ALLAH BAKHSH vs Mst. SHAMSHAD ZOHRA And Other

ORDER

1. SHAFIUR RAHMAN, J.-- The petitioner, a husband, seeks leave to appeal against the judgment of the Lahore High Court, dated 4-6-1984 whereby a Family Court matter was remanded for decision afresh.

2. The petitioner sought restitution of conjugal rights. The respondent wife sought dissolution of marriage. The Family Court dismissed the wife's suit, and decreed that of the husband. The filed only one appeal questioning the judgment common to both the causes. The Appellate Authority dismissed the appeal on merits as well as for the reason that only one appeal was filed and not to.

3. The High Court in allowing the Constitutional Petition and remanding the case held that the to Courts dealing with the matter had misdirected themselves, as enumerated-hereunder, in exercising the jurisdiction possessed by them:- "(i) Dissolution by Khula was considered not justified as the "wife has got married once to often".

4. After examining the background of this marriages it was held "Khula cannot be refused on these grounds.

(ii) There was material on the record which was ignored by both the Courts.

5. (i.e) In coming to the conclusion that the marriage of the respondent No.1 was not irregular the to Courts did not advert to certain sources pointed out by the learned Judge."

6. The learned counsel for the petitioner contended, inter alia that the defect in appeal noted and given effect to by the first appellate Court was not even noted and the remand to the trial Court was ordered on the assumption that the appeal was competently filed. The learned counsel also wanted to demonstrate that the marriage of respondent No.1 with the petitioner was riot at all irregular.

7. This being a case of remand to the Family Court, we do not consider it necessary to go into the merits of the case. For the purposes of allaying the apprehensions of the petitioner we may observe that even on the question of the marriage being irregular the trial Court shall be free to record its own finding afresh but only after adverting, among others, to the sources indicated in the impugned judgment. As provisions of C.P.C. Other than sections 10 and 11 are inapplicable to the proceedings the technical objection of filing of a single appeal against a consolidated judgment when it was manifestly directed against the decision in both, would not stand in the way of adjudication in accordance with law.

8. We do not consider it a fit case for leave to appeal. The petition is dismissed.