriage inter alia on the ground that wife felt there was no compatibility between the parties and that she and the husband were not living together since more than three years, which fact in itself was sufficient for grant of dissolution of marriage under S.32 of the Parsi Marriage and Divorce Act, 1936

Husband/ defendant; before the High Court, inter alia, stated that he had no objection to the grant of the petition for dissolution of marriage

Held, that in the present case, requirements of the Parsi Marriage and Divorce Act, 1936 appeared to have been complied with and the delegates present in Court were also of the opinion that parties should not be compelled to remain in an union of marriage against their will

Proceedings were held in-camera (chambers) as required under S.43 of the Parsi Marriage and Divorce Act, 1936 in presence of the parties, counsel and delegates

Suit for dissolution for marriage was allowed, and marriage between the parties was dissolved, in circumstances.

Contention of husband was that wife was residing in United Kingdom and Family Court in Pakistan had no jurisdiction to entertain the suit

Application for rejection of plaint was dismissed by the Family Court

Validity

Court in whose jurisdiction cause of action wholly or in part arose or parties were residing or last resided together would have the jurisdiction to entertain the suit

Cause of action had not arisen in Pakistan in the present case

Both the parties were residing in United Kingdom at the time of marriage and they last resided together there

Rule 6 (b) of West Pakistan Family Courts Rules was not applicable to the facts of present case

Wife was not ordinarily residing in Pakistan but both the parties were residing in United Kingdom and their Nikah ceremony and Rukhsati were also performed there

Differences between the parties arose in United Kingdom and matter was adjudicated upon by the Fiqah Council Birmingham of United Kingdom

Wife had filed suit for dissolution of marriage before Family Court in Pakistan in violation of R.6 of West Pakistan Family Courts Rules, 1965

Said Rule did not grant right to wife to institute suit for dissolution of marriage in Pakistan

Temporary visit of wife to Pakistan would not give jurisdiction to Family Court in Pakistan to entertain the suit

Family Court in Pakistan having no jurisdiction to entertain the present suit, impugned order was without lawful authority

Constitutional petition was accepted in circumstances.