Saturday, 25 January 2014

Writ Petition dismissed when filed with delay of 4 years

PLJ 2012 Lahore 133
[Multan Bench Multan]
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
MstAamna 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.  MstAamna 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) andMasooda 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 MstRahmat 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. MstSheeba 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 oflaches 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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