The Sacked Employees’ (Reinstatement) Ordinance, 2010

An Ordinance to provide relief to persons in corporation service or autonomous or semi-autonomous bodies or in Government service who were dismissed, removed or terminated from service

[Gazette of Pakistan, Extraordinary, Part I,

5th February, 2010]

No.2(I)/2009-Pub., dated 5-2-2010.--The following Ordinance promulgated by the President is hereby published for general information:---

Whereas it is expedient for the purpose of providing relief to persons who were appointed in a corporation service or autonomous or semi-autonomous bodies or in Government service during the period from the 1st day of November, 1993 to the 30th day of November, 1996 and were dismissed, removed or terminated from service during the period from the 1st day of November, 1996, to the 31st day of December, 1998;

And, whereas the National Assembly is not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action;

Now, therefore, in exercise of the powers conferred by clause (I) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following Ordinance:---

1. Short title, extent and commencement.---(1) This Ordinance may be called the Sacked Employees’ (Reinstatement) Ordinance, 2010.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2. Definitions.--In this Ordinance unless there is anything repugnant in the subject Or context,---

(a) “person in corporation service” means a person who was appointed in a corporation, organization or autonomous or semi-autonomous body, established by or under a Federal law or owned or controlled by the Federal Government, during the period from the 1st day of November, 1993 to the 30th day of November, 1996 (both days inclusive) and was dismissed, removed or terminated from service or given forced golden handshake during the period from the 1st day of November, 1996 to the 31st day of December, 1998 (both days inclusive);

(b) “person in Government service” means a person who was appointed and was a member of the civil service of the Federation or held a civil . post in connection with affairs of the Federation in a Ministry, Division or department during the period from the 1st day of November, 1993 to the 30th day of November, 1996 (both days inclusive) and was dismissed, removed or terminated from service or given forced golden handshake during the period from the 1st day of November, 1996 to the 31st day of December, 1998 (both days inclusive);

(c) “Review Board” means the Review Board established under section 4; and

(d) “Secretary” includes an Additional Secretary.

3. Reinstatement of employees.---Notwithstanding anything contained in any law for the time being in force, judgment of any Tribunal or a Court including the Supreme Court and the High Court, contract or terms and conditions of service, all persons appointed in corporation or Government service, during the period from the 1st day of November, 1993 to the 30th day of November, 1996 (both day: inclusive) and dismissed, removed or terminated or given forced golden handshake during the period from the 1st day of November, 1996 to  31st day of December, 1998 (both days inclusive) shall be reinstate immediately in service on one scale higher to their substantive _{scale (}^.f the post at the time of termination of service and report for duty to the `.`.”r respective departments or organizations:

Provided that in case of change in scale or structure of any pc::t or cadre by the competent authority after the 31st day of December, 1998, the persons in corporation or Government service on reinstatement shall be placed on, one scale higher than the revised or existing scale of the post:

Provided further that any person in corporation or Government service who was dismissed, removed or terminated from service on account of closure of organization or whose organization ceased to exist before the 13th February, 2009, or absence from duty, misappropriation, of Government money or stock or medical unfitness may prefer petition to the Review Board as provided in section 5.

4. Establishment of Review Board.---There is hereby established a Review Board to review the cases of persons in corporation or Government service who were dismissed, removed or terminated from service on account of closure of organization, absence from duty, misappropriation of Government money or stock or medical unfitness. The Review Board shall consist of Secretary, Law and Justice Division and Secretary, Establishment Division to be headed by a retired Judge of the Supreme Court or of a High Court to be appointed by the Federal Government.

5. Petition to the Review Board.---(1) Any person in corporation or Government Service who was dismissed, removed or terminated from service on account of closure of organization, absence from duty, misappropriation of Government money or stock or medical unfitness may within sixty days of the commencement of this Ordinance, prefer petition for review of the order of dismissal, removal or termination from service to the Review Board which shall decide the case within thirty days of its first hearing. The Review Board may, on consideration of review petition and any other relevant material, confirm, set aside, vary or modify the order.

(2) The order of the Review Board passed on the review petition shall be final and shall not be called in question in any Court, Authority or Tribunal.

(3) In dealing with cases under this Ordinance the Board shall have power to regulate its own procedure.

6. Reinstatement of contract employees.---(1) A person in corporation or Government service who held the post on contract against a regular post and his contract was extended at least once and he was subsequently dismissed, removed or terminated from service shall be reinstated immediately and adjusted against regular post.

(2) person in corporation or Government service appointed on contract against a temporary post and who was dismissed, removed or terminated before the completion of his contract period shall be reinstated immediately for the remaining portion of his contract.

7. Reinstatement of golden handshake employees.---Persons in corporation or Government Service who were given forced golden hand shake shall be reinstated immediately subject to reimbursement of all monetary benefits received by them as a result of forced golden handshake.

8. Creation of supernumerary post.---Where due to non-availability of sanctioned posts or an equivalent- scale post in corporation or Government service, the Secretary of the respective Ministry, Division, head of the department or corporation or organization shall^-immediately create supernumerary posts to accommodate the reinstated employees and such arrangement shall continue till the availability of regular posts are made available.

9. Manner and mode of payment of compensation on reinstatement.-On reinstatement in service each employee in corporation or Government service shall be paid compensation equal to three years emoluments of the pay scale in which he would be placed and the emoluments shall be paid to him in the following manner, namely:---

(a) first installment equal to twelve months emoluments on reinstatement;

(b) second installment equal to twelve months emoluments on the 1st day of January, 2010; and

(c) third installment equal to twelve months emoluments on the 1st day of January, 2011.

10. Reinstated employees not to claim other service benefits.--Any person in corporation or Government service who is reinstated under this Ordinance shall not be entitled to claim seniority or arrears of pay or other service benefits save as provided in this Ordinance and shall be required on reinstatement to submit a surety bond in the form specified for the purpose.

11. Ordinance to override other laws.---The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force or in any judgment of any Tribunal or Court including Supreme Court and High Court.

12. Power to make rules.---The Federal Government may make rules to carry out the purposes of this Ordinance. 

13. Repeal.-The Sacked Employees (Reinstatement) Ordinance, 2009 (XXIII of 2009) is hereby repealed.

Wife cannot be compelled to live with husband whom she hates

PL J 1996 Karachi 1115

Present: ABDUL HAMEED DOGAR, J. Mst. KIRAN SABAH-Petitioner

versus

IIND ADDITIONAL DISTRICT JUDGE and another-Respondents

Constitutional Petition No. S-1076 of 1995, decided on 1st February, 1996.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

—S. 5-Constitution of Pakistan, Art.  199--Dissolution of marriage on ground of Khula-It is well settled that if conscience of Court is satisfied  that it will not be possible for the spouses to live together as a faithful union within limits prescribed by God, they should be separated on ground of tf/iu/a--Petitioner has proved her aversion in plaint and evidence that she has developed hatred and disliking her heart against respondent and it is impossible for her to live with him as wife within limits prescribed by God and she is prepared to relinquish dower and other benefits-Petitioner's father has confirmed that respondent used to bring strangers in his house and compelled petitioner to lead immoral life-Held: Islam prefers divorce to adultery and if a wife intends to get a divorce on ground of Khula, she may obtain a decree of dissolution by giving up her dower-Petition accepted.

[P. 1119] A

Abdul Qadir Shaikh, Advocate for Appellant. Respondents Nos. 1 and 2 (absent). Parya Ram Waswani, Advocate for Respondent No. 3. Date of hearing: n 1.1996.

JUDGMENT

Through this petition petitioner invokes extraordinary jurisdiction of this Court seeking declaration that the judgment and decree dated 16.1.1995 and 20.9.1995 passed by the learned Joint Civil Judge and Family Judge, Sukkur and learned Second Additional District Judge, Sukkur respectively are illegal and without lawful authority and that dissolution of marriage on the ground of Khula be ordered.

The facts constituting this petition are that petitioner Mst. Kiran Sabah married respondent Mushtaq Ahmed on 15.11.1993 at Sukkur and Rs. 1,00,000 was settled as dower payable on demand, which has not been paid to the petitioner. Certain conditions were mentioned in the Iqrarnama written by the respondent at the time of Nikahthat nothing has been paid in lieu of hand of the petitioner and that the golden ornaments of 8 tolas may be given which shall be the property of the petitioner. Petitioner's parents gave Rs. 50,000 consisting golden ornaments weighing 5 tolas, 25 pairs of clothes and other articles. Petitioner had hardly lived for a period of about one week with respondent Mushtaq Ahmed at Mirpur Mathelo when she came to know that her husband was a man of bad character, supplier of women and he used to supply his sisters to various persons and so many strangers used to visit his house. According to her she was also compelled by respondent No. 3 to lead immoral life and on her refusal she was being maltreated and her life was made miserable. According to petitioner's case on 20th January, 1994 her husband brought strangers in the house andcompelled the petitioner to allow one of the strangers to have sexual intercourse with her. On such refusal he gave severe beating to her and thereafter took her and left her at the house of her father's sister at Mirpur Mathelo. Thereafter, the petitioner came to the house of her parents at Sukkur and filed suit for dissolution of marriage on the ground ofKhula in February, 1994.

Respondent No. 3 Mushtaq Ahmed denied petitioner's allegations in his statement filed before the Family Court. He stated therein that petitioner's father Nizamuddin had accepted an amount of Rs. 50,000 from him out of which he gave two tolas of gold ornaments and 5 pairs of clothes to the petitioner in marriage and misappropriated the remaining amount and that dowery articles were also taken away by petitioner alongwith her parents and one Ghulam Kadir at the time she left the house in his absence.Respondent pleaded that he is a technical man having Diploma of Associate Engineer in Electrical Technology and is serving as Sub-Engineer at Gudu Thermal Power Station, Kashmore and is drawing pay of Rs. 5,200 and is a respectable person of the locality. According to him petitioner had also taken away 8-1/2 tolas of golden ornaments, ten pairs of clothes and Rs. 40,000 in cash while leaving the house in his absence. In further pleas respondent claimed to reserve right to initiate civil and criminal proceedings against petitioner, her father and her mother and so-called uncle Ghulam Kadir for the recovery of the articles and cash Rs. 40,000. The respondent also asserted his right to recover Rs. 50,000 from petitioner's father taken from him at the time of marriage. On the pleadings of the parties trial Court framed 8 issues, including Issue No. 6 on the point of Khula.

The petitioner examined herself and her father Nizamuddin while respondent examined himself, Khan Muhammad and Barkat All before the Family Court. The trial Court after discussing the evidence in detail dismissed the suit of petitioner opining that she had miserably failed to prove her case and is not entitled to Khula. Appellate Court too dismissed the petitioner's appeal and confirmed the findings of the lower Court.

Mr. Shaikh Abdul Kadir counsel for the petitioner and Mr. Parya Ram Waswani for respondent No. 3 advanced their arguments at length before me. Petitioner's counsel contended that both Courts below have not appreciated properly the evidence led by the petitioner and that the judgments are based on non-appreciation and misreading of the evidence which has resulted in miscarriage of justice.

According to the petitioner's counsel she had developed hatred against the respondent and it is impossible for her to live within the limits of God. The counsel states that the petitioner had clearly stated in her plaint and the statement that the respondent is a man of bad character and is a pimp, supplier of women and also used to supply his sisters to various persons and so many strangers used to visit his house. It is mentioned by her that her husband used to compel her to lead immoral life and on her refusal he used to maltreat her and on 20.1.1994 he brought strangers in his house and compelled her to have sexual intercourse with one of the strangers. Her counsel pointed out that she has stated all these things specifically in her deposition and this piece of evidence has gone unchallenged. She plainly refused to go back to the defendant and further urged that the petitioner and her father have categorically deposed that petitioner was expelled by respondent and was left at the house of her father's sister at Mirpur Mathelo from where she came to the house of her parents at Sukkur. Her father also supported the version of the petitioner before Family Court stating that thepetitioner had told him about the respondent's character and his being pimp. Mr. Shaikh submitted that the respondent has failed to advance any evidence in rebuttal to the version of petitioner and has miserably failed to prove that any dowery articles including cash of Rs. 40,000 were taken away by petitioner, her father and uncle Ghulam Kadir. According to the counsel the conciliation between the spouses failed at pre-trial as well as post-trial stage before the Family Court and also before the Appellate Court when on 20.9.1995 Additional District Judge called the petitioner and tried to bring conciliation in-between the parties but the petitioner refused to join the company of respondent No. 3 at any cost.

The right to ask for Khula by a woman has been ordained in the Holy Quran and man and woman have been kept at equal footing in respect of divorce against each other. Petitioner's counsel, therefore, lastly urged that since the serious allegations in the form of evidence have been put forth by petitioner and her father against respondent which have created hatred in petitioner's mind against respondent and it will not be possible for them to live together within the limits of God. So, petitioner's claim for dissolving her marriage on Khula is proved.

In support of his submissions petitioner's counsel has referred to the following cases:-

 i)    Muhammad Aslam v. Mst. Razia Sultana PLD 1959 Lah.287. (ii)   Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169. (iii) Ghulam Mustafa v. Judge, Family Court and another 1991 CLC 2082.

(iv) Mst. Nasreen Bibi v. Atta Muhammad PLD 1994 Lah. 276. (v)   Muhammad Anwar v. Nusrat Bibi NLR1994 Civil 615.

Mr. Parya Ram counsel for respondent Mushtaq Ahmed assailed the evidence of petitioner and her father Nizamuddin stating that petitioner has failed to prove her case on the ground including that ofKhula, so the Courts below have rightly appreciated the evidence in refusing to dissolve marriage. He contended that the petitioner is not entitled to claim Khula as a matter of right without satisfying the Court that the relations between the spouses were so strained that they could not live within the limits prescribed by God. Here the Courts below, on the evidence before them, are satisfied that she has failed to prove intense dislike or fixed aversion to live within the limits prescribed by Allah. In support he cited Aali v. Additional District Judge-I, Quetta and another 1986 CLC 27 and requested to dismiss the petition.

The contention of the learned counsel for petitioner is well-founded. It is well-settled that if on the basis of material on the record for circumstances prevailing in the case the conscience of Court is satisfied that it will not be possible for the spouses to live together as a faithful union within the limits prescribed by God, they should be separated on the ground ofKhula. In the present case petitioner has proved her aversion raised in the plaint that respondent (her husband) is man of bad character, supplier of women and used to supply his unmarried sisters to the strangers and that he compelled her to lead an immoral life, and on 20.1.1994 she was compelled by him to have sexual intercourse with one of the strangers and on refusal she was given severe beating and then she was left at the house of her father's sister at Mirpur Mathelo. Not only this but she categorically stated in her evidence that she has developed hatred and dislike in her heart against respondent and it is impossible for her to live with him as wife within limits prescribed by God and she is prepared to relinquish dower amount of Rs. 1,00,000 and other benefits. Respondent Mushtaq Ahmed has failed to shatter this piece of evidence though the petitioner has been sufficiently cross-examined*by respondent's counsel. P.W. Nizamuddin petitioner's father has confirmed that respondent used to bring strangers in his house and compelled petitioner to lead immoral life and on her refusal she was left at his sister's house at Mirpur Mathelo. The Court will have to consider their evidence whether the rift between the parties is of such a serious nature that the spouses will not observe the limits of God if allowed to remain together and on such a positive conclusion, it is left with no discretion but to grant dissolution of marriage. Islam prefers divorce to adultery and if a wife owing to her aversion, hatred and dislike with the husband intends to get a divorce, she may obtain a decree of dissolution by giving up her dower and other benefits and such a decree is called Khula. In the present case it is admitted at the trial by the parties that the dower was fixed at Rs. 1,00,000 which was not paid to the petitioner as yet. Moreover, nothing more has been proved regarding the other benefits being obtained by petitioner from marriage. In the present case the parties, though educated, could not pull on together amicably right from the beginning. They separated within one month of their marriage and since then they are living separately for more than one year and could not reconcile. The petitioner's statement that her husband is a pimp and compelled her to lead immoral life supported by her father is not an ordinary thing to be ignored which has been discarded by the two Courts below without valid reasons. This sort of maligning is sufficient to come to a conclusion that petitioner has developed a fixed aversion of hatred and dislike in her heart against her husband and is sufficient reason to attract the conscience of the Court to conclude that the reunion will not be faithful.

In case of Muhammad Aslam v. Mst. Razia Sultana and others PLD 1995 Lah. 2987 it has been held that even if wife omits to demand Khula, can be granted decree forKhula if the conditions exist that in a case a decree for dissolution of marriage is not granted it will give birth to a hateful union and the parties will not observe the limits prescribed by God. In case of Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169 Supreme Court has held the Court is entitled to form the opinion as regards Khulaafter taking into consideration all the factors including how the parties had conducted themselves during the trial of the suit. In case of Ghulam Mustafa v. Judge, Family Court and another 1991 CLC 2082 marriage has been dissolved on the ground of Khula where on the basis of material and circumstances in case conscience of Court was satisfied that it would not be possible for the parties to live together as husband and wife within the limits prescribed by Allah. In case Mst. Nasreen Bibi v. Atta MuhammadPLD 1994 Lah. 276 Khula has been allowed and it is observed that wife is not supposed to give a logical, objective and sufficient reason for claiming Khula. Wife would be entitled toKhula in case fixed aversion is proved. In this authority cases of Mst. Bilqis Fatima v. Nqjam-ul-Ikram Qureshi PLD 1959 Lah. 566, Muhammad Akram v. Mst. Yasmin and another 1983 CLC 3098 and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 are discussed and relied upon. Same view has been held in the case of Muhammad Anwar v. NusratBibi NLR1994 Civil 615.

The judgment relied upon by learned counsel for respondent Mushtaq Ahmed proceeded on distinct facts and grounds. The facts of cited case (Aali v. Additional District Judge-I, Quetta and another, 1986 CLC 27) are that although Nikah was performed but Rukhsati had not taken place and spouses had never lived as husband and wife.

For the foregoing discussion this writ petition is allowed. The mpugned judgments and decrees of the Courts below are declared to be null and void and without lawful authority and of ho legal effect and the petitioner's suit for dissolution of marriage on the ground of Khula is decreed. Since the petitioner has relinquished the right of dower which isadmittedly not paid to her and the other benefits being not proved, the question of return of benefits to the respondent does not arise. Parties areleft to bear their own costs. (M.Y.F.K.)                               Petition accepted.

Child born after two years of divorce is legitimate

PLJ 2007 Lahore 1178

Present: Syed Hamid Ali Shah, J.

ZAHEER AHMAD--Petitioner

versus

Mst. NASIMAN BIBI alias NASIM BIBI and 3 others--Respondents

W.P. No. 5219 of 2006, decided on 9.1.2007.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 7--Muslim Family Laws Ordinance, (VIII of 1961), Ss. 8 & 9--Majmooa-e-Qawaneen-e-Islam, Ss. 146 & 149--Constitution ofPakistan, 1973, Art. 199--Constitutional petition--Dissolution of marriage on the basis of Khula--Legitmacy of a child born after 11 months and 5 days of desertion--Denying of maintenance to such child--Appreciation of evidence--Held: Allegation of husband of disowning the child born out of the wedlock, should not be given weight, without the strict proof in such regard to the contrary--Paternity of a child born out of the lawful wedlock has a presumption of truth in its favour; simple denial could not take away the status of legitimacy--Such child is presumed to be an issue of his parents without any acknowledgement or affirmation of the parentage on the part of father--Further held: Evidence of the mother and the child was sufficient to prove the legitimacy of a child, in the absence of any cogent evidence to the contrary--Mother of the minor had been living in adultery--Child had been disowned in the proceedings against the petitioner for recovery of maintenance to the minor--Relationship had been denied to escape the liability to maintain the child--Husband had not approached the Court of competent jurisdiction for "Liyan"--Thus, the minor born out of the wedlock was a legitimate child and as such was entitled to be maintained by the petitioner.

      [Pp. 1181, 1182 & 1185] A, B & K

PLD 1975 SC 624; PLD 1988 SC 8; PLD 1991 SC 275; PLD 1993 Lah. 575; 1987 CLC 2073; 1992 CLC 1180 & 2000 CLC 1605, ref.

(ii)  Islamic Law--

----Principles of Fiqh--According to Sunni School of thought, a child born after 6 months of marriage or within 2 years of dissolution of marriage would be presumed to be a legitimate son of his father--According to Hanfi School of thought a child born in wedlock is of his parents, even if the husband had no access to the wife.

      [Pp. 1182 & 1183] C & D

PLD 1975 SC 624; 1987 MLD 172 & PLD 1995 Pesh. 124, ref.

(iii)  Islamic Law--

----Procedure of Lian--Repudiation of child, procedure--Husband has to swear before Qazi that child is illegitimate and fruit of adultery, in that event the Court will pass a decree whereby not only the marriage will be dissolved but also the child will be declared illegitimate, such husband has to disown the child immediately on his birth or on having the knowledge of such birth--Strong and un-impeachable evidence is required to prove illegitimacy.     [P. 1183] E

Islamic Law--

----"ILLA" (       )--Manner of desertion--Procedure--Husband has to swear, he will stay abstained from his wife, in such event, the husband can desert his wife for a period of four months only--Desertion by the petitioner over a period of four months contravenes the injunctions of Islam.   [P. 1184] F & G

Verse No. 226 of Sura Al-BAQRA ref.

West Pakistan Family Court Act, 1964 (XXXV of 1964)--

----S. 7--Recovery of dowery articles, decree--Concurrent findings--Appreciation of evidence--Effect of admission--Contention--Dowry articles in view of non mention of detail in the list and price thereof, cannot be granted, was repelled--Admittedly the dowery articles were lying in the house of the petitioner; therefore no interference is justified. [P. 1184] H

Constitution of Pakistan, 1973--

----Art. 199--Muslim Family Laws Ordinance, (VIII of 1961), S. 8--Dissolution of marriage by way of Khula--Dowery articles formed part of consideration for khula was could not be considered at that stage--Petitioner was required to raise all points of law and fact in the written statement--Plea not raised before Courts below could not be considered for the first time in writ petition--Petition was dismissed.

      [Pp. 1184 & 1185] I & J

1996 SCMR 1170 and 1998 SCMR 593, ref.

Rai Muhammad Tufail Khan Kharal, Advocate for Petitioner.

Ch. Khalid Farooq Akbar, Advocate for Respondents.

Date of hearing: 9.1.2007.

Order

Respondent No. 1 approached the Family Court, through institution of suit for dissolution of marriage, recovery of dowry articles and for award of maintenance to Respondent No. 1 and the minor son. The petitioner resisted the suit through filing the written statement, wherein averments of the plaint were controverted and various preliminary objections were raised. Learned trial Court framed issues, recorded the evidence of the parties and on conclusion of the trial passed the decree. Resultantly, the marriage was dissolved, dowry articles were granted excluding the golden ornaments (weighing 15 tolas) and the maintenance to Respondent No. 1 was allowed at a rate of Rs. 1,000/- (rupees one thousand only) for the period of Iddat only while the maintenance of Respondent No. 2 at a rate of Rs. 800/- (rupees eight hundred) per month was granted vide judgment and decree dated 22.3.2005. The decree was assailed in appeal by the petitioner. Learned appellate Court vide judgment and decree dated 6.6.2005, upheld the decision of the trial Court to the extent of maintenance granted to Respondents No. 1 & 2 and the decree of trial Court qua the dowry articles, was modified. Learned Court viewing the evidence of the parties directed the petitioner to deliver the articles of dowry, lying in the room under lock and key, in the house of the petitioner. The petitioner has now assailed the decrees/judgments of the two Courts below, in this petition.

2.  It is contended by the petitioner that the dowry articles in view of non-mention of detail, in the list and price thereof, cannot be granted. Learned counsel has further submitted that the marriage has since been dissolved on the basis of Khula, thus the respondent is not entitled to dowry articles, which are considerations of Khula. The petitioner has emphasized that it is established from record that Respondent No. 1, had left the house of the petitioner on 2.12.2003 and Respondent No. 2 was born on 7.11.2004. Spouse remained aloof from each other. A child born after 11 months and 5 days of desertion, is not legitimate. Learned Courts have decided the question of legitimacy without framing a specific issue to that effect. Learned counsel for the Respondents No. 1 & 2, on the other hand, stood behind the impugned decrees. He went on to argue that the impugned judgments have been passed, after proper appraisal of the evidence on the record. He lastly contended that the petition is barred by laches and merits dismissal on that score.

3.  I have heard the learned counsel for the parties and perused the material available on the record.

4.  Respondent No. 2 was born on 7.11.2004, at a point of time, when the spouse were living in desertion, since 2.12.2003. The child was born after 11 months and 5 days of desertion. The petitioner is denying the maintenance to the child, disowning him as his issue and accused Respondent No. 1, of having given birth to illegitimate child. Can such child be deprived of his right of being maintained? The question of legitimacy of child has a far reaching impact, therefore, determination of such question should not be taken lightly. The allegation by husband or his act of disowning the child born out of the wedlock, should not be given weight, without a strict proof in this regard to the contrary. The paternity of a child born, out of the lawful wedlock, has a presumption of truth in it's favour. Simple denial, would not take away the status of legitimacy; for according to Mohammadan Law "child follows the bed". Every presumption is made in favour of legitimacy of the child. Such child is presumed to be an issue of his parents without any acknowledgement or affirmation of the parentage on the part of father, the child follows bed (Firash). According to Sections 146 and 149 of Majmooa-e-Qawaneen-a-Islam edited by Dr. Tanzeel-ur-Rehman, the evidence of woman would be sufficient to prove parentage of a child. In the case of "Mst. Hamida Begum Vs. Mst. Murad Begum and others" (PLD 1975 S.C. 624), it has been held that to prove the legitimacy of the child, evidence of mother and of the child is sufficient. Further discussion in this respect is not useful, as the superior Courts have constantly leaned in favour of legitimacy of a child, in the absence of any cogent evidence to the contrary. Reference in this respect can be made to the cases of "Nazir Fatima Vs. Ghulam Fatima and others" (1987 CLC 2073), "Bashir and others Vs. Ilam Din and others" (PLD 1988 S.C. 8), "Rehmat Khan and 3 others Vs. Rehmat Khan and another" (PLD 1991 S.C. 275), "Muhammad Tallat Vs. Mst. Yasmin Zohra and another" (1992 CLC 1180), "Manzoor ul Haq and 3 others vs. Mst. Kanzeez Begum" (1993 CLC 109), "Muhammad Hussain alias Muhammad Yar Vs.    Sardar   Khan   and   11   others"   (PLD   1993   Lahore   575)   and "Muhammad Pervez Vs. Additional District Judge and others" (2000 CLC 1605).

5.  There is nothing on the record to establish that Muhammad Ramzan (minor son) was born after the divorce. Nor any evidence exists to the effect that Respondent No. 1/Mst. Nasreen Bibi, had been living in adultery. The child had been disowned, in the proceedings against the petitioner, for the recovery of maintenance to the minor. There cannot be any other view, except that the relationship has been denied by the petitioner to escape the liability to maintain the child.

6.  The petitioner has denied his relationship with Muhammad Ramzan, on the ground that he was born 11 months and 5 days after the desertion. This logic put forth by the petitioner is of no help to him, being contrary to principles of Fiqa (                     ). According to Sunni School of Thought, a child born after six months of marriage or within two years of dissolution of marriage would be presumed to be a legitimate son of his father. To dislodge such presumption one has to prove that the child was born within six months of marriage or more than two years after the divorce. As authority for this proposition, I may mention, the cases of "Mst. Hamida Begum vs. Mst. Murad Begum and others" (PLD 1975 SC 624), "Mst. Ghulam Fatima vs. Mst. Inayat Bibi and 4 others" (1987 MLD 172), "Maqbool Hussain vs. Abdur Rehman and others" (PLD 1995 Peshawar 124).

7.  Further as per Verse No. 15, Surrah-AHQAF (Part XXVI) period for carrying child and his weaning is 30 months. The verse is quoted as under:--

A reference from Majmoo-e-Qwanen-e-Islam edited by Dr. Tanzeel-ur-Rehman needs mention, where the following Hadith is narrated at page 870:--

The Apex Court in the case of "Mst. Hamida Begum, (supra) has observed that according to Hanfi School of Thought a child born in wedlock is of his parents, even if the husband had no access to the wife.

8.  The husband who wishes to repudiate the child, so born, can only do so, by procedure of Liyan (                     ) that is to say, he swears before Qazi that child is illegitimate and fruit of adultery, in which case the Court will pass a decree, not only of dissolving the marriage but also declaring the child illegitimate. Such husband has to disown the child immediately on the birth of child or on having the knowledge of such birth. A strong and unimpeachable evidence is required to prove illegitimacy and one has to prove that child was born after the lapse of three consecutive periods of "Tohar" subsequent to death or divorce by husband. As "Iddat" comprises of three periods of "Tohar": --

9.  Adverting to issue of discretion, it was a tribal custom among Arabs during pre-Islamic era to keep a wife in agony, her husband (in certain cases) used to prolong divorce. The husband used to pronounce divorce and before the lapse of period of Iddat, he used to repudiate the same by recourse to the wife. Prolonging divorce by recourse to wife, shortly before lapse of period of Iddat was disliked by Holy Prophet (PBUH). Hazrat Moosa Al Ashaari when approached Holy Prophet (PBUH) and asked about the prevailing custom in Ashaary tribe, he was told that Islam does not permit or recognize such divorce. Verse No. 231 of Sura AL BAQRA (Part-II) was revealed in this background. Islam enjoins that husband has to live with his wife in a decent manner and has to divorce her in a fair manner.

10.  According to "Illa" (                ) manner of desertion is prescribed, whereby a husband swears that he will stay abstained from his wife, in such event, the husband can desert his wife for a period of four months only. Reference in this respect, is made to Verse No. 226 of Sura Al-BAQRA (Part-2):--

Restraining women in order to tease them or enhance their agony is strictly prohibited in Islam. Relevant part of Verse No. 231, Sura Al-BAQRA Part-2 is quoted below:--

11.  Applying these principles to the case in hand, desertion by the petitioner over a period of four (4) months, contravenes the Injunctions of Islam, needs no consideration.

12.  So far as the question of recovery of dowry articles is concerned, the lower appellate Court has granted the respondent, those articles which were admittedly lying in the house of the petitioner, under lock and key. No interference in the appellate judgment is justified, as admittedly, these articles are lying with the petitioner and belong to Respondent No. 1. Additionally the question that these articles form part

of consideration for Khula was not raised before the Courts below, cannot  be  considered  at this stage. Hon'ble Supreme Court of Pakistan has declared in the cases of "Amir Shah Vs. Ziarat Gul" (1998 SCMR 593) and  "Anwar  Ali  and  others  Vs.  Manzoor Hussain  and  another" (1996 SCMR 1770) that the defendant is required to raise all points of law and fact in the written statement. The grounds/pleas not raised before the Courts below cannot be considered for the first time in this petition.

13.  There is no proof on the record to support the contention of the petitioner that child is illegitimate. More so, when the petitioner has not approached the Court of competent jurisdiction for Liyan, thus, Respondent No. 2 who is born out of the wedlock is a legitimate child and as such entitled has to be maintained by the petitioner. For the foregoing, the petition is without any merit and is accordingly dismissed.

 (M.A.)     Petition dismissed

The base of Khula is verse 229 of Surah Al Baqrah

PLJ 2008 Sh.C. (AJ&K) 160

Present: Iftikhar Hussain Butt, J.

Syed ABDUL QAYYUM SHAH--Appellant

versus

Mst. TANVEER ANDLEEB and 3 others--Respondents

Civil Appeal No. 106 of 2000, decided on 6.2.2008.

Khula--

----Islamic principle of khula--"Surah "Al-Baqrah" verse. 229 of the Holy Quran is the base and origin of the legality of `Khula'--The limits prescribed by Almighty Allah in the verse means the direction to lead a happy life; therefore, before dissolving the marriage on ground of Khula, the Court must satisfy its conscious that there is every apprehension that the spouses will not lead a happy life within the limits ordained by Almighty Allah, the wife wants separation from her husband and she has to pay the consideration--If all the conditions are fulfilled then there is no option left for the Court except to annul the marriage and grant `Khula in favour of the wife.

      [P. 165] A

Principle of Sharia--

----Khula--Decree on basis of `khula', can be passed if the Court comes to conclusion that it was no more possible for spouses to live together within limits ordained by God or not, is a question of fact which depends upon the circumstances of each case.     [P. 166] B

1985 CLC 2509; 1992 SCR 62 1992 CLC 39; 1992 CLC (AJK) 39; PLD 1967 SC 79; 2002 SCR 218; PLD 1975 Lah. 805 & 2005 SCR 82 ref.

Mian Sultan Mahmood, Advocate for Appellant.

Mr. Muhammad Riaz Alam, Advocate for Respondents.

Date of hearing: 6.2.2008.

Order

The above captioned appeal has been filed against the decision and decrees of learned Judge Family Court Mirpur dated 4.4.2006, whereby a decree for dissolution of marriage was passed in favour of Respondent No. 1, herein, against the appellant, herein and the suit for restitution of conjugal rights filed by the appellant was dismissed.

The precise facts forming the background of instant appeal are that Respondent No. 1 filed a suit for dissolution of marriage against the appellant on 31.2.2005 on the grounds of cruelty, mental torture and non-payment of maintenance allowance and on ground of `Khula'.

The suit was resisted by the appellant through his written statement whereby he contented that Respondent No. 1 has got no cause of action. She is mentally disturbed and left home under the pressure of her parents and brothers; therefore, the suit is not maintainable. The appellant further submitted that in case of dissolution of marriage on the basis of `Khula', the appellant is entitled to receive golden ornaments and other household articles owned by him alongwith dower money paid to Respondent No. 1 at the time of marriage.

On 21.4.2005 both the suits were consolidated and the learned Judge Family Court ordered to proceed in the suit for dissolution of marriage.

In the light of pleadings of the parties, the learned Judge Family Court framed the following issues on 23.8.2005:--

1.    Whether the defendant has been treating the plaintiff with cruelty for last 2/3 years? OPP

2.    Whether the defendant is addicted to intoxicating drinks, he hurls abuses and has been snatching the pay of plaintiff? OPP

3.    Whether the defendant has ousted her from the house and now plaintiff is living in a rented house, meanwhile neither the defendant tried to bring her back at home nor paid any maintenance allowance to her and the children? OPP.

4.    Whether the plaintiff has developed certain hatred against the defendant, therefore, the parties cannot live together within the limits ordained by Almighty Allah?

5.    Whether the plaintiff is entitled to a decree for dissolution of marriage, if yes then how? OPP.

6.    Whether both the parties have got no cause of action to bring their suits? OPP upon both plaintiffs.

7.    Whether the plaintiff has left the house under the pressure of her parents and brothers? OPP.

8.    Whether the suit of plaintiff is liable to be dismissed? OPD.

9.    In case Issue No. 5 is proved, whether the defendant is entitled to receive dower money alongwith the golden ornaments and other articles from the plaintiff? OPD.

10.   Whether the defendant is entitled to a decree for restitution of conjugal rights in the suit instituted by him? OPD.

11.   Relief.

In support of her case, Respondent No. 1 produced Mirza Wajahat Baig and Hamayoon, her brothers as witness and she also appeared in the witness box. On the other hand the appellant entered into the witness box and produced Syed Shahid Bukhari, a witness in support of his claim.

The learned Judge Family Court after completion of the proceedings passed a decree for dissolution of marriage on `Khula' in favour of Respondent No. 1 against the appellant and also dismissed the suit for restitution of conjugal rights vide its decision dated 4.4.2006. It is the aforesaid decision and decrees which have been assailed through the instant appeal.

Mian Sultan Mahmood, the learned counsel for the appellant argued with vehemence that Respondent No. 1 is mentally deranged who after shifting the appellant from Gujarat to Mirpur left his house without any cogent reason. The learned Counsel for the appellant further contended that the appellant stated before the Court below that Respondent No. 1 also refused to perform her marital obligations. Similarly, it has been deposed by Syed Shahid Bukhari, a witness for the appellant, that Respondent No. 1 hurled abuses to the appellant in his presence but the aforesaid points were not challenged in cross-examination, therefore, all the aforementioned facts have been deemed to be admitted by Respondent No. 1. The learned counsel also submitted that the learned Judge Family Court fell in grave error while dissolving the marriage of the spouses without considering the fact that the suit for dissolution of marriage was filed in year 2005 after 14 years of the marriage and after birth of three children and there is every probability of reunion of the spouses. The learned counsel laid great stress upon the point that a decree for dissolution of marriage on basis of `Khula' cannot be passed on flimsy grounds and on the simple statement of the wife that she had developed aversion and hatred in her mind against her husband rather the Court is obliged to consider all attending circumstances of the case. The learned counsel pressed into service the submission that the learned Judge Family Court also committed an illegality while refusing the return of the golden ornaments and other articles owned by the appellant. The learned counsel finally submitted that the suit for dissolution of marriage may be dismissed and if at all a decree on basis of `Khula' is to be passed, then Respondent No. 1 be directed to return the golden ornaments and all other articles owned by the appellant. The learned Counsel cited the following authorities in support of his arguments:--

1.    1985 CLC 2509.

2.    1992 SCR 62.

Muhammad Riaz Alam, the learned counsel for the respondents controverted the arguments raised by the learned counsel for the appellant and submitted that the statement of Respondent No. 1 is by itself sufficient to annul the marriage on the ground of `Khula', wherein she categorically stated that the appellant is addicted to intoxicating drinks, treats her with cruelty and does not pay any maintenance allowance to her; therefore, she has developed certain hatred against him and cannot live with him within the limits ordained by Almighty Allah. The learned counsel pointed out that the appellant has failed to prove that the golden ornaments or any other articles were given to Respondent No. 1 rather he has admitted in his statement that he could not produce any proof for purchasing the aforesaid articles. The learned counsel maintained that the impugned decision and decrees do not suffer from any infirmity or illegality; therefore, the same may be upheld. In support of the contentions reliance was placed upon 1992 CLC 39.

I have carefully attended to the submissions made at Bar in the light of material available on the record. A perusal of the suit of Respondent No. 1 shows that according to her she was ousted from the house of the appellant in March 2004 and thereafter the appellant did not provide for her maintenance allowance. The aforesaid suit was filed on 3rd February 2005; therefore, the ground for decree of dissolution of marriage for non-providing of maintenance allowance for a period of two years, is not available to her.

I am also in full agreement with the learned Judge Family Court that Respondent No. 1 also failed to prove the factum of cruelty by convincing evidence. However, a careful perusal of the evidence of the parties shows that the spouses cannot live together within the prescribe limits ordained by Almighty Allah and their relations are strained beyond repair. It also flows from the evidence that Respondent No. 1 has developed aversion and hatred against her husband and in no circumstances she is willing to populate with him. In such state of affairs, it is better to annul the hateful union rather to compel Respondent No. 1 to go back to her husband to lead an unhappy life. The Respondent No. 1 stated before the Court below about the ill-treatment, cruelty, non-payment of maintenance allowance and mental torture of her husband. She also testified that the appellant is addicted to intoxicating drinks. It is also admitted on the record that Respondent No. 1 was shifted from Gujaratto Mirpur on the condition that Respondent No. 1 will bear all expenses at Mirpur. The Respondent No. 1 is a serving lady and the appellant also owns a school. Surprisingly, he insisted upon Respondent No. 1 to bear all expenses of daily life. She refuted the allegations that she was persuaded by her parents and brothers to live separate from her husband. The appellant has denied the suggestion of ill-treatment to his wife but appellant admitted that he shifted to Mirpur on the condition that Respondent No. 1 will arrange a house and pay the rent of the same from her pocket. The Respondent No. 1 denied the suggestion of reconciliation in clear words.

Mirza Wajahat Baig and Hamayoon, the witnesses for Respondent No. 1, are her real brothers and they also support her version whereas Syed Shahid Bukhari, the sole witness for the appellant, testified that the spouses cannot live together happily in spite of his wish.

It will be pertinent to note here that the appellant has alleged that his wife is mentally deranged woman, whereby on the other side according to Respondent No. 1, the appellant is a drunkard, which by itself is sufficient ground to reach the conclusion that the spouses cannot lead to a happy life.

It is necessary to mention here that the parties have filed many suits against each other which are pending in this Court.

So far as an authority cited by the learned Counsel for the appellant is concerned, does not render any help to him because of the distinguishable facts.

I also do not find any substance in this argument of the learned Counsel for the appellant that certain portions of the statements of appellant and his sole witness were not challenged in the cross-examination; therefore, the case of the appellant stands proved. No doubt, where veracity of a witness is not challenged on a particular point in cross-examination, his evidence on that point would be deemed to have been admitted by the other side but in the instant case the salient and important features of the evidence has been challenged in the cross-examination by the respondents. In this manner, it has been abundantly proved on the record that Respondent No. 1 has developed an affixed aversion against her husband and now it has become impossible for the spouses to live within the limits of God.

Let me now deal with the Islamic principles of `Khula'. It may be stated that "Surah-Al-Baqrah" verse 229 of the Holy Quran is the base and origin of the legality of `Khula'. The limits prescribed by Almighty Allah in the aforesaid verse means the direction to lead a happy life; therefore, before dissolving the marriage on ground of `Khula', the Court must satisfy its conscious that there is every apprehension that the spouses will not lead a happy life within the limits ordained by Almighty Allah, the wife wants separation from her husband and she has to pay the consideration. If all the conditions mentioned above are fulfilled then there is no option left for the Court except to annul the marriage and grant `Khula' in favour of the wife. In this regard reference can be made to a case titled Safdar Hussain Shah V. Mst. Nisa Fatima (1992 CLC (AJK) 39). The relevant portion of the report at page 41 is as under:--

"When divorce is sought by `Khula' it is enjoined upon the Court to satisfy its judicial conscience that there was sufficient evidence to conclude that wife justifiably developed aversion against her husband and in such position, if separation by `Khula' was not pronounced, she would be subjected to a harsh life in the shape of an unwanted union or living all the time in separation. It is, therefore, expedient to resolve the controversy of `Khula' by resort to the evidence of the parties. Here, it is relevant to state that the circumstances constituting aversion of wife may vary from case to case but the substance of such circumstances must be enough to satisfy that there was a reasonable ground for developing aversion for wife against her husband."

It has been opined in case titled Mst. Khurshid Bibi V. Baboo Muhammad Amin (PLD 1967 SC 79) that the wife is entitled to `Khula' as of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union.

The same view was followed in the case of Mukhtar Ahmad V. Mst. Um-e-Kalsoom & another (PLD 1975 Lahore 805). It was held that "where the parties did not resolve their differences throughout protracted litigation despite efforts made by the Courts, grant of decree for dissolution of marriage through `Khula' was justified."

It was observed in the case reported as Mst. Naqeeba Begum V. Abdul Khaliq (2002 SCR 218) "it may be stated that this is well settled principle of Shariah that a decree on basis of `Khula' can be passed if the Court comes to the conclusion that it was no more possible for the spouses to live together within the limits ordained by God. Obviously, the question as to whether the spouses could live within the limits ordained by God or not, is a question of fact which depends upon the circumstances of each case. It is not necessary that the marriage can only be dissolved on the basis of `Khula' if there exist a deep rooted hatred between husband and wife rather the same can be dissolved on the basis of variety of circumstances which satisfy the Court that it is not possible for the spouses to live as husband and wife as is ordained by God."

The aforementioned principle was also followed in the case titled Zohra Bibi V. Muhammad Saleem & others and Jamila Bibi V. Abdur Rasheed & 3 others (2005 SCR 82). The relevant portion of the judgment at page 85 appears as under:--

"It is really very sad and pity that wedlock between the spouses should be broken for long matrimonial life but when going get toughs, the toughs get going. In view of the unequivocal statement of the appellant that she cannot live with husband at any cost and if she developed severe hatred against him, they definitely cannot live within the limits ordained by Almighty God. If their relationship, love and affection could not be developed in so many years there appears no chance of happy married life and if they are forced to live there is another apprehension of their breaking the limits ordained by Almighty God. Matrimonial relations are based on trust, love, affection, goodwill and sacrifice for each other, if looked, it is forced union not spousism.

It was further observed at page 86 of the report in the following manner:--

"The principle of `Khula' is based on the fact that if a woman has decided not to live with her husband for any reason and there is no chance of reconciliation or her reiterating from that position then it is left to the conscience of the Court to dissolve the marriage through `Khula' and in case of non-dissolution under such circumstances the spouses cannot live within the bounds ordained by Almighty Allah. Hence, dissolution of marriage on the basis of `Khula' must be ordered in the given background of the parties who have resorted to the litigation which is further creating bitterness and in spite of the efforts by the elders, there is no chance of reconciliation between them. Even if decree for restitution of conjugal rights is allowed to remain intact, which is otherwise inexecutable, it will serve no purpose except that wife cannot seek a new life partner and inhuman."

I cannot subscribe to the view of the learned Counsel for the appellant that Respondent No. 1 has not returned the golden ornaments and other articles of the appellant. Suffice to note that the appellant has miserably failed to prove that whether he has given any golden ornaments to Respondent No. 1 or any other articles of the appellant are in her possession. The appellant has admitted in his cross-examination that he could not produce any solid proof about the purchase of articles and he prepaid the list and receipts at his own.

There is no cavil with the authority cited by the learned Counsel for the appellant (1992 SCR 62) that the husband is entitled to demand all the articles and things which he gives to the wife in the form of dower or otherwise but, as stated earlier, in the instant case the appellant miserably failed to prove as to whether he had given any jewelry, gift or other things to his wife and the learned Court below has also fixed the consideration of `Khula', the dower received by the wife at the time of marriage ceremony.

In such state of affairs, the impugned decision does not suffer from any glaring defect or legal infirmity and the dower money is an appropriate consideration for grant of `Khula'.

The crux of proposition is that finding no force, the appeal is dismissed.

(W.I.B.)    Appeal dismissed.

------------------------

Khula is Islamic Right of a wife

PLJ 2011 Lahore 501

Present: Rauf Ahmad Sheikh, J.

ABDUL HAMEED--Petitioner

versus

Mst. RUBINA BIBI and 2 others--Respondents

W.P. No. 3230 of 2009, heard on 7.7.2010.

Punjab Family Court Act, 1964 (XXXV of 1964)--

----S. 10(4)--Suit for dissolution of marriage on the principle of khula, decreed on failure of pre-trial reconciliation proceedings subject to return of dower received by her--Earlier such a suit was withdrawn due to compromise--Subsequent suit--Maintainability--Held: Withdrawal of earlier suit due to compromise was no bar on the institution of the subsequent suit as the hatred and other contentions made in the plaint gave rise to the fresh cause of action--Provisions of Order XXIII, Rule 1(3), CPC are not applicable on the proceedings under the Family Courts Act and as such the subsequent suit was not barred by any provisions of law and was maintainable.  [P. 503] A & B

Punjab Family Court Act, 1964 (XXXV of 1964)--

----S. 10(4)--Barred by provision of law--Applicability--Question, whether the proviso to Section 10(4) of the Family Courts Act, 1964, is against the injunctions of Islam--Held: The Holy Quran in verse No. 229 of Surah Al-Baqarah provides basis and legality of Khula--To keep the husband and wife in a hateful and unwanted union leads to many social evils--If the spouses cannot live amicably and in complete harmony and the wife categorically asserts that she wants divorce then the Court may safely presume that they cannot live within the limits of God--Petition was dismissed.        [P. 504] C

Rana Muhammad Sarwar, Advocate for Petitioner

Mr. Fiza Ullah, Advocate for Respondent No. 1/Plaintiff in person.

Date of hearing: 7.7.2010.

Judgment

The petitioner has challenged the orders dated 27.6.2008 & 5.9.2008 and judgment and decree dated 27.9.2008 passed by learned Judge Family Court, Faisalabad, and also the Proviso to sub-section (4) of Section 10 of the Family Courts Act, 1964 as amended through Ordinance No. LV of 2002, contending that the same are ridiculous, absurd, ultra vires of the Constitution, violative of the fundamental rights and against the Injunctions of the Holy Quran and Sunnah and as such the same are void, ineffective and non-existent in the eyes of law.

2.  The Respondent No. 1/plaintiff filed a suit for dissolution of marriage on principle of Khula, recovery of articles of dowry and recovery of maintenance. The suit was contested by the defendant/petitioner. The learned trial Court on failure of pre-trial reconciliation proceedings passed the decree for dissolution of marriage on principle ofKhula on return of the dower received by her and framed the issues regarding other material propositions of fact and law. During the proceedings, the petitioner/defendant had moved an application for dismissal of the suit on the ground that the same was not maintainable in view of the withdrawal of earlier suit due to compromise, which was dismissed vide order dated 27.6.2008 and another miscellaneous application seeking decision on the remaining contents of the said application, which was also dismissed on 5.9.2008. Finally the decree for dissolution of marriage was passed on 27.9.2008.

3.  It is contended that Respondent No. 1 had earlier filed a suit for the dissolution of marriage and recovery of articles of dowry, which was dismissed as withdrawn due to compromise because the parties had joined hands and started living together so the subsequent suit for the same relief was not maintainable. It is also contended that the learned trial Court did not make a concrete effort to patch up the matter and failed to afford an opportunity to effect compromise and has thus failed to act in accordance with the spirit of law. It has been urged that Proviso to Section 10(4) of the Family Courts Act, 1964, is against the Injunctions of Islam as without recording the evidence regarding contention of the wife that she cannot live within the limits of God, the marriage cannot be dissolved. It is also urged that this provision has given the wives undue advantage and the husbands are being deprived of fundamental right of fair trial under due process of law. It is also contended that the insertion of the Proviso to Section 10(4) of the Family Courts Act, 1964, is absurd as the scheme of the Family Courts Act regarding recording of evidence and post-trial re-conciliation have become meaningless. It is also contended that this provision is against the Injunctions of the Holy Quran so could have not been enacted in view of the Enforcement of Shari'ah Act, 1991 (Act No. X of 1991). It is further contended that the suit was not properly instituted as the Plaintiff/Respondent No. 1 had not put her signatures on the plaint.

4.  The learned counsel for the petitioner has vehemently reiterated the above contentions. The learned counsel for the Respondent No. 1 has contended that Respondent No. 1 did join hands with the petitioner in good faith after withdrawal of the earlier suit but he did not mend his ways and as such she was forced to file the fresh suit. It is urged that in spite of the decree passed on 27.9.2008 her fate is hanging in the smoke of uncertainty. The Respondent No. 1 has stated that she herself filed the suit and had categorically stated before the learned trial Court that she did not want to live with the petitioner due to aversion and hatred. The learned counsel for the respondent has contended that no illegality was committed and that the contention regarding the legal provisions mentioned above is without force.

5.  The withdrawal of the earlier suit due to compromise was no bar on the institution of the subsequent suit as the hatred and other contentions made in the plaint gave rise to the fresh cause of action. She has specifically stated that even after compromise the defendant did not pay her maintenance and turned her out of the house after beating and abusing her so she had developed hatred and was not ready to live with him under any circumstance. The provisions of Order XXIII Rule 1(3) CPC are not applicable on the proceedings under the Family Courts Act and as such the subsequent suit was not barred by any provisions of law and was maintainable. The dismissal of miscellaneous applications vide orders dated 27.6.2008 and 5.9.2008, therefore, was not open to any exception.

6.  The main contention of the learned counsel for the petitioner is that sufficient opportunity was not given to the petitioner to make effort for reconciliation and the Court also did not take any effective step in this regard. The order dated 27.9.2008 shows that the Court gave them some time by effecting compromise and thereafter took up the file. The respondent/plaintiff categorically stated that she had developed extreme hatred and was not ready to live with him within the limits prescribed by Allah Almighty. Her insulting attitude towards the petitioner/defendant was also taken notice of by the learned trial Court. As she was adamant to get the decree for dissolution of marriage on principle of Khula and was not ready for effecting compromise, the Court passed the impugned judgment and decree.

7.  The contention of the learned counsel for the petitioner that insertion of the Proviso to Section 10(4) of the Family Courts Act has rendered the subsequent provisions meaningless is without force because the subsequent provisions are applicable on the trial of those suits only in which the proceedings are required to be recorded after the stage of reconciliation proceedings.

8.  The main contention of the learned counsel for the petitioner is that the Proviso to Section 10(4) of the Family Courts Act, 1964, is against the Injunctions of Islam and alsoviolative to the fundamental right as provided under Article 10-A of the Constitution of Pakistan, 1973. It is true that the right of fair trial is inalienable but the proceedings in accordance with law were conducted so the petitioner cannot claim that his right was infringed.

9.  The other contention raised by the learned counsel for the petitioner is that the passing of the decree on principle of Khula is against the Injunctions of Islam and Shari'ahso this amendment in the Act could have not been made in view of the Enforcement of Shari'ah Act, 1991. The Holy Quran in Verse No. 229 of Surah Al-Baqarah provides basis and legality of Khula. To keep the husband and wife in a hateful and unwanted union leads to many social evils. If the spouses cannot live amicably and in complete harmony and the wife categorically asserts that she wants divorce then the Court may safely presume that they cannot live within the limits of God. The contention of the learned counsel for the petitioner, therefore, is without force.

10.  It has then been contended that the suit was not properly instituted as the plaint did not bear the signatures of the Respondent No. 1/Plaintiff. The copy of the plaint available at pages 135 to 138 shows that it was signed by her. She had categorically stated before me that she had filed the suit so the contention is totally false. It is then contended that the Respondent No. 1 has not returned all benefits derived by her during marriage. The Respondent No. 1 was ordered to return the dower and if anything else was given to her as benefit of marriage, the petitioner should have claimed the same in the written statement and specifically  insisted  on  return of the same. As in the written statement, he has not specifically claimed return of any other alleged benefits of marriage, so implied waiver is attracted on his part.

11.  For the reasons supra, the writ petition is without merits and the same is hereby dismissed with costs.

(M.S.A.)           Petition dismissed.