MUHAMMAD BASHIR Versus ZUBAIDA BEGUM

ORDER

MUHAMMAD MUZAMMAL KHAN, J.--- Instant constitutional petition prayed judgment/decree, dated 26-9-2005 passed by the learned Judge, Family Court (respondent No.2) to be declared illegal, void and of no legal consequence, whereby suit for dissolution of marriage filed by respondent No. 1 was decreed.

2. Precisely, relevant facts are that respondent No.1 was married with the petitioner on 19-5-1978, according to Muslim rites through a registered Nikahnama. Relations between the spouses did not remain cordial and ultimately resulted in separation. Respondent No.1 during her desertion filed a suit for dissolution of her marriage with the allegations, inter alia, that petitioner had been treating her with habitual cruelty and had been attributing to her unfounded allegations of immorality. She also prayed a decree for dissolution of marriage on the basis of "Khula" in lieu of her unpaid dower of Rs.32.62.

3. Petitioner being defendant in the suit, contested the same by filing his written statement wherein he refuted the allegations of respondent No.1. The written statement was filed by the petitioner on 14-9-2005 and case was adjourned to 21-9-2005 for pre-trial reconciliation proceedings. Case was not taken up on 21-9-2005 and instead it was taken up on 22-9-2005 when counsel for respondent No.1 only appeared and accordingly notice Pervi was directed to be issued to the learned counsel representing the petitioner/defendant for 26-9-2005. On this adjourned date, learned Judge, Family Court, cognizant of the suit, without noticing service or non-service of the learned counsel representing the petitioner/defendant, recorded statement of respondent No.1 and in later part of the day, decreed her suit on the basis of "Khula" in lieu of Rs.100. Decree, dated 26-9-2005 was granted to respondent No.1 by invoking provisions of section 10(4) on the Family Courts Act, 1964. Petitioner being aggrieved of the judgment/decree dated 26-9-2005 filed instant constitutional petition, with the relief noted above. Respondent No.1 in response to notice by this Court, appeared and was represented through her counsel.

4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, after filing of written statement by the petitioner on 14-9-2005 case was adjourned to 21-9-2005 for pre-trial reconciliation proceedings but the same was not taken up for hearing on the said date. Case though appeared to have taken up on 22-9-2005 but the date written by the learned Judge, Family Court on the interim order, is interpolated. Explanation by the learned counsel for the respondent was that on 21-9-2005 the file was misplaced and was put up before the Presiding Officer on the next day but no such fact has been mentioned in any of the interim orders on the file. Learned Judge Family Court on 22-9-2005 directed a Notice Pervi to the learned counsel for the defendant/petitioner but there is no proof that his service was really effected, enabling the petitioner to make appearance on 26-9-2005. Impugned proceedings also revealed that in spite of absence of the petitioner, he was not proceeded against ex parse.

5. Under section 10 of the Family Courts Act, 1964, after filing of written statement, the Judge, Family Court was obliged to fix an early date for pre-trial hearing when the parties were to be examined, besides examination of narrations in the plaint/documents produced by the parties, by virtue of subsections (3) and (4) of section 10 of the Act (ibid). In case of failure of compromise/reconciliation between the parties. Court was to frame issues in the suit and to fix the same for recording of evidence but being oblivious of this procedure, statement of respondent No.1 was recorded in absence of the petitioner/defendant. It is clear from the record that no pre-trial hearing was done and at the same time, no effort for reconciliation was made. Respondent No.2 absolutely noted that parties married to each other on 19-5-1978 i.e., about three decades ago and he out of his stroke of pen dissolved the relations inter parties and that too, without following the law. Scan of record and impugned judgment/decree revealed that respondent No.1 was awarded decree for dissolution of marriage in an illegal exercise and unwarranted haste, at the back of the petitioner/defendant.

6. For the reasons noted above, impugned judgment/decree is not lawful and is accordingly not sustainable, thus, by accepting the instant petition, the same is declared to be void and non-existent in the eye of law, with the result that suit of respondent No.1 shall be deemed to be pending before the learned Judge Family Court for its fresh decision in accordance with law. Parties are directed to appear before the learned Judge, Family Court, Sialkot on 22-1-2007. There will be no order as to costs.

S.A.K./M-741/L Petition accepted.