KHADIM HUSSAIN SHAH Versus JUDGE FAMILY COURT, MULTAN

ORDER

Heard

This writ petition is filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to challenge the judgment and decree dated 20-6-1996 passed by Muhammad Irshad Sipra, learned Judge Family Court, Multan; whereby, suit for dissolution of marriage filed by Mst. Shidoo i.e. respondent No.2 against the petitioner Khadim Hussain Shah was decreed and the marriage between them was dissolved. In the same decree, the suit for restitution of conjugal rights instituted by the petitioner against respondent No.2 aforesaid was also dismissed.

2. Learned counsel for the petitioner has contended that the learned trial Judge has violated the provisions contained in section 12 of the Family Courts Act, 1964 whereby, the parties were to be summoned and an effort was to be made to effect a compromise or reconciliation between them. In this regard, it was alleged that the parties were not summoned at the conclusion of the trial to effect the compromise or reconciliation between them and as such, a mandatory provision of law having been violated, the judgment and decree of the learned Judge Family Court were void. Secondly, it was contended that the learned trial Judge did not strike the proper issues on the controversial points. In this regard, it was alleged that Issue No. l was framed as under:---

3. In this connection, learned counsel for the petitioner submitted that in paragraph No. 3 of the plaint, the following points were raised that:---

(a) the defendant treated the plaintiff with habitual cruelty;

(b) the defendant failed to perform conjugal rights with the plaintiff for three years;

(c) the defendant failed to maintain the plaintiff and her children for about three years;

(d) the defendant misappropriated the ornaments and clothes belonging to the plaintiff;

(e) the defendant mixed up with women of ill-repute and had illicit relations with them; and

(f) the plaintiff had developed severe hatred against the defendant and as such, it was not possible to maintain the limits of God nor she was in a position to live with him.

It was, therefore, urged that instead of framing separate issues, the learned trial Judge framed a single compound issue by stating that whether the plaintiff was entitled to a decree for dissolution of marriage on the grounds mentioned in paragraph No.3 of the plaint, and as such, the trial was allegedly vitiated because there were no proper issues before the Court.

4. I have taken into consideration the points raised above and find that the provisions of the Family Courts Act aimed at the expeditious settlement and disposal of the disputes relating to marriage and family affairs between the parties. The strict procedural provisions contained in the Civil Procedure Code and the Evidence Act were dispensed with under the Act to achieve the purpose of expeditious disposal of the matters. In fact the rigidity and the technicalities of law were relaxed so that substantial justice may be provided to the parties instead of technical and conventional justice.

5. In the instant case, although the learned trial Judge Family Court should have framed distinct issues on each point of controversy given in paragraph No.3 of the plaint instead of constituting of compound issue, but it is to be seen if the parties have been prejudiced during the proceedings on account of compound issue. If it is proved that they had been prejudiced and that the ends of justice have been defeated, a case for interference on the writ jurisdiction might be made out. In case no prejudice is caused to any of the parties then there will be no case of interference. In the instant case, the parties had full opportunity to lead evidence on all the controversial points. The plaintiff while appearing as P. W.1 had stated that she was deserted about four years back and that while she was living with her husband i.e. petitioner/defendant, she was maltreated and given physical beating. She was not maintained after her desertion as she was turned out only in three clothes after severe beating. She also added that she tried hard to live with the petitioner/defendant but it was all in vain as the latter had no intention to keep her in the house. The defendant was also blamed for having bad character being given to intoxicants. She added that she had developed extreme hatred against the defendant/petitioner and as such, it was not possible for her to live with him. She also stated that she was eking out her livelihood by stitching the clothes for others. The defendant has allegedly misappropriated her ornaments and clothes. The trend of cross-examination makes it clear that the allegations against the defendant/petitioner made by the plaintiff/respondent were strangely put to her, which she reiterated while under cross-examination. She added that the defendant/petitioner had illicit liaison with women of ill-repute and was also addicted to ' Bhang' and opium. He allegedly used to prepare the intoxicant of ' Bhang' by pounding it in the house. These answers were enlisted to the questions during cross-examination which further shows that the allegations were not devoid of force. The plaintiff/respondent was also supported by P.W.2 namely Ghulam Asghar Shah. Though P.W.2 is the real cousin of the plaintiff yet this being a family matter, he is likely to know better than a stranger to the family. Hence his mere relationship with the plaintiff would not discard his evidence particularly when he has no enmity or interest adverse to the petitioner/defendant. In rebuttal, the petitioner/defendant appeared as D. W.1. Though he denied the above allegations yet admitted that the plaintiff had lived with him for four or five years after the marriage which took place about eight or nine years back. In that way, it becomes clear that the plaintiff was deserted about four years back as claimed by her. The solitary statement of the defendant cannot upset the evidence of the plaintiff in the above situation, particularly when nobody was examined to support his testimony.

6. It follows from the above that a compound issue was framed but it did not prejudice the trial because requisite was brought on record and discussed by the learned trial Court and has been analysed above, Likewise, there is no substance in the allegation that the provisions contained in section 12 of the Family Courts Act were violated thereby rendering the impugned judgment and decree as void. In this respect, it may be pointed out that first attempt for reconciliation was made by the trial Court on 15-5-1995 before striking off the issues. That effort had been unsuccessful. After the conclusion of trial, learned counsel for the parties stated before the Court on 23-5-1996 that reconciliation between the parties was not possible and as such, the case was fixed for arguments. This shows that since the learned counsel for the parties had instructions that the conciliation between the parties was not possible, therefore, just to call the parties in the Court in order to inquire from them whether conciliation was possible or not would have been only a technical compliance without having any fruitful outcome. In fact any such attempt would have been an exercise in futility. As such, it cannot be said that the trial Court did not try for conciliation as required by section 12 of the Family Courts Act, 1964.

7. In view of any above discussion, I do not find any ground for interference with the impugned judgment and decree in the extraordinary writ jurisdiction of this Court. The petition is accordingly dismissed in limine.

CIVIL MISCELLANEOUS NO. 1 OF 1996:

8. With the dismissal of the main petition vide my order of even date, this petition is also dismissed.

A.A./K-22/L Petition dismissed.