MUHAMMAD IJAZ AHMAD KHAN vs JUDGE FAMILY COURT and another
This constitutional petition challenged a decree for dissolution of marriage passed by the Family Court in favour of the respondent-wife. The petitioner-husband contended that the trial court failed to comply with the mandatory provisions of Section 10(4) of the West Pakistan Family Courts Act, 1964, specifically regarding the determination and restoration of Haq Mahr upon the dissolution of marriage via Khula. The core legal question was whether a Family Court, when granting a decree for dissolution of marriage on the basis of Khula, is legally obligated to address the restoration of Haq Mahr received by the wife. The Lahore High Court held that the trial court erred by failing to consider the proviso to Section 10(4) of the West Pakistan Family Courts Act, 1964, which mandates the restoration of Haq Mahr to the husband upon the dissolution of marriage. Consequently, while the decree for dissolution of marriage was upheld, the matter was remanded to the trial court to determine the specific amount of Haq Mahr received and to pass a decree in accordance with the statutory requirements.
- Is a Family Court required to restore Haq Mahr to the husband when granting a decree for dissolution of marriage on the basis of Khula?
- Does the proviso to Section 10(4) of the West Pakistan Family Courts Act, 1964, mandate the restoration of Haq Mahr upon the failure of reconciliation in a dissolution suit?
- Can a decree for dissolution of marriage be upheld while remanding the case specifically for the determination of financial benefits like Haq Mahr?
- Section 10(4), West Pakistan Family Courts Act, 1964
ORDER
' Mst. Samia Naz, respondent No.2 had filed a suit for grant of decree for dissolution of marriage in the Court of learned Senior Civil Judge/Judge Family Court. The suit was contested and was decreed in favour of the plaintiff on the basis of Khula on 16-6-2004. Defendant namely Ijaz Ahmad had challenged this decree on the basis of provisions of section 10(4) of West Pakistan Family Courts Act, 1964 by stating that according to that provision learned Judge Family Court was bound to grant Zar-e-Khula in case a decree was being passed in favour of the plaintiff. Learned counsel appearing on behalf of respondent has not been able to controvert this legal position.
2. After considering the arguments of both the learned counsel for the parties and perusal of the record, I have found that the decree dated 16-6-2004 was passed on the basis of Khula in favour of the plaintiff but the learned Judge Family Court did not take into consideration the newly-added proviso the section 10(4) of West Pakistan Family Courts Act, 1964 which reads as under: "Provided 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 shall also restore to the husband the Haq Mehr, received by the wife in consideration of marriage at the time of marriage."
3. The decree for dissolution of marriage having been passed in favour of Mst. Samia Naz is upheld and is not being disturbed but the case is remanded to the learned Judge Family Court concerned, to grant an opportunity of hearing to the parties, record the evidence and to determine as to how much Haq Mahr was received by wife in consideration of marriage at the time of marriage and as to whether the petitioner/ defendant was entitled to such benefits or not and to pass a decree strictly in accordance with law. The writ petition to that extent is accepted, with no order as to costs.
Cited by 7 cases
- Muhammad Arshad vs Judge Family Court, etc. 2014 C.L.R. 415
- MUHAMMAD ARSHAD vs JUDGE FAMILY COURT, KOT ADDU and anothers 2014 C.L.R. 415, 2014 YLR 1686
- Mst. Nomail Zia vs Adnan Riaz 2013 C.L.R. 1310
- Mst. NOMAIL ZIA vs ADNAN RIAZ 2014 CLC 87
- MST. NOMAIL ZIA-- vs ADNAN RIAZ 2015 NLR Civil 435
- MUDASSAR BUTT vs JUDGE FAMILY COURT, LAHORE and another 2010 CLC 1729
- Syed SAJID ABBAS ZAIDI vs ADDITIONAL DISTRICT JUDGE and others 2009 MLD 379