PLJ 2010 Peshawar 97 (DB)
[Abbottabad Bench]
Present: Mian Fasih-ul-Mulk and Miftah-ud-Din Khan, JJ.
MUHAMMAD EHSAN--Petitioner
versus
TAYYABA YOUNUS and 2 others--Respondents
W.P. No. 297 of 2009, decided on 19.11.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Judgment and decree for dissolution of marriage on the basis of khulla was not appealable--Competency of appeal--Suit for recovery of dowery article, dissolution of marriage and maintenance allowance for the period of iddat--Challenge to--Relief of dower amount could not be considered in isolation but the same had nexus with dissolution of marriage based on khulla and, therefore, findings of trial Court for not granting dower could not be reversed without disturbing the ground of khulla which essentially would tantamount to an appeal against dissolution--Held: No appeal lies against dissolution whether it is on the ground of cruelty or khulla--Appellate Court exercises appellate jurisdiction and has wrongly presumed himself as qazi which is not only against Islamic jurisprudence but also Family Laws prevalent and governing family disputes--Grant of dower by Appellate Court is without jurisdiction--Maintenance allowance had been proved on record and findings of appellate as well as trial Court are maintained--Petition was partially allowed. [P. 99] A
Qazi Ghulam Rauf, Advocate for Petitioner.
Miss Uzma Munawar, Advocate for Respondents.
Date of hearing: 19.11.2009.
Judgment
Mian Fasih-ul-Mulk, J.--Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Muhammad Ehsan has questioned the impugned judgment and decree of learned Additional District Judge-V, Abbottabad dated 27.11.2008, whereby he passed a decree for recovery of dower amount of Rs. 1,50,000/- and maintenance allowance of Rs.2000/- per month from June, 2007 to September, 2007 in favour of Respondent No. 1.
2. Briefly stated the facts of the case are that the marriage between spouses, petitioner and Respondent No. 1, took place on 21.09.2006 in consideration of Rs. 1,50,000/- as dower, dowry articles to the tune of Rs.2,50,000/-. and Rs.2000/- as maintenance allowance in case of desertion; that the relations between the parties became strained and petitioner was allegedly forced to leave the house. The respondent requested the petitioner to rehabilitate her but all in vain. The learned Civil Judge-X/Judge Family Court, Abbottabad vide judgment and decree dated 20.06.2008 granted decree for dissolution of marriage on the basis of khulla, dowry articles as per list annexed with the plaint or in alternate their market value i.e. Rs.2,50,000/- and maintenance allowance for the period of Iddat. Feeling aggrieved the respondent filed an appeal which was allowed and decree for recovery of dower amount to the tune of Rs. 1,50,000/- and maintenance allowance @ Rs.2000/- per month was passed in favour of Respondent No. 1. Hence, this writ petition by the husband/petitioner.
3. Learned counsel for the petitioner mainly contended that in case of dissolution of marriage on the basis of khulla the wife was not entitled to the recovery of dower amount. Further, impugned order of dissolution of marriage on the basis of khulla was not appealable. Therefore, the impugned judgment and decree is not sustainable to this extent.
4. As against that, the learned counsel for the respondent supported the impugned judgment and decree.
5. We have heard the learned counsel for the parties at length and perused the available record.
6. A perusal of record would show that the judgment and decree for dissolution of marriage on the basis of khulla was not, appealable. The learned appellate Court conveniently ignored this important aspect though the ground of competency of appeal was agitated by petitioner in his arguments as mentioned in the impugned judgment but the same was dealt with in a slipshod manner. The learned appellate Court failed to appreciate that in the instant case the relief of dower amount could not be considered in isolation but the same had nexus with the dissolution of marriage based on khulla and, therefore, the findings of trial Court for not granting dower could not be reversed without disturbing the ground of khulla which essentially would tantamount to an appeal against dissolution. No appeal lies against dissolution whether it is on the ground of cruelty or khulla. The learned appellate Court exercises appellate jurisdiction and has wrongly presumed himself as Qazi which is not only against Islamic jurisprudence but also Family Laws prevalent and governing family disputes. Para 4 of the impugned judgment is also disapproved with the result that the grant of dower by the appellate Court is without jurisdiction. As far as maintenance allowance is concerned that has been proved on record and findings of appellate as well as trial Court are maintained.
7. Consequently, we partially allow the petition to the extent that the judgment and decree granted to Respondent No. 1 for the recovery of dower amount of Rs. 1,50,000/- is set-aside while remaining decree of maintenance granted by trial as well as appellate Court is upheld and left intact. No order as to costs.
(R.A.) Petition partially allowed.
[Abbottabad Bench]
Present: Mian Fasih-ul-Mulk and Miftah-ud-Din Khan, JJ.
MUHAMMAD EHSAN--Petitioner
versus
TAYYABA YOUNUS and 2 others--Respondents
W.P. No. 297 of 2009, decided on 19.11.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Judgment and decree for dissolution of marriage on the basis of khulla was not appealable--Competency of appeal--Suit for recovery of dowery article, dissolution of marriage and maintenance allowance for the period of iddat--Challenge to--Relief of dower amount could not be considered in isolation but the same had nexus with dissolution of marriage based on khulla and, therefore, findings of trial Court for not granting dower could not be reversed without disturbing the ground of khulla which essentially would tantamount to an appeal against dissolution--Held: No appeal lies against dissolution whether it is on the ground of cruelty or khulla--Appellate Court exercises appellate jurisdiction and has wrongly presumed himself as qazi which is not only against Islamic jurisprudence but also Family Laws prevalent and governing family disputes--Grant of dower by Appellate Court is without jurisdiction--Maintenance allowance had been proved on record and findings of appellate as well as trial Court are maintained--Petition was partially allowed. [P. 99] A
Qazi Ghulam Rauf, Advocate for Petitioner.
Miss Uzma Munawar, Advocate for Respondents.
Date of hearing: 19.11.2009.
Judgment
Mian Fasih-ul-Mulk, J.--Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Muhammad Ehsan has questioned the impugned judgment and decree of learned Additional District Judge-V, Abbottabad dated 27.11.2008, whereby he passed a decree for recovery of dower amount of Rs. 1,50,000/- and maintenance allowance of Rs.2000/- per month from June, 2007 to September, 2007 in favour of Respondent No. 1.
2. Briefly stated the facts of the case are that the marriage between spouses, petitioner and Respondent No. 1, took place on 21.09.2006 in consideration of Rs. 1,50,000/- as dower, dowry articles to the tune of Rs.2,50,000/-. and Rs.2000/- as maintenance allowance in case of desertion; that the relations between the parties became strained and petitioner was allegedly forced to leave the house. The respondent requested the petitioner to rehabilitate her but all in vain. The learned Civil Judge-X/Judge Family Court, Abbottabad vide judgment and decree dated 20.06.2008 granted decree for dissolution of marriage on the basis of khulla, dowry articles as per list annexed with the plaint or in alternate their market value i.e. Rs.2,50,000/- and maintenance allowance for the period of Iddat. Feeling aggrieved the respondent filed an appeal which was allowed and decree for recovery of dower amount to the tune of Rs. 1,50,000/- and maintenance allowance @ Rs.2000/- per month was passed in favour of Respondent No. 1. Hence, this writ petition by the husband/petitioner.
3. Learned counsel for the petitioner mainly contended that in case of dissolution of marriage on the basis of khulla the wife was not entitled to the recovery of dower amount. Further, impugned order of dissolution of marriage on the basis of khulla was not appealable. Therefore, the impugned judgment and decree is not sustainable to this extent.
4. As against that, the learned counsel for the respondent supported the impugned judgment and decree.
5. We have heard the learned counsel for the parties at length and perused the available record.
6. A perusal of record would show that the judgment and decree for dissolution of marriage on the basis of khulla was not, appealable. The learned appellate Court conveniently ignored this important aspect though the ground of competency of appeal was agitated by petitioner in his arguments as mentioned in the impugned judgment but the same was dealt with in a slipshod manner. The learned appellate Court failed to appreciate that in the instant case the relief of dower amount could not be considered in isolation but the same had nexus with the dissolution of marriage based on khulla and, therefore, the findings of trial Court for not granting dower could not be reversed without disturbing the ground of khulla which essentially would tantamount to an appeal against dissolution. No appeal lies against dissolution whether it is on the ground of cruelty or khulla. The learned appellate Court exercises appellate jurisdiction and has wrongly presumed himself as Qazi which is not only against Islamic jurisprudence but also Family Laws prevalent and governing family disputes. Para 4 of the impugned judgment is also disapproved with the result that the grant of dower by the appellate Court is without jurisdiction. As far as maintenance allowance is concerned that has been proved on record and findings of appellate as well as trial Court are maintained.
7. Consequently, we partially allow the petition to the extent that the judgment and decree granted to Respondent No. 1 for the recovery of dower amount of Rs. 1,50,000/- is set-aside while remaining decree of maintenance granted by trial as well as appellate Court is upheld and left intact. No order as to costs.
(R.A.) Petition partially allowed.
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