Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Constitutional Petition No. 93 of 1986, decided on 28th March, 1987.
‑‑‑ S. 8‑‑West Pakistan Family Courts Act (XXXV of 1964), S. 7‑ Dissolution of marriage on ground of Khula‑‑Wife seeking dissolution of marriage but not making prayer for grant of Khula in her plaint‑ Raising of such plea in her statement before Family Court at time of evidence, held, would entitle such wife for grant of Khula.
P L D 1983 S C 169 and P L D 1984 S C 331 ref.
‑‑‑ S. 8‑‑West Pakistan Family Courts Act (XXXV of 1964), Ss. 7 & 14‑‑Constitution of Pakistan (1973), Art. 199‑‑ Dissolution of marriage on ground of Khula‑‑Prayer for‑ ‑Constitutional jurisdiction, exercise of‑‑Concurrent finding of Family Court and Appellate Court below refusing dissolution of marriage of petitioner wife on ground of Khula, ignoring statement of wife that she would relinquish her dower and claim for maintenance in lieu of grant of Khula, held, was without lawful authority‑‑High Court in exercise of constitutional jurisdiction set aside concurrent order of Courts below and remanded case to Trial Court to decide afresh after affording parties opportunity to adduce evidence.
Masood Hayat Khan for Petitioner.
Muhammad Rafique Khanzada for Respondent No.l.
Date of hearing: 8th March, 1987.
The petitioner filed a suit for dissolution of her marriage with the respondent No.1 before the learned Family Court No.XXII at Karachi. Besides pleading maltreatment at the hands of the respondent the petitioner further pleaded that she could not live with the respondent as his wife within the limits prescribed by nature. The learned family Judge dismissed the suit on the basis of evidence recorded by him. He came to the conclusion that the allegations of maltreatment made by the petitioner against the respondent had not been established by her and, therefore, she was not entitled to a decree in her favour. On the question of Khula, the learned Family Judge held that there was no such prayer made by the petitioner in the plaint and, therefore, the same could not be considered. The appeal filed by the petitioner was also dismissed by the learned District Judge without adverting to the question whether marriage could be dissolved by way of Khula.
In this petition the main ground urged by Mr. Masood Hayat Khan, learned counsel for the petitioner, has been that a statement had been made by the petitioner at the time of her evidence that she was not prepared to live with the respondent No. 1 as his wife at any cost and consequently, both the learned Family Court as well as the learned Appellate Court fell into great error by not considering this very important aspect of the case. Reliance was placed by him on PLD 1983 S C 169 and P L D 1984 S C 331.
The contention of Mr. Masood Hayat Khan does not appear to be without substance. The statement of the petitioner before the learned Family Judge, a copy whereof has been filed with this petition does confirm that a plea for grant of Khula to her had been raised therein. According to the statement, the petitioner was also prepared to relinquish her dower and claim for maintenance in lieu of grant of Khula. The law on the point is well‑established and need not be re‑stated. Both the impugned orders clearly show that this aspect of the case has not been considered by the learned subordinate Courts.
As a result, this petition is allowed and both the judgment and the order, dated 7‑10‑1986 and 25‑9‑1984 passed by the learned First Additional District Judge (East), Karachi and the learned Family Court No.XXII, Karachi respectively, are held to be without lawful authority. The case is remanded to the learned First Additional District Judge (East) Karachi for decision after taking into consideration all the material evidence adduced by the parties in the case, including that in respect of Khula. The learned Judge may thereafter form his own independent view. The parties are left to bear their own costs.
H.B.T./M‑168/K Case remanded.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer