SHAH HUSSAIN Versus Mst. NADIA KHAN

MOHAMMAD IBRAHIM KHAN, J.--- Where there are prayers (Alif) suit for dissolution of marriage on account of maltreatment, cruelty and contracting of second marriage (Bay) recovery of dower 13-1/2 tolas golden ornaments, (Jim) recovery of household dowry articles price of which is amounting to Rs. 4,32,000/- and (Dal) recovery of maintenance allowance @ Rs. 10,000/- per month for the last 5 months till completion of Iddat period, the suit was filed by Mst. Nadia against her husband Shah Hussain.

2. That Nikah of Mst. Nadia with Shah Hussain took place on 1st September 2013 while the marriage was solemnized in October 2014. During the subsistence of this marriage her husband Shah Hussain married another woman, she being maltreated with utmost cruelty it came to a climax of developed hatred, she has come to the status to permanently separate herself and to break her wedlock as no more ready to live with her husband within the limits prescribed by the Allah Almighty and thus seeking dissolution of her marriage. She being entitled to the dowry articles, past maintenance and dower in the shape of golden ornaments, so a decree has been prayed for accordingly.

3. Shah Hussain, the husband of Mst. Nadia has controverted her claim by filing written statement raising various legal and factual grounds. The learned Family Court was pleased to frame the following issues out of the divergent pleadings of the parties which are:--

4. Mst. Nadia appeared as PW-1 earlier filed affidavit supported by PW-2 Farman Ali who has also submitted affidavit in shape of Ex. PW-2/1, Muhammad Iqbal appeared as PW-3, his affidavit is placed on record as Ex. PW-3/1. On the other hand, Shah Hussain appeared as DW-1 who has categorically admitted to have remained in the wedlock with further disclosure that his wife is Mst. Nadia and he is still insisted to keep her as his wife as he has a lot of love and respect for her. He further said like that he has contracted second marriage on his wife instance and she was consenting party in respect of his second marriage. He lastly requested for dismissal of the suit of Mst. Nadia and prayed for decree of conjugal rights in his favour. DW-1 Shah Hussain is supported by Aftab, who recorded his statement as DW-2, who has narrated facts regarding the contract of marriage in between the parties.

5. After closure of evidence of the either part by way of Suit No. 30/FC of the year 2015, the learned Family Judge was pleased to announce its verdict in a way burden of proof of the issue No. 2 was placed on Shah Hussain, who could not discharge it positively, thus this issue was decided in negative, issues Nos. 3 and 4 are of much significance, whereas the findings would speak off that out of 15 tolas golden ornaments only 1-1/2 tolas golden ornaments were delivered to Mst. Nadia and the rest 13-1/2 tolas golden ornaments are still outstanding against Shah Hussain. Under the findings on issue No. 5 which is also of paramount importance and on the basis of detailed version though there developed strained relations between the parties. Wife grown hatred towards her husband and it was to the extent that once Mst. Nadia advanced depression who committed suicidal attempt by taking pills and stabbed herself by causing injuries on her person. Then the situation further aggravated and even Mst. Nadia refused herself for maintaining the husband and wife relationship. The cruelty is not supported by some medical evidence or police report. The Dissolution of Muslim Marriages Act, 1939 and Muslim Family Laws Ordinance, 1961 are not applicable to this area, therefore on the basis second marriage decree for dissolution cannot be granted. Hence it vas thought for that the relationship between the parties reached to an extent that the marriage was dissolved on the basis of Khulla and in the event thereof it was directed that the golden ornaments weighing 2-1/2 tolas are still lying with the Respondent/Plaintiff, the same be returned to the Petitioner, while rest of 13-1/2 tolas golden ornaments were to be waived off as she had never been given this extent of golden ornaments. On issue No. 6, the learned Judge Family Court while delivering its findings has entitled Mst. Nadia to dowry articles on basis of list (Ex. PW-1/3) being furnished from serial Nos. 1 to 36 and 39 amounting, to Rs. 3,82,000/- while to the extent of rest of the articles under serial Nos. 37 and 38 she has not been held entitled to its return. Under issue No. 7 Mst. Nadia was not entitled to any maintenance as she being unable to perform her conjugal rights, however maintenance allowance for an amount of Rs.2,000/- was fixed till expiry of the period of Iddat. On issues Nos. 9, 8 and 1, the learned Judge Family Court was further pleased having the cause of action to the extent of findings in the already discussed issues, Mst. Nadia was neither entitled to previous maintenance and for the recovery of Haq Mehr and then on the ground of dismissal of marriage on account of cruelty disentitled her to such decrees. While relief would lean to the extent of decree for dissolution on account of Khulla in lieu whereof she has to return 1-1/2 tolas golden ornaments to the Defendant/ Petitioner while the remaining 13-1/2 tolas golden ornaments were waived off being not received by the Respondent No.1 (hereinbefore called as Plaintiff). Maintenance allowance of Rs. 2000/- per month till completion of Iddat period and dowry article as per list Ex. PW-1/3 amounting to Rs. 3,82,000/- however the suit for conjugal rights was dismissed leaving the patties to bear their own costs.

6. Next the matter was taken up before the Court of learned Additional District Judge/Izafi Zila Qazi Matta Swat through Family Appeal No. 9/FCA of the year 2016 titled as "Shah Hussain v. Mst. Nadia Khan" and Family Appeal No. 10/FCA of the year 2016 titled as "Mst. Nadia Khan v. Shah Hussain". Both the appeals were consolidated for delivery of its findings and the final verdict has come up in a way that the findings under Appeal No 9/FCA were maintained to the extent of findings of learned Judge Family Court while Appeal No. 10/FCA was dismissed.

7. Mst. Saweera was directed to seek her recovery of 2 tolas golden ornaments and to this extent findings of the learned Judge Family Court were modified and the appeal bearing No.9/FCA was decided accordingly. An amount of Rs. 3,93,000/- was decreed in respect on dowry articles in favour of Respondent No. 1. In such terms both the appeals were decided. Mst. Nadia filed execution proceedings bearing No. 51/10 instituted on 26.9.2016 and by the order dated 23.12.2016 in satisfaction of the decree-holder and recording statement of the judgment-debtor himself, Mohammad Ileyas Bailiff was given task and all the dowry articles were handed over to the decree-holder and there was no need to further proceed with the execution proceedings so it was consigned to Record Room. Whereas Shah Hussain is still optimistic for the grant of decree of conjugal rights as well as to be entitled to 13-1/2 tolas widen ornaments as the decree was granted on account of Khula, these claims be restored to him has preferred this W.P. No. 621-M of 2016 with C.M. No.947-M/2016, wherein the following prayer is set in:--

"Therefore, it is humbly prayed before this honourable Court to accept this writ petition and may kindly be set aside the orders of the lower Courts and be dismissed the plaint of the Respondent No. 1 as prayed for. Any relief if any may kindly be also granted in favour of the Petitioner."

8. Having heard arguments of learned counsel for the parties, record, with their valuable assistance gone through.

9. While developing arguments of the learned counsel for the parties, there is only one controversy left behind between the parties as to whether 13-1/2 tolas golden ornaments if delivered to Mst. Nadia are to be restored to her previous husband Shah Hussain or else she has received 1-1/2 tolas and that too is returnable, even the condition set with the grant of Khula in favour of Mst. Nadia against Shah Hussain. Whether under the prayer in this writ petition the same can be taken up for favour then the limitation and keeping in view the other aspects formulated upon the evidence led by the parties. It is absolutely a gospel principle for dissolution of marriage effected through Khula is neither revocable nor appealable and only decision regarding dower is appealable. It is as attached condition that the grant of Khula in this case it was at best thought for to file writ petition by the said Shah Hussain, but should have never filed his Family Court appeal bearing No.10/FCA before the learned appellate Court as during subsistence of the appeal before the said learned Court when the Suit No.30/3 FC was decided on 09.02.2016 the appeal being preferred on 26.02.2016, its decision is followed on 31.8.2016 meaning thereby that sufficient loss of time occurrence for more than 6 months and 20 days have been over elapsed. This writ petition is hit by the doctrine of "Laches" as Shah Hussain or his counsel must be vigilant that the Family Appeal bearing No.10/FCA was not competent in its present form which course has now been adopted after lapse of time. In this respect, reliance is placed on the case-law cited as 2011 CLC 1839 (Multan Bench Multan) "Mst. Aamna Abdullah v. Judge Family Court, Maltan and others" wherein it observed as under:-

"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 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.

The most important determination is the question that when the petition is hit by doctrine of "Laches", the effect would be that when the High Court on finding constitutional petition to be barred by laches, would not be required to decide on merits the issue raised therein. In this regard reliance is placed on 2012 SCMR 1004 "Muhammad Din v. Abdul Ghani and another".

10. By the term Khula it means to extract one thing from another and it is always in exchange of financial settlement on behalf of the wife after seeking divorce from her husband. Even otherwise, under Dissolution of Marriages Act, 1939 even at the instance of such wife she can bring her suit and has to approach the Court and because of her request she is entitled to divorce.

11. In the case in hand wife has already stated that she is entitled to 13-1/2 tolas golden ornaments which under the evidence by examining herself and in her support Farman Ali have categorically stated that she has never received such golden ornaments from Shah Hussain. It is for the husband and proof casted upon him to prove the payment of amount of dower or golden ornaments to have handed over to his wife. In this regard reliance is placed on 2014 CLC 15 (Peshawar) "Abdul Sattar v. Mst. Shagufta Banu and 2 others". The relevant citation (c) is reproduced as under:---

(c) Muslim Family Laws Ordinance (VIII of 1961)--

S.6(5)(a)---Payment of dower amount---Burden of proof---Petitioner-defendant (husband) claimed that he had paid full dower and nothing was against him. Burden to prove payment of amount of dower was on the husband.

This burden has never been discharged by him leaving room for acceptance of the claim of his separated spouse to be believed for her given statement to its entirety.

12. In all probabilities, this petition has got no force which is hereby dismissed along with C.M.

MQ/63/P Petition dismissed.