Dissolutoin of marriage

Citation Name : 2008 YLR 2267 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. KANEEZ FATIMA
Side Opponent : JUDGE FAMILY COURT, RAWALPINDI




Ss. 5, Sched. & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Consolidated suit for dowery articles, maintenance and dower amount etc.---Maintainability---Plaintiff who had been divorced by the defendant had filed a consolidated suit for dowery articles, maintenance and dower amount against defendant/ex-husband---Suit was resisted by defendant contending that collective claims regarding maintenance, dower and dowery articles could only be filed in a suit for dissolution of marriage and not otherwise---Contention of defendant was repelled by Family Court---Validity---Family Court had rightly observed that while inserting S.17 in West Pakistan Family Courts Act, 1964 by the Legislature, wife had been facilitated to consolidate her claim as provided by law in one suit---Plaintiff having already been divorced by the defendant, had no other option, but to file a collective suit regarding her claim---Even otherwise if the independent suits were filed, Family Court would have no option, but to consolidate the same---Family Court had been given powers to regulate its own proceedings, in the interest of justice, if the situation so required---Constitutional petition filed against an interim order passed by the Family Court, was not maintainable and was dismissed.





















Citation Name : 2008 YLR 968 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NASREEN BIBI
Side Opponent : State




S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2)116---Pre-arrest bail, . grant of--Complainant was the real brother of accused who seriously apprehended danger to her life at the hands of the complainant and her husband---Accused had filed a suit for dissolution of marriage against her husband---First occurrence of having seen the accused committing zina with her paramour had not been reported to the police by the complainant, which, even otherwise, did not seem to have taken place---Offence in respect of second occurrence fell within the purview of S.16. of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which was not punishable with imprisonment exceeding ten years---Accused had joined investigation and she was not required by the police---Interim pre-arrest bail already granted to accused was confirmed in circumstances.





















Citation Name : 2008 YLR 133 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD KAUSAR
Side Opponent : RABIA KAUSAR




S.5, Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage ---Ex parte decree---Application for setting aside ex parte decree---Maintainability---Suit for dissolution of marriage filed by wife having been decreed ex parte by Family Court, husband filed application for recalling and setting aside the same---Judge Family Court without seeking reply from wife dismissed application through impugned order on the ground that there was no provision for review in special law---Said order of the Family Court had been challenged in the constitutional petition---Application filed for setting aside ex parte judgment and decree was clear in its terms and words---Application had sought setting aside and recalling of ex parte judgment and decree, but Family Court appeared not to have even read said application---Family Court selectively used the odd words "Nazar Sani" and rejected husband's application for setting aside ex parte judgment and decree in limine without even considering the assertions and pleadings contained therein---Superficial treatment of the matter by the Trial Court, had classically brought ' out the misapplication of law, non-consideration of the case and consequent non performance of the duty as a Judge who was minimally obligated to read, consider and then decide the matter---Requirements of law and justice had been overlooked---Justice, in circumstances had patently been traversed---Family Court had not only mis-exercised its jurisdiction, but had also failed to do its basic duty---Impugned order being patently without lawful authority, was declared to be of no legal effect---Petitioner's application would be deemed to be pending and would be decided strictly in accordance with law.





















Citation Name : 2008 YLR 133 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD KAUSAR
Side Opponent : RABIA KAUSAR




S.5, Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage ---Ex parte decree---Application for setting aside ex parte decree---Maintainability---Suit for dissolution of marriage filed by wife having been decreed ex parte by Family Court, husband filed application for recalling and setting aside the same---Judge Family Court without seeking reply from wife dismissed application through impugned order on the ground that there was no provision for review in special law---Said order of the Family Court had been challenged in the constitutional petition---Application filed for setting aside ex parte judgment and decree was clear in its terms and words---Application had sought setting aside and recalling of ex parte judgment and decree, but Family Court appeared not to have even read said application---Family Court selectively used the odd words "Nazar Sani" and rejected husband's application for setting aside ex parte judgment and decree in limine without even considering the assertions and pleadings contained therein---Superficial treatment of the matter by the Trial Court, had classically brought ' out the misapplication of law, non-consideration of the case and consequent non performance of the duty as a Judge who was minimally obligated to read, consider and then decide the matter---Requirements of law and justice had been overlooked---Justice, in circumstances had patently been traversed---Family Court had not only mis-exercised its jurisdiction, but had also failed to do its basic duty---Impugned order being patently without lawful authority, was declared to be of no legal effect---Petitioner's application would be deemed to be pending and would be decided strictly in accordance with law.





















Citation Name : 2008 CLC 1526 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Rana MUHAMMAD AKRAM JAVAID
Side Opponent : ADDITIONAL DISTRICT JUDGE, FAISALABAD




Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage , recovery of maintenance allowance and return of dowry articles---Family Court on the basis of statement of wife, decreed suit for dissolution of marriage ---Recovery of dowry articles worth Rs.5,015,500 as claimed by wife was decreed for Rs.300,000---Wife was also held to be entitled to collect maintenance allowance from the date of filing the suit until the completion of Iddat period Rs.800 p.m.---Appellate Court, however held the wife to be entitled to recovery of the dowry articles in addition to eight Tola gold ornaments from the husband and only to that extent judgment and decree passed by the Family Court was modified by the Appellate Court---No illegality, perversity, ambiguity, irregularity or jurisdictional defect was found in the impugned judgments and decrees of the courts below so as to warrant interference by High Court in exercise of its constitutional jurisdiction.

Citation Name : 2008 CLC 1337 LAHORE-HIGH-COURT-LAHORE
Side Appellant : TABASSUM KHURSHID
Side Opponent : SARDAR ABID IQBAL




S. 5 & Sched---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage and for recovery of dower amount---Family Court decreed the suit for dissolution of marriage , but dismissed claim of plaintiff to the extent of her dower amount---Plaintiff no where had claimed the dissolution of marriage on the basis of `Khula', but she had mentioned different instances of cruelty and bad behaviour of defendant/husband---From the statement recorded before the Trial Court, it could not be presumed that plaintiff had claimed dissolution of marriage on the basis of `Khula'---Right of `Khula' could only be exercised if the same was stated in clear words, whereas in the present case nowhere such sentence was used nor the word of `Khula' was mentioned---Plaintiff could not be deprived of her valuable right of dower amount on that score---Decree for dissolution of marriage passed by the Trial Court in favour of plaintiff was maintained and condition as placed by the Family Court to forego the claim of dower amount was declared to be without lawful authority and of no legal effect.





















Citation Name : 2008 CLC 850 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Rana ZAHID SAEED
Side Opponent : JUDGE, FAMILY COURT, SAHIWAL




S. 5 & Sched.---West Pakistan Family Courts Rules, 1965, R.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage ---Territorial jurisdiction of the court---Return of plaint---Defendant in his written statement objected to the jurisdiction of the court and moved application for return of plaint on the ground that plaintiff being resident of "L", Family Court at "S" had no territorial jurisdiction to entertain the suit---Validity---West Pakistan Family Courts Act, 1964 and Rules framed thereunder were special laws--.-Rule 6 of West Pakistan Family Courts Rules, 1965 provided that the court normally would have jurisdiction where the cause of action wholly or in part had arisen or where the parties resided or last resided together, however, an exception was available to that rule---Proviso to R.6 of West Pakistan Family Courts Rules, 1965, provided that in suits for dissolution of marriage or dower, the jurisdiction would also vest with a court where the wife ordinarily resided---Intention of the Legislature was to facilitate things for the wife and off-set her handicap of travelling etc.---Option of filing such suits vested with the wife and the court was bound to take her convenience into account; it would thus, be in fairness of things to permit the wife to choose the court of her convenience subject to the limitation imposed by law---No illegality in the impugned order, having been found constitutional petition having no merits was dismissed.





















Citation Name : 2008 CLC 607 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAQIB MAZHAR
Side Opponent : JUDGE, FAMILY COURT, WAZIRABAD




Ss. 5 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Interlocutory order---Suit by. wife for dissolution of marriage and recovery of gold ornaments---Husband filed application assailing territorial jurisdiction, which was dismissed by Family Court---Validity---Where under S.14(3) of West Pakistan Family Courts Act, 1964, Legislature had specifically prohibited filing of appeal against interim order and if Constitutional petition was allowed to be filed against such order, it would tantamount to defeating and diverting the intent of Legislature---Petitioner had adequate remedy available to him by challenging order in appeal which he could file against ultimate order/judgment if passed against him---High Court declined to entertain the petition being hit by Art.199(1) of the Constitution---Petition was dismissed in circumstances.





















Citation Name : 2008 CLC 587 LAHORE-HIGH-COURT-LAHORE
Side Appellant : A.BDUL HAQ SHAHID
Side Opponent : DISTRICT JUDGE, TOBA TEK SINGH




S. 5, Sched. & S.10, Proviso---Suit for dissolution of marriage ---Entries in Nikahnama showing dower given to wife---Conciliation efforts, failure of---Effect---Mandatory upon Family Court in such case to dissolve marriage upon restoration of dower to husband---Principles.





















Citation Name : 2008 MLD 914 KARACHI-HIGH-COURT-SINDH
Side Appellant : KAMRAN AHMED ANSARI
Side Opponent : Syeda MUNAZZA SHAHEEN




S. 5, Sched. & S.10(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---dissolution of marriage on ground of khula--Family Court having dissolved the marriage of petitioner husband with respondent wife by way of khula in lieu of dower amount, petitioner had filed constitutional petition against judgment of the Family Court---Order passed by the Family Court had shown that petitioner did not appear in the Family Court and his counsel moved application for adjournment, which was dismissed---Since it was admitted that dower amount was not paid by the petitioner to respondent, she insisted for khula and marriage was dissolved under proviso to subsection (4) of S.10 of West Pakistan Family Courts Act, 1964---Respondent lady after dissolution of marriage having contracted marriage with someone else, petition had become infructuous---Family Court having rightly exercised its jurisdiction as provided in West Pakistan Family Courts Act, 1964, no illegality was found in impugned order passed by the Family Court---Constitutional petition was dismissed.





















Citation Name : 2007 CLC 972 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : Mst. YASMIN AKHTAR
Side Opponent : ABDUL MATEEN ZAHID




---S.5 & Sched.---Azad Jammu and Kashmir Shariat Courts Ordinance, 1982, Ss.6 & 11---Civil Procedure Code (V of 1908), O.XX, R.5---Suit for dissolution of marriage , recovery of dower and dowry and restitution of conjugal rights---Appeal to Shariat Court---Wife filed suits for dissolution of marriage , recovery of dower and dowry against the husband, whereas husband had filed suit for restitution of conjugal rights against the wife---Trial Court consolidated all the suits and after recording evidence of parties, dismissed suits filed by wife with regard to dissolution of marriage , recovery of dowry etc., but decreed suit for restitution of conjugal rights filed by husband---Wife, in proof of her claim had produced six witnesses and she also appeared herself as witness, but Trial Court had only discussed two witnesses and totally blacked out remaining four---Husband also produced six witnesses and he himself appeared as his witness, but Trial Court also relied upon two witnesses and remaining four had not been discussed---Trial Court, in circumstances had failed to apply its judicial mind and had tried to get rid of the case---While deciding controversial points in issue between parties, evidence produced must be taken into consideration---Evidence adduced must correctly be appreciated and thereafter the Court should have formed its opinion with regard to point in issue---Trial Court had not only failed to `appreciate' evidence but evidence had totally been ignored---Judgment must be self speaking, narrating points in issue and correct appreciation of evidence, but Trial Court had not only ignored said principle, but also failed to appreciate whole evidence produced by the parties---Trial Court, in circumstances having committed a grave illegality by non-reading and misreading of evidence, same could not be treated to be a judgment in the eye of law---Impugned judgment of the Trial Court was set aside with direction that the Trial Court would decide case afresh accordingly.





















Citation Name : 2007 CLC 686 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : Mst. NAZISH KAZMI
Side Opponent : Syed SHUJAAT HUSSAIN KAZMI




---Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage and recovery of dower--Trial Court after recording evidence of both parties, decreed suits of plaintiff-wife for dissolution of marriage on basis of Khula and for recovery of dower to the tune of half of the dower--Cross suit by husband for restitution of conjugal rights was dismissed---Judgment and decree of the Trial Court had been impugned by husband mainly on two points; firstly that Trial Court failed to frame issues after submission of his written statement and, in circumstances had violated mandatory provisions of law; secondly that Trial Court had failed to appreciate the fact that, if the divorce took place on the initiation of wife without consummation, she was bound to pay whole amount of Khula, instead of the half one---Validity---Held, regarding first point relating to failure of framing issues, under provisions of S.10(4) of Azad Jammu and Kashmir Family Courts Act, 1993, framing of issues no doubt had been made obligatory after filing written statement, but at the same time, since no consequence had been provided for not framing issues, requirement of framing issues was not obligatory---Requirement in context of the provisions, seemed to be directory in nature and not mandatory---Parties were alive to the case, they produced their evidence upon their respective claims and no one objected with regard to the time and stage of framing the issues---Trial Court, in circumstances had rightly passed impugned judgment and there appeared no illegality or irregularity, whatsoever---Regarding point of full amount of dower in consideration of Khula, Nikah Nama had shown that dower amounting to Rs.1,50,000 was fixed as prompt dower and rest was fixed as deferred---Prompt dower was paid in the shape of half part of house while rest being deferred was kept pending---Evidence produced on record had shown that relations of spouses were 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 Allah---Trial Court, in circumstances had rightly decreed suit filed by plaintiff on basis of Khula---Marriage which was not consummated, wife was entitled to half of the dower---Decree of Khula granted to wife for recovery of dower to the tune of half of dower, was perfectly in accordance with Islamic Law---Trial Court having not committed any misreading or non-reading of evidence, judgment and decree passed by it could not be interfered with.





















Citation Name : 2007 SCMR 1935 SUPREME-COURT
Side Appellant : NASIR ALI alias KHIZAR HAYAT
Side Opponent : Mst. TAJ BEGUM




----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.185(3)---Suit for dissolution of marriage was decreed by the ,Family Court on basis of Khula with direction to respondent to refrain from claiming all dowry articles, ornaments and maintenance allowance---Appeal filed by petitioner against judgment and decree passed by the Family Court was partly accepted by Appellate Court directing respondent lady to return ten acres of land to the petitioner which had been given to her by late father of petitioner and decree for dissolution of marriage was maintained---Constitutional petition filed by respondent against judgment of Appellate Court below was allowed by the high Court, observing that petitioner and other legal heirs of deceased were at liberty to establish their claim regarding transfer of 10 acres of land allegedly given by late father of petitioner to respondent, through appropriate proceedings---Evidence on record did not make it clear as to whether alienation of said 10 acres of land by late father of petitioner was as a consideration of marriage of the petitioner with the respondent or otherwise---High Court, in circumstances was justified in adopting a safe course to leave the dispute regarding transfer of 10 acres of land for determination by a Court of competent jurisdiction---Impugned judgment of the High Court did pot suffer from any legal infirmity so as to warrant interference by the Supreme Court.





















Citation Name : CLC 1831 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : PERVAIZ AKHTAR MALIK
Side Opponent : Mst. QAISER NARGIS




----Ss. 5, Sched. & 14---West Pakistan Family Courts Rules, 1965, R.6---Guardians and Wards Act (VIII of 1890), S.9---Constitution of Pakistan (1973), Art.199---Suit for dissolution of marriage , maintenance, dower and application for appointment of guardian of minor---Territorial jurisdiction---Determination of---Territorial jurisdiction of the Court in suits for dissolution of marriage , maintenance, or dower, was to be determined by the cause of action where wholly or in part it arose or where the parties ordinarily resided or the court within. the local limits of which the wife ordinarily resided as provided by R.6 of West Pakistan Family Courts Rules, 1965---Jurisdiction- of the court for appointment of guardian of minor was to be assessed by S.9 of the Guardians and Wards Act, 1890, which had provided that: the court within the jurisdiction of which minor ordinarily resided, would have jurisdiction to proceed with the matter---In resolving the question as to which court had jurisdiction to entertain the application afresh for determining the,: residence of minor, the balance of convenience and interest of the minor, would also be kept in view---Children in the present case were residing and being educated at Karachi with the petitioner for more than 3 years---District Judge in Karachi, in circumstances had jurisdiction to entertain the application and the suit.





















Citation Name : 2007 MLD 570 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : BAKHT ZADA
Side Opponent : Mst. JOOMREZA




---S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope-.Suits for dissolution of marriage , recovery of dower, maintenance, custody of minor and restitution of conjugal rights---Respondent (wife) had filed suit against petitioner for dissolution of marriage , recovery of dower, maintenance and custody of minor, whereas petitioner (husband) had filed suit for restitution of conjugal rights against the respondent---Both suits were consolidated---Suit. filed by respondent was partially decreed qua dissolution of marriage , recovery of dower and maintenance allowance and her prayer for custody of minor daughter was declined and suit filed by petitioner for restitution of conjugal rights was dismissed by Family Court---Judgment and decree passed by the Family Court was upheld in appeal---Validity---Constitutional jurisdiction of High Court was completely discretionary in nature which could be declined in appropriate cases---High Court while exercising constitutional jurisdiction, had to see, if the Tribunal or Court acted without jurisdiction or in violation of any relevant statute or law---High Court in such cases could not embark upon a reappraisal of evidence as it was the job of Appellate Court to appraise evidence, which had been done in the case in accordance with law---No irregularity or jurisdictional defect had been pointed out by the petitioner inviting interference of High Court---Tribunal having jurisdic­tion to decide a matter, was competent to decide it rightly or wrongly---Mere fact that decision was incorrect, did not render decision of said Tribunal as without lawful authority---Material on record had proved that dower amount fixed at the time of marriage had not been paid to wife and husband who had contracted second marriage without prior permission of respondent, had not provided any maintenance to her---Judgments and decrees of Courts below were supported by evidence on file--Constitutional petition was dismissed, in circumstances.