PLJ 2007 Karachi 198

Present: Zia Perwaz, J

ABDUL REHMAN--Petitioner

versus

Mst. HAKIM and another--Respondents

Const. P. No. S-58 of 2007, decided on 9.3.2007.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 5 & 10 [as amended]--Object and scope of amendment--Object of amendment in West Pakistan Family Courts Act, 1964, is to avoid delay in proceedings and to afford right and remedy available to wife seeking Khula' expeditiously. [P. 200] A

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Framing of issues--Question of--Powers of Family Court--Scope--Family Court has power to amend, modify and even reframe issues at any stage of proceedings. [P. 200] B

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 5 & 10(4)--Constitution of Pakistan (1973), Art. 199-- Constitutional petition--Dissolution of marriage--Khula'--Deposit of dower money--Grievance--After framing of issues, Family Court should not have dissolved the marriage on the basis of Khula'--Right to remarry--Validity--Object of such dissolution of marriage was to provide specific remedy without any undue delay so as not to keep the wife in a state where she might be deprived of her right to remarry while she was of marriageable age, in addition to mental agony and tension which was the objective to meet the ends of justice in the light of enactment--Even if the husband disputed receipt of dower the wife seeking relief by way of Khula' might deposit the amount of alleged dower in Court and the Court under the circumstances was required to allow dissolution of marriage on the basis of Khula' pending decision regarding controversy of the amount of dower to be adjudicated upon at later stage--Even a frivolous claim for dower amount could become a tool to defeat the objective for which the remedy was provided and thus could defeat the purpose of statute--High Court declined to interfere with the judgment and decree passed by Family Court--Petition was dismissed.

[P. 200] C, D & E

Mr. Muhammad Saleh Bhutto, Advocate for Petitioner.

Date of hearing: 9.3.2007.

Order

This petition is directed against the impugned judgment dated 10-12-2005 of 2nd Civil Judge and Family Judge, Pano Akil allowing Khula' application registered under F.C. Suit No. 1 of 2005.

Marriage of the petitioner with Mst. Hakim, Respondent No. 1 was solemnized in the year, 1999. Dower amount was fixed at Rs. 1,000. Pre-trial took place but failed on 8-3-2005. A demand of return of dower initially Respondent No. 1 denied to have received Rs. 1,000, therefore, learned trial Court proceeded with the framing of issues. However, on 25-10-2005 application was submitted on behalf of Respondent No. l for return of dower amount on the ground that in case trial was conducted it would be time consuming.

Contention of learned counsel is that after having framed the issues the trial Court could not have disposed of the case vide impugned judgment on the basis of application for allowing Khula' immediately after failure of pre-trial within the meaning of proviso 4 of Section 10 of the West Pakistan Family Courts Act, 1964.

Heard learned counsel and perused the record. The proviso 4 to Section 10 of the West Pakistan Family Courts Act, 1964 reads as follows:--

"If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix date for the recording of the evidence."

The only contention provided for dissolution of marriage on the basis of Khula' is the return of amount of dower, which was the only bone of contention in the above case. The object- of this amendment to the Family Courts Act, 1964 is to avoid delay in proceedings and to afford right and remedy available to the applicants seeking Khula' expeditiously.

As to the question of framing the issues, the issues are framed by the Court. The Court has power to amend, modify and even reframe the issues at any stage of the proceedings. The provisions of law are to be interpreted as in the manner as not to defeat the very object of the statute. In the instant case the object is to provide the specific remedy without any undue delay so as not to keep the wife in a state where she may be deprived of her right to remarry while she is of marriageable age in addition to the mental agony and tension which is the objective to meet the ends of justice in the light of enactment.

The arguments advanced before the Court are rather against this very principle. The application moved by the counsel for the applicant to payment/deposit the disputed amount of dower to Khula' is not barred by any law. In such cases even if the respondent disputes receipt of dower the applicant seeking relief by way of Khula' may deposit the amount of alleged dower in the Court and the Court under the circumstances is required to allow dissolution of marriage on the basis of Khula' pending final decision regarding controversy of the amount of dower to be adjudicated upon at later stage otherwise even a frivolous claim for dower amount would become a tool to defeat the very objective for which the remedy is provided and thus defeat the purpose of the statute.

Under the circumstances, no ground valid for interfering with impugned judgment is made out. The impugned judgment was announced on 10-12-2005 and challenged by the above petitioner after a period of 14 months which is even otherwise not maintainable as it suffers from the latches.

For the foregoing reasons, this petition is dismissed in limine.

(R.A.) Petition dismissed