Present: Syed Iftikhar Hussain
Shah, J.
Mst. AAMNA
ABDULLAH--Petitioner
versus
JUDGE FAMILY
COURT, MULTAN
and another--Respondents
W.P. No. 10933
of 2010, decided on 24.5.2011.
West
Pakistan
Family Courts Act, 1964 (XXXV of 1964)--
----S.
10(4)--Limitation Act, (IX of 1908), S. 5--Constitution of Pakistan, 1973,
Art. 199--Constitutional petition--Constitutional jurisdiction of High Court
after lapse of four years--Laches--Suit for dissolutation of marriage, recovery of dower and dowry
articles--Pre-trial re-conciliation proceedings failed, suit for dissolution of
marriage was decreed on ground of Khula--Direction to
return of five tolas gold in lieu of Khula--Challenged to--Validity--Whereas in filing of
constitutional petition lapse of time or question of laches
is to be examined on equitable principles for reason that exercise of
constitutional jurisdiction is always in nature of equitable relief--Petitioner
had invoked constitutional jurisdiction of High Court after a lapse of four
years--Petitioner invoking constitutional jurisdiction is guilty of
contumacious lethargy, inaction, laxity and gross negligence in enforcement of
her right--Petition was liable to be dismissed on ground of laches--Petition
was dismissed. [P. 137] A
PLD
2010 Lah. 308, 2005 CLC 1447,
PLD 1987 Lah. 471, 1999 SCMR
1072, 2006 CLC 1662 & 2008 CLC 587, rel.
Mr. Khalil-ur-Rehman Mayo, Advocate for Petitioner.
Rana Muhammad Javed Iqbal, Advocate for
Respondents.
Date of hearing:
24.5.2011.
Order
Mst. Aamna Abdullah has called in question the legality of the
order and decree dated 31.1.2007 passed by the learned Judge Family Court,
Multan whereby her suit for seeking decree for dissolution of marriage was
decreed subject to the return of Rs.500/- and five tolas
gold ornaments in lieu of Khula.
2. Mst. Aamna Abdullah (petitioner) instituted suit for seeking
decree for dissolution of marriage, recovery of maintenance for herself and her
minor son, for recovery of dower and dowry articles against Nemat
Ullah (Respondent No. 2) with whom her marriage was
solemnized on 08.02.2004. Her dower was fixed as Rs.500/- in cash, five tolas gold and a house, consisting of 2 1/2 Marlas. The articles mentioned in the list Annexure-A were
also given to her at the time of her marriage. Her dower is still unpaid.
According to her the attitude of the Respondent No. 2 was cordial in the
beginning but became harsh lateron and he started to
beat her and a after four months of the marriage,
Respondent No. 2 ousted her from his house. Adeel the
minor son was born in the house of her parents and respondent has not even paid
the expenditures incurred on delivery. Now it is impossible for her to live
with her husband within the limits prescribed by Almighty Allah. Hence, this suit.
3. Respondent No. 2 contested the suit and
allegations leveled in the plaint were denied and it was contended that the
dower of Rs.500/- and five tolas gold ornaments had
already been paid to the plaintiff.
4. On 31.01.2007 when the case was fixed for
pre-trial reconciliation proceedings, Respondent No. 2 did not appear in the
Court and the learned Judge Family Court in the light of the provision of
Section 10(4) of the West Pakistan Family Courts Act, 1964 after declaring the
pre-trial reconciliation proceedings fail, decreed the suit for dissolution of
marriage on the ground of Khula. It was also held
that from the copy of the Nikkah Nama
produced with the file, Rs.500/- and gold ornaments weighing 5 Tolas were paid to the plaintiff/petitioner as dower at the
time of her marriage, therefore, she was directed to return the same. Aggrieved
by the order of returning the Cash Rs.500/- and five tolas
gold in lieu of Khula, the petitioner has invoked the
constitutional jurisdiction of this Court.
5. Learned counsel for the petitioner has contended
that Respondent No. 2 has never claimed the return of dower in lieu of Khula, the petitioner has not claimed dissolution of
marriage mere on the basis of Khula, therefore, the
order of the Judge Family Court regarding the returning of Rs. 500/- and five tolas gold ornaments is illegal and void. Reliance has been
placed on Muhammad Zafar v. Judge, Family Court and
another (2005 CLC 1844) and Farida Khanum v. Maqbul Ilahi and 2 others (1991 MLD 1531). It is further contended
that the petitioner could not invoke the jurisdiction of this Court due to the
illegal advice of her previous counsel and due to her ailment, therefore the
delay in filing the writ petition is liable to be condoned in the light of Farzand Raza Naqvi
and 5 others v. Muhammad Din through legal heirs and others (2004 SCMR 400), S.A.Jameel v. Secretary to The Government of the Punjab,
Cooperative Department and others (2005 SCMR 126) and Masooda
Begum through legal heirs v. Government of Punjab through Secretary Forest,
Lahore and 9 others (PLD Supreme Court 90).
6. On the other hand, learned counsel for
Respondent No. 2 has contended that the learned Judge Family Court has passed
the impugned order in accordance with law after going through the evidence
present on record especially the copy of Nikkah Nama submitted by the petitioner herself wherein it was
mentioned that Rs.500/- and five tolas gold ornaments
had been given to the petitioner at the time of her marriage. The learned Judge
Family Court has rightly directed the petitioner to return those benefits in
lieu of Khula. Learned counsel for the respondent has
further contended that the writ petition has been filed alter lapse of four
years of passing the impugned order and decree which was required to be filed
within a reasonable time. Such inordinate delay in approaching High Court can not be condoned. He further contended that the impugned
order and decree are in accordance with law. Learned counsel relied on Mst. Rahmat v. Additional
District Judge-II, Muzaffargarh and 2 others (PLD
2010 Lahore 308), Tayyab Iqbal
v. Member, (Colonies) Board of Revenue, Punjab Lahore and 3 others (2005 CLC
1447), Shams Din v. Aman Ullah
and 3 others (1987 PLD Lahore 471), Gatron
(Industries) Limited v. Government of Pakistan and others (1999 SCMR 1072),
Babar Islam v. Mst. Sheeba Bashir and another (2006 CLC 1662) and Abdul Haq Shahid v. District Judge,
Toba Tek Singh and 2 others (2008 CLC 587).
7. After the failure of the reconciliation
proceedings, the learned Judge Family Court decreed the suit of the petitioner
for dissolution of marriage in view of the proviso of the Section 10(4) of the
West Pakistan Family Courts Act, 1964. In Paragraph No. 10 of the plaint it has
been categorically mentioned that the attitude of the respondent was harsh towards
plaintiff. He has failed to maintain her, therefore
she has developed hatred in her mind against him and can not
live with him within the limits prescribed by Almighty Allah. Therefore, she
wants decree for dissolution of marriage on the basis of Khula.
8. The proviso of Section 10(4) of West Pakistan
Family Courts Act, 1964 is as under:--
"That
notwithstanding any decision or judgment of any Court or tribunal, the Family
Court in a suit for dissolution of marriage, if reconciliation fails, shall
pass decree for dissolution of marriage forthwith and also restore the husband
the Haq Mehr received by
the wife in consideration of marriage at the time of marriage."
9. In the instant case, the petitioner has
relied on the Nikkah Nama
wherein it has been mentioned that Rs.500/- and five tolas
gold ornaments had been given to the petitioner at the time of her marriage.
The entry of Nikkah Nama
regarding the payment of aforesaid dower has not been challenged by the
petitioner so far before any competent forum. The bare perusal of Nikkah Nama reveals that Rs.
500/- and five tolas gold ornaments have been given
to the petitioner at the time of marriage. According to the aforesaid proviso
of Section 10(4) of the West Pakistan Family Courts Act, 1964 it is mandatory
upon the Family Courts that a decree for dissolution of marriage is dependant upon the restoration of Haq-ul-Maher to the husband. In the present case the learned
Judge Family Court has properly exercised the jurisdiction vested in it and
dissolved the marriage strictly in accordance with law. The case law produced
by the learned counsel for the petitioner is not directly applicable to the
facts and circumstances of the case. The petitioner has claimed dissolution of
marriage on the basis of Khula which has been granted
to her in accordance with law. The constitutional petition has not been filed
within a reasonable time, while dealing the matter delay in filing of the legal
proceedings within the period specified under the provision of law, the Hon'ble Supreme Court in the case titled S.A. Jameel v. Secretary to the Government of the Punjab,
Cooperative Department and others (2005 SCMR 126) has held that in case of
limitation, the delay of each day is to be explained by furnishing sufficient
cause for enlargement of time and condonation of
delay within the contemplation of Section 5 of Limitation Act, 1908 whereas in
filing of Constitutional petition lapse of time or question of laches is to be examined on equitable principles for the
reason that the exercise of Constitutional jurisdiction is always discretionary
with the Court and relief so granted is always in the nature of equitable
relief---In case High Court comes to a conclusion that equity leans in favour of petitioner, the Court must exercise discretion in
favour of such party but in the instant case, the
petitioner has invoked the constitutional jurisdiction of this Court after a
lapse of four years. The petitioner involving the constitutional jurisdiction
is guilty of contumacious lethargy, inaction, laxity and gross negligence in
the enforcement of her right. Therefore, this petition is also liable to be
dismissed on the ground of laches.
10. In the light of aforesaid discussion, the
present petition is without merits and the same is hereby dismissed.
(R.A.) Petition
dismissed
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