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C.P. 2865 2022

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63 views5 pages

C.P. 2865 2022

Uploaded by

Jayna
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
Mr. Justice Amin-ud-Din Khan
Mr. Justice Syed Hasan Azhar Rizvi

Civil Petition No.2865 of 2022


(Against the Order dated 13.06.2022 of the Lahore High Court,
Rawalpindi Bench passed in Writ Petition No.1674 of 2022)

Syed Amir Raza …Petitioner(s)


Versus

Mst. Rohi Mumtaz and othes …Respondent(s)

For the Petitioner(s) : Sh. Ahsan-ud-Din, ASC

For Respondent No.1 : Sh. Muhammad Suleman, ASC

Date of Hearing : 05.05.2023

JUDGMENT

Syed Hasan Azhar Rizvi, J:- Through this petition for

leave to appeal filed under Article 185(3) of the Constitution of

the Islamic Republic of Pakistan, 1973, the petitioner has

assailed the order dated 13.06.2022 passed by the Lahore

High Court, Rawalpindi Bench, whereby writ petition No.1674

of 2022 being devoid of merit was dismissed.

2. Precisely, facts relevant for adjudication of the

instant petition are: that the petitioner (Syed Amir Raza) and the

respondent (Mst. Rohi Mumtaz) entered into a contract of marriage

on 20.10.2017 in consideration of dower, 50-tolas of gold

ornaments and a house, duly mentioned in the Nikahnama.

Rukhsati of the respondent took place on 17.02.2018 and


Civil Petition No.2865 of 2022.doc -2-

after that she started living and performing matrimonial

obligations with the petitioner. During the said period, the

attitude of the petitioner and his family members towards the

respondent remained very unpleasant, cruel and quarrelsome

and on a number of occasions, the petitioner has beaten the

respondent, thus based on these facts severe hatred has

developed in the mind of the respondent and it has become

unfeasible for her to live with the petitioner. A civil suit for

dissolution of marriage on the ground of khula was instituted

on 22.09.2018 by the respondent before the Judge Family

Court, Taxila (trial Court), which was decided through the

judgment dated 28.11.2018 in the following terms:-

“Therefore, the suit of the plaintiff is hereby ex-pare decreed in


favour of the plaintiff and against the defendant and martial ties
between the parties are hereby dissolved on the basis of khula
u/s 10(5) of West Pakistan Family Courts Act, 1964. The plaintiff
is directed to surrender 50% of her deferred dower and 25% of
her prompt dower.”

On 04.10.2018, the respondent filed a suit against the

petitioner for recovery of dower, maintenance and dowry

articles. Issues were framed and after recording of evidence,

trial Court partially decreed the suit vide judgment and

decree dated 27.08.2020 as under:-

“a) The plaintiff is entitled to receive 37.5 tolas gold ornaments


from the defendant No.1 or its alternative market value and a
house from the defendant No.1 as mentioned in Nikhanama.

b) Therefore, plaintiff is entitled to receive Rs.20,000/- per month


as maintenance allowance for period of iddat only from
defendant No.1.
Civil Petition No.2865 of 2022.doc -3-

c) The plaintiff is entitled to receive dowry articles as Exh.D-3 and


articles “1, 4, 11, 12, 13, 14, 15, 16” as per list Exh.P-2 of
plaintiff or their alternate value after 15% depreciation in value
from the defendants. To the extent of all remaining claims suit
of plaintiff is dismissed.”

Being aggrieved, the petitioner as well as the respondent filed

family appeals before the Additional District Judge, Taxila

(appellate Court), which were dismissed through a consolidated

judgment dated 31.03.2022. By invoking the constitutional

jurisdiction of the High Court, the petitioner filed a writ

petition, which too met the fate of dismissal vide order dated

13.6.2022, hence this petition.

3. Learned counsel for the petitioner contends that

the impugned order is against law and facts; that the same is

suffering from misreading and non-reading of evidence on the

record; that the impugned order is based on extraneous

reasons, surmises and conjectures; that the Courts below

have not applied their judicious minds independently and

passed the judgments in hasty and mechanical manner; that

the marriage between the parties have been dissolved by way

of a decree obtained on the sole ground of khula, according to

which, the respondent has to surrender fifty percent (50%) of

her deferred dower and 25% of prompt dower, whereas

according to the contents of Nikahnama, the entire gold

ornaments have been paid to the respondent at the time of

rukhsati; that the High Court has ignored the important,


Civil Petition No.2865 of 2022.doc -4-

crucial and vital aspect of the matter that the petitioner was

liable to pay half of the value of the house as described in

column No.13 of the Nikahnama after passing of the decree of

khula, which fact admittedly has not been challenged by the

respondent and that the impugned order is a non-speaking

order.

4. Conversely, learned counsel representing the

respondent has supported the impugned order and faithfully

defended the same.

5. We have heard the learned counsel for the parties

at a considerable length and gone through the material

available on record with their able assistance. Per Section

10(5) of the West Pakistan Family Courts Act, 1964, in a suit

for dissolution of marriage, if reconciliation fails, the Family

Court shall immediately pass a decree for dissolution of

marriage and in case of dissolution of marriage through khula,

may direct the wife to surrender up to fifty percent of her

deferred dower or up to twenty-five percent of her admitted

prompt dower to the husband. We find that the learned trial

Court while decreeing the suit vide order dated 27.08.2020,

disregarded the earlier judgment dated 28.11.2018, which

directed the respondent to “surrender 50% of her deferred

dower”. The house from the petitioner, as mentioned in

Nikahnama, is the deferred dower and as per the khula

judgment, the respondent is only entitled to fifty percent


Civil Petition No.2865 of 2022.doc -5-

(50%) of the house (deferred dower). This premise is grounded

in Section 10(5) ibid that while obtaining dissolution on the

sole basis of khula, the respondent is bound to surrender fifty

percent (50%) percent of her share in deferred dower. We refer

to the judgment of this Court in the case of Muhammad Arif

v. Saima Noreen (2015 SCMR 804) which held that the wife,

in case of khula, has to forego the dower amount as per

Section 10 of the ibid Act.

6. For what has been discussed above, this petition

is converted into an appeal and allowed. The impugned order

is modified to the extent of the deferred dower and the

respondent is held entitled only to fifty percent (50%) share in

the house in question or market value thereof.

JUDGE

JUDGE
Islamabad,
the 5th May, 2023
NOT APPROVED FOR REPORTING
Ghulam Raza/Ali Gilani (LC)*

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