DILSHAD vs Mst. MUSARAT NAZIR and another
This matter arises from a petition for leave to appeal filed by a former husband against the affirmation of the dissolution of marriage on the ground of Khula` through writ jurisdiction by the High Court. The core legal question was whether the High Court erred in refusing to order the return of monetary benefits to the petitioner in its writ jurisdiction while upholding the dissolution of marriage. The Supreme Court of Pakistan held that where the petitioner failed to insist upon the determination and return of monetary benefits at the proper stage before the lower forums, such relief could not be granted in the highly discretionary writ jurisdiction of the High Court. The Court further noted that initiating a fresh civil suit for the same purpose would be a futile exercise. Consequently, leave to appeal was refused, and the impugned judgment was upheld.
- Can a party claim the return of monetary benefits in writ jurisdiction upon the dissolution of marriage through Khula if no such insistence was made at the proper stage below?
- Whether the High Court is bound to issue directions for the return of benefits while upholding a dissolution of marriage on the ground of Khula in discretionary writ proceedings?
- Is it appropriate to file a fresh civil suit for the recovery of monetary benefits after failing to seek the same during Khula proceedings?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought by an ex-male partner in a marriage contract against the affirmation of the dissolution of the marriage through the ground of Khula` in writ jurisdiction.
2. The only point urged is that while granting Khula' no direction for the return of monetary benefits has been made in favour of the petitioner. It appears that the learned Judge in the High Court was satisfied that the dissolution impugned in the High Court was based on evidence and there was no infirmity, legal or otherwise. However, by way of abundant caution some observation in the case of Akhlaq Ahmad v. Kishwar Sultana PLD 1983 Supreme Court 169 was made. It was observed that if the petitioner was so keen for the return of benefits if any, he could file a suit.
3. In so far as the said observation goes it is the right of the petitioner to seek the remedy but in a case like the present one, he not having insisted upon at proper stage for the determination of the exact benefits received by the respondent's side nor for their return as it might have been thought below his dignity to do so, the same could not be asked for in the writ jurisdiction of the High Court which is highly discretionary. Therefore, in addition to what the High Court observed we feel that it was not a fit case for grant of relief asked for in the discretionary writ jurisdiction of the High Court.
4. Accordingly, the impugned judgment is unexceptionable for this additional reason also. And hence the matter now finally stands closed. It will be futile exercise for the petitioner to file a fresh civil suit.
5. Leave is refused.
Cited by 7 cases
- FAZAL HUSSAIN vs Mst. ASMAT BIBI and another- 2002 CLC 40
- MUHAMMAD RAZZAQ vs Mst. NAUREEN BIBI And ANOTHER 2001 CLC 137
- Sh. AZHAR MAHMOOD vs GOVERNMENT OF PUNJAB through Secretary, Local 2002 CLC 134
- KHALID MAHMOOD Versus ANEES BIBI 2007 PLD 626
- ABDUL RASHID Versus Mst. SHAHIDA PARVEEN 2013 YLR 2616
- MUHAMMAD RAZZAQ Versus MST. NAUREEN BIBI 2002 CLC 137
- QAMMAR ALAM SHEIKH Versus ROBINA 1997 CLC 985