Saturday, 19 May 2012

Divorce Happens even when legal requirements are not met properly

PLJ 2011 Lahore 253
[Rawalpindi Bench Rawalpindi]

Present: Muhammad Muzammal Khan, J.

MUHAMMAD AKBAR SHEIKH--Petitioner

versus

ABDUL REHMAN KHAN, LEARNED ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 3 others--Respondents

W.P. No. 40 of 2005, decided on 24.10.2007.

Muslim Family Law Ordinance, 1961 (VIII of 1961)--

----S. 7--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Divorced without giving notice of divorce to chairman union council--Recovery of maintenance allowance/dower--Suit for recovery of maintenance allowance and dower amount against the petitioner who was employed in Germany--Family Court awarding maintenance allowance at the rate of Rs. 5,000/- per month for her iddat period and for minor child @ of Rs. 3,000/- per month till his custody--Entitled to get maintenance allowance was maintained and appeal filed by petitioner was dismissed--Challenge to--Validity--Amount of maintenance allowance awarded was not excessive or exorbitant in the age of inflation/dearness--In light of admission in the written statement, evidence on the file and submissions made at Bar, it transpired that controversy was correctly put to rest by both the Courts, without committing any error of law--Held: No case for interference in constitutional jurisdiction of High Court was made out--Petition was dismissed.          [P. 256] A & B

Mr. Azhar Hussain Malik, Advocate for Petitioner.

Ms. Yasmin Khan, Advocate for Respondents.

Date of hearing: 24.10.2007.

Judgment

Instant constitutional petition assailed the judgments/orders dated 3.1.2004 and 6.11.2004 passed by the learned Judge Family Court and the learned Additional District Judge Rawalpindi, to be declared illegal, void and of no legal consequence, whereby suit filed by Respondents No. 3 aud 4 for recovery of maintenance allowance/dower was decreed and petitioner's appeal was dismissed, respectively.

2.  Succinctly, relevant facts are that Mst. Saleema Akbar Respondent No. 3 was married with the petitioner according to Muslim rites on 10.1.1996 against a dower of Rs.5,000/- through a registered Nikah Nama. Respondent No.3 performed her marital obligations but relations between the spouses did not remain cordial, leading to desertion. This wedlock gave birth to a child who was named as Muhammad Faizan and was in the custody of Respondent No.3. Respondents No. 3 and 4 filed a suit for recovery of maintenance allowance and dower amount against the petitioner who was employed in Germany, with the averments that petitioner after living with Respondent No. 3 in Pakistan did not establish contact with her after leaving for Germany. She further asserted that petitioner was already married in Germany and had off shoots from his first marriage but this fact was concealed at the time of marriage with her. She also pleaded that Respondents No.3 and 4 were not being provided maintenance allowance by the petitioner, necessitating filing of suit.

3.  Petitioner being defendant in the suit, contested the same by filing his written statement wherein he pleaded that Respondent No. 3 was divorced in March 2000 in accordance with "Shariat-e-Muhammadi" hence she was not entitled to any maintenance. Petitioner also asserted that he is a disabled person and is pulling his life by living hand to mouth in Germany on subsistence allowance of his two children and wife. Controversial pleadings of the parties necessitated training of issues and recording of evidence. The learned Family Judge seized of the suit after doing the needful, decreed the suit of Respondents No. 3 and 4 vide his judgment/decree dated 3.1.2004, awarding Respondent No. 3 maintenance allowance at the rate of Rs.5,000/- per month for her "Iddat Period" and for Respondent No. 4 at the rate of Rs.3,000/- per month from October 1997 till his custody remains with Respondent No. 3. Adjustment of interim maintenance already paid by the petitioner was also allowed.

4.  Both the parties were not satisfied with the decision of the learned Judge Family Court and consequently filed their distinct appeals before the learned Additional District Judge where appeal of Respondent No. 3 was accepted and she was held entitled to get maintenance allowance at the rate of Rs.5,000/- per month from October, 1997 to June, 2000 including her Iddat Period and appeal filed by the petitioner was dismissed, through a consolidated judgment dated 6.11.2004. Petitioner, thereafter, filed instant constitutional petition for the relief noted above. Respondent No.3 in response to notice by this Court, has appeared and was represented through his counsel.

5.  I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioner had admitted in his written statement that he divorced Respondent No. 3 in March 2000 in accordance with "Shariat-e-Muhammadi" without giving notice of divorce to the Chairman Union Council concerned, in terms of Section 7 of the Muslims Family Law Ordinance, 1961 and the dower amount fixed in the Nikah Nama. He also admitted that dowry articles were given to Respondent No 3 at the time of marriage which according to him, were lying in his house and expressed his willingness to return the same. Besides it, Respondent No. 3 had proved that petitioner is living in Germany and has good financial position, as he owned considerable landed property in Pakistan. Respondent No. 3 appeared as her own witness (PW.1) and rendered substantial support to her claim set-forth in her plaint. She was subjected to lengthy cross-examination but veracity of her statement could not be shattered. She produced medical bills/receipts (Ex. P.1 to Ex. P. 30), copy of Nikah Nama (Ex.P. 31) and medical prescriptions (Ex.P.32 to Ex.P.36) in evidence.

6.  Petitioner in rebuttal of evidence of Respondent No. 3, examined his attorney Sh. Muhammad Sohaib, Special Attorney as DW.1 who deposed that petitioner is living in Germany where he is married. According to the statement of DW.1 petitioner divorced Respondent No.3 on 10.3.2000, aud that petitioner is sick hence is getting unemployment allowance from the Social Security Department of Germany. He denied suggestions of Respondent No. 3 that petitioner is doing business of Garments and is earning 4000/- Marks per month but at the same time, he did not specify earnings of the petitioner or the amount of unemployment allowance being paid to him by the Government  of   Germany.   Social   Welfare   Certificate   (Ex.D.4)   was produced on behalf of the petitioner showing that he was disbursed 2,39,928/- Marks till January, 1999 which if controverted into Pak. Rupee, becomes considerable amount, justifying the impugned judgment/decree concurrently passed by Respondents No. 1 and 2. Even otherwise, the amount of maintenance allowance awarded is not excessive or exorbitant in this age of inflation/dearness. In light of the admission in the written statement; evidence on the file and submissions made at the Bar, it transpired that controversy was correctly put to rest by both the Courts, without committing any error of law/facts.

7.  For the reasons noted above, no case for interference in constitutional jurisdiction, of this Court was made out. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit, is dismissed with no order as to costs.

(R.A.)  Petition dismissed.


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