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Writ Petition No. 3366 of 1981, decided on 13th September, 1982.

---------Art. 199 and West Pakistan Family Courts Act (XXXV of 1964), S. 7 read with Civil Procedure Code (V of 1908)‑‑‑Petitioner not filing appeal against judgment given in maintenance suit or judgment and decree in suit for conjugal right‑‑‑Appeal against suit for dissolution of marriage, held, cannot be dismissed on this ground‑Proceedings before Judge, Family Court not in stricto senso to be governed by Civil Pro cedure Code.

‑‑ S. 2‑‑Khula'‑Dissolution of marriage on ground of Khula not con sidered, petitioner having failed on other issues‑Such approach of Courts below, held, not correct‑‑‑Issue pertaining to Khula to be decided with open mind and .in accordance with law laid down in P L D 1967 S C 97‑‑Case remanded to Family Court for decision in accordance with law.

Mst. Khurshid Bibi v. Baboo Muhammad Amin P L D 1967 S C 97 fol.

Sh. Abdui Aziz for Petitioner.

Nemo for Respondents.

Date of hearing : 28th June, 1982.

Mst. Munawar Bibi has filed this petition under Article 9 of the Provi sional Constitution Order, 1981, praying that the order dated 31‑3‑1981 of the Additional District Judge, Lahore, and the judgment and decree dated 9‑10‑1980 passed by the Judge, Family Court be declared to be without lawful authority and as such of no legal effect, She has further prayed for "any other equitable relief".

2. Munawar Bibi was married to respondent No. 3 in the year 1971 Soon after the marriage, the spouses fell out. According to the petitioner, her husband did not perform marital obligations. She was treated cruelly ; beaten by her husband ; neglected ; not even maintained and was, eventually, turned out of her house. She became a maid‑servant to earn her livelihood.

The petitioner filed a suit for dissolution of marriage. Grounds were many including Khula . A separate suit for maintenance was also filed. The husband in turn filed a suit for restitution of conjugal rights.

3. The Judge Family Court who was seized of the matter, consolidated the three suits and framed the following issues :‑‑

(1) Whether the defendant has been cruel towards the plaintiff O. P. P.

(2) Whether the defendant has not maintained the plaintiff for more than two years 7 O. f. P.

(3) Whether the defendant has failed to perform his marital obligations for more than three years O. P: P.

(4) Whether the plaintiff entitled to "Khula " If so, on what terms.

(5) Whether the plaintiff is entitled to the maintenance If so, at what rate and for what period O. P. P.

(6) Whether the defendant is entitled to the restitution of conjugal rights' O. P. D.

(7) Relief:

After recording evidence on all the issues the Judge dismissed the suits for dissolution of marriage and for maintenance and decreed the suit for restitution of conjugal rights.

4. Munawar Bibi filed an appeal against the judgment and decree where by her suit for dissolution of marriage was dismissed. However, she did not file any appeal against the judgment in the suit for maintenance as well as the suit for conjugal rights. The appeal was dismissed by the Additional District Judge by order dated 31‑3‑1981. In this order an observation has been made that as Manawar Bibi did not challenge the judgment of the Judge Family Court in the maintenance suit, that judgment attained finality.

4. This petition was admitted to examine whether the ground of Khula was duly considered by the two Courts below and the dictum laid down in the case of Mst. Khurshid Bibi v. Baboo Muhammad Amin (P L D 1967 S C 97) was followed or not.

Process was issued to all the respondents including the husband. In spite of service, he did not turn up. He is, therefore, proceeded ex parte.

5. Learned counsel appearing on behalf of the petitioner raised number of contentions challenging the findings of the two Courts below even on factual issues. I did not permit him to argue those. So the only point on which he laid great stress was whether the ground of Khula had been properly dealt with by the Courts below in the light of the aforesaid decision of the Supreme Court of Pakistan. For this matter I allowed him to refer to the relevant evidence. I also called upon him to submit as to how he was to get over the observation of the appellate Court that the petitioner did not file an appeal against the judgment in the maintenance suit which thus became final.

In support of his contention regarding Khula , his sole reliance was on the judgment of the Supreme Court. About the second point, learned counsel submitted that this was only of a technical nature. The main suit was for dissolution of marriage. Even if the petitioner did not file an appeal against the judgment given in the maintenance suit as well against the judg ment and decree in the suit for conjugal rights, that did not mean that the appeal with regard to the suit for dissolution of marriage was to be dismissed on this ground. I am inclined to agree with the learned counsel regarding this submission because I am of the view that the proceedings before the Judge Family Court are not to be governed in stricto senso by the Civil Procedure Code.

While dealing with the issue of Khula , the Judge Family Court observed "allowance of Khula to the plaintiff will add premium to her undesired separation". It was further observed that "there are no circumstances on record which could show that the parties cannot live within the limits of God". This finding was confirmed by the appellate Court. I don't think this issue has been properly considered and decided by the trial Court as well as by the Appellate Court in the light of law laid down by the Supreme Court of Pakistan. From the judgment of the Judge Family Court it appears that the suit was dismissed because she failed on other issues. This was not the correct approach. The issue pertaining to Khula has to be decided with an open mind. It has to be decided in accordance with law laid down in the case referred to above. The judgment of the Supreme Court is classic. The doctrine of Khula , its scope and operation have been exhaustively dealt with. This aspect has not been taken note of by the Courts below.

During arguments, learned counsel for the petitioner also made use of the absence of the respondent and submitted that though a decree for restitution of conjugal rights has been obtained by him but he is not serious about it. As a matter of fact, he wants to have the decree with him in order to keep the petitioner in a state of suspense indefinitely. It is not possible for me to Judge the intention of the respondent but the fact remains that in spite of service he did not turn up.

Anyhow, after taking all the relevant facts into consideration, I am inclined to accept this petition to the extent that this case shall go back to the Judge Family Court for deciding the issue of Khula afresh, in accordance with the law laid down by the Supreme Court.

The Judge Family Court is directed to finally dispose of the matter within three months. An intimation to that effect shall be sent to the Registrar of this Court.

No order about costs.

M.Y. M. Case remanded,

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