MUHAMMAD KALEEM ASIF Versus ADDITIONAL DISTRICT JUDGE

ZUBDA-TUL-HUSSAIN, J.--- The petitioner Muhammad Kaleem Asif and respondent No.3 Mst. Sajida Kanwal were married in the year 1999. Their matrimony continued for some time. Subsequently, however, differences occurred between the parties, which ultimately led the respondent to abandon her association with the petitioner. When she was living the deserted life, she filed a suit for maintenance allowance and in the same suit, joined the claim for the recovery of the dower amount of Rs.4,00,000. She also filed another suit for the dissolution of marriage on the ground that the attitude of the petitioner was cruel towards her and she could not pull on him as his wife.

2. The suit for dissolution of marriage was decreed by the learned Judge, Family Court through judgment and decree dated 25 4 2006, at pre-trial stage, under section 10(4) of the Family Courts Act, 1964, as respondent No.3 recorded a statement that the petitioner was an extremely cruel person and she could not maintain her matrimonial relationship with him. The relevant observations of the learned trial Court are reproduced hereunder, as the same would be relevant for the determination of the point at issue between the parties:--

" ..Keeping in view the statement of the plaintiff, the suit of the plaintiff for dissolution of marriage is hereby decreed under section 10, subsection (4) of the Muslim Family Laws. Deferred dower has been mentioned in Nikah Nama. It is proved from the Nikah Nama that dower has not yet been paid by the defendant to the plaintiff. Hence, no order to that effect can be passed. Matter between the parties pertaining to the Haq Mehr is pending through separate suit. Same cannot be decided in this suit. Accordingly, the suit of the plaintiff for dissolution of marriage is hereby decreed. Marriage between the parties is hereby dissolved."

3. The suit for maintenance allowance and recovery of dower amount was also decreed by the learned trial Court through judgment and decree dated 26.3-2008. The judgment and decree dated 25-4-2006, the dissolution of marriage was not challenged any where, but the judgment anti decree dated 20-3-2008 for the recovery of the maintenance allowance and the dower amount was challenged by the petitioner in appeal, which was dismissed by the learned Additional District Judge, Bahawalpur on 22-10-2008.

4. Through the instant writ petition, the petitioner has questioned the legality of the aforesaid judgments and decrees dated 25-4-2006 and 26-3-2008, passed by the learned Judge, Family Court, Bahawalpur and the appellate judgment and decree dated 22-10-2008, passed by the learned Additional District Judge, Bahawalpur.

5. The contentions raised, on behalf of the petitioner, are manifold. It has been argued that the claim for maintenance and dower could not be joined in one suit, because the suit for dissolution of marriage has been separately filed and by virtue of 2nd proviso of subsection (2) of section 7 of the West Pakistan Family Courts Act, 1964, a plaint for dissolution of marriage may contain all claims relating to the dower, maintenance, personal property and belonging of a wife, custody of the children and visitation rights of the parents of meeting their children, but where a suit was not filed for dissolution of marriage or the other causes were not joined in a suit for dissolution of marriage, the rest of the causes could not be joined in one suit.

6. It is also been argued that the suit for dissolution of marriage was decreed under section 10(4) of the West Pakistan Family Courts Act, 1964, which contemplates the dissolution of marriage on the basis of `Khula' and also enjoins upon the wife to restore the husband Haq Mehr received by her in consideration of marriage, at the time of marriage. The learned counsel has, thus, inferred that the suit for the recovery of dower could not be decreed in favour of respondent No.3. It has also been maintained that the rate of m aintenance allowance, granted by the learned trial Court, did not commensurate with the income and resources of the petitioner. Objection to the territorial jurisdiction has also been raised. In rebuttal to the maintenance claim, it has been asserted on behalf of the petitioner that only a simple Nikah was solemnized between the parties and they never lived together as husband and wife and as such, there could he no occasion for granting the maintenance to the respondent.

7. The objection that the claim for maintenance allowance and the dower could not be joined together independently of a suit for dissolution of marriage is totally misconceived and runs counter to the very spirit of the law on the point. It is in the interest of justice that claims for various causes of action, relating to the matrimony of the spouses, are allowed to be joined together. There is no doubt that the joinder is specifically mentioned with reference to the suit for dissolution of marriage, but where a suit for dissolution is not filed or it has separately been brought before the Court, there can be no bar in joining the rest of the causes in one suit.

8. The meanings and interpretations of a statute are to be attributed in a manner, which could advance the cause of the provisions. An interpretation which renders the provision futile, is liable to be ignored. The purpose of permitting the parties to join the various causes of matrimonial disputes in one suit is the advancement of the cause of convenience of the parties and the Courts, by avoiding multiplicity of the proceedings. Hence, it will simply be unreasonable and against the logic to say that causes of matrimonial disputes can be joined together only with a suit for dissolution of marriage, but in other matters, the parties shall have to face the rigors of multiplicity of litigation. In case, the joinder of the claims is not permitted without a suit for dissolution of marriage, it will render the whole legislation on this point, as useless, which can neither be the intention of law nor a proper and reasonable interpretation. This would rather frustrate the very purpose of the provision, instead of advancing its cause. The objection of the petitioner is, therefore, without any force.

9. The question of territorial jurisdiction and the quantum of maintenance as well as the period for which it was granted, is based upon facts and requires evidence to be recorded to prove the same. The concurrent findings of the learned Courts below cannot be interfered with in the present proceedings.

10. In fact. the real contest between the parties, in the present writ petition, is on the question as to whether the decree for dissolution of marriage under proviso to subsection (4) of section 10 could be passed without any order for restoration of Haq Mehr or other benefits received by the wife from the husband and in a case where Haq Mehr was not received by the wife, whether she could file a suit for its recovery after obtaining a decree on the basis of `Khula' in terms of proviso to subsection (4) of section 10 ibid. 'Khula', in fact, is a right available to a wife for dissolution of marriage in contradistinction to the right of divorce vesting in a husband. Where the disputes and differences, in the family life, arise because of an attitude of the wife not acceptable to the husband, the latter has the power to divorce her. The right of `Khula' accrues to a wife for the redressal of irreconcilable grievance against her husband.

11. Need to seek `Khula' can arise in two situations. First, the wife may be aggrieved of the unbecoming attitude of her husband and, secondly, she may, for her own personal reasons such as abhorrence of disliking for the husband, may claim `Khula'. In the history of Muslim Jurisprudence, the well reputed case of Habiba Bint-e-Sohail, seeking 'Khula' against her husband namely Sabit (may Allah be pleased with him), provides as guidance that in the case, where the disliking or hatred to the wife is not because of coercion, duress or other untoward behaviour of the husband, the wife may seek separation by the restoration of the dower/the benefits drawn by her from the husband, at the time of the marriage, but the in-depth analysis of the circumstances leads to infer that the case where the wife is constrained to seek divorce because of the obnoxious nature or behaviour of the husband, her position and rights are decipherable from the case of Habiba Bint-e-Sohail and she is not under a compulsion to compensate her husband in terms of the restoration of the benefits.

12. It has repeatedly been held by the superior Courts of this country that the powers of the Family Court, in relation to the consideration for dissolution of marriage, could not be curtailed and the Court could dissolve the marriage on the basis of `Khula' even without any compensation, when it is found that `Khula' was being claimed due to fault on the part of the husband. If an authority is needed, reference in this behalf can be made to the case of Khalid Mahmood v. Anees Bibi and 2 others (PLD 2007 Lahore 626) and Muhammad Zafar v. Judge, Family Court and another (2005 CLC 1844).

13. While passing a decree for dissolution of marriage, the learned trial Court had also recorded the statement of respondent No.3, wherein she had categorically alleged that the petitioner was an extremely cruel person and for that reason, she could not continue her matrimony with him. As the impugned order for dissolution of marriage dated 25-4-2006 was based on this statement, it can safely be inferred that the learned trial Court had passed the decree for dissolution of marriage, though on the basis of `Khula', but being well conscious of the fault on the part of the husband. It is also on record that Haq Mehr was not paid by the husband at the time of marriage. He had claimed that he paid the dower soon after the marriage, but his averments in this behalf are self contradictory. On the one hand, he claimed that he paid the dower after the marriage and on the other hand, he also asserted that the Rukhsati of respondent never took place after the solemnization of the Nikah. Thus, in a situation, where the learned trial Court found fault with the husband for not properly maintaining his wife and the deferred part of Haq Mehr had not been paid, it was justified to pass the decree on the basis of `Khula' even without the restoration of the benefits/Haq Mehr. The marriage was, of-course, dissolved prior to the decree for recovery of the dower amount and as already stated, the respondent was entitled to `Khula' without the restoration of the benefits of dower. There could, thus, be no legal bar to the maintainability of the suit for recovery of the dower and its decree by the Court. This view has also been fortified by the observations as recorded in the case of Khalid Mahmood (supra).

14. For what has been discussed above, I am of the considered opinion that the impugned judgments and decrees do not suffer from any illegality or material .irregularity warranting interference in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The writ petition is, therefore, dismissed with costs.

S.A.K./M-210/L Petition dismisse