Saturday, 12 July 2014

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on failure of pre-trial reconciliation proceedings subject to return of dower received by her--Earlier such a suit was withdrawn due to compromise--Subsequent suit--Maintainability--Held: Withdrawal of earlier suit due to compromise was no bar on the institution of the subsequent suit as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.


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