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Petitioner: Muhammad Arif VS Respondent: Additional Sessions Judge-VIII, Karachi West and 2 JUDGMENT
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title:Muhammad Arif vs Additional Sessions Judge-VIII, Karachi West and 2
JUDGMENT
Reported As: 2020 YLR 1586 Result: N/A Judgment JUDGMENT AZIZ-UR-REHMAN, J.---Through this Constitutional Petition No.S-2342 of 2018, the Petitioner herein viz. Muhammad Arif son of Ali Asghar, has called in question judgment dated 30.08.2018 [Annexure 'A' to the Memo of Petition], passed by the learned VIIIth Additional District and Sessions Judge, Karachi-West, in Family Appeal No.101 of 2017 [Muhammad Arif v. Mst. Shahnaz], whereby, the 'judgment' and 'decree' both dated 16.09.2017, [Annexure 'E/3' to the Memo of Petition], passed in Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], by the learned IXth Civil and Family. Judge Karachi-West, were 'maintained' and consequently, Family Appeal No.101 of 2017, was dismissed, however, with no order as to cost. The prayer sought in the Memo of Petition [In short MoP], reads as follows; i]. To set aside the impugned judgment dated 30.08.2018 passed by the learned Additional District and Sessions Judge No.8 at Karachi West in Family Appeal No.101 of 2017, and so also the judgment and decree dated 16.09.2017, passed by learned IXth Family Judge at Karachi West in Family Suit No.153 of 2012 and hold that the Petitioner is not liable to pay any maintenance to the Respondent No. 3. ii]. To call for the record, paper and proceedings of the learned IXth Family Court at Karachi West in Family Suit No.1653 of 2012 as well as the learned Additional District and Sessions Judge No.8 at Karachi West in Family Appeal No.101 of 2017. iii]. To grant such other reliefes as this Hon'ble Court being just and proper in the circumstances of the case. iv]. To grant cost of the petition. 2. Resume of the facts forming the background of the instant Petition is that; the 'Nikah' of Respondent No.3 herein [Plaintiff] namely Mst. Shahnaz daughter of Khalil-ur-Rehman was performed with the Petitioner herein
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[Defendant], namely Muhammad Arif son of Ali Asghar on 24.12.1999, at Karachi, according to Muslims Personal Law against the 'dower amount' of Rs.30 000/- but Rukhsati, never took place. 3. Per assertions made in the plaint, at the wish and inducement of the Petitioner herein .[Defendant] and his parents, 'Nikahnama' of such marriage was also registered, as it was much needed/required by the Petitioner, for arranging a house/residence from the Petitioner's employer viz. Pakistan Atomic Energy Commission of Pakistan, Islamabad. As per pre-condition imposed by the employer, according to which, only a 'married employee' was eligible to apply and get a residential accommodate/ House/Plot in Islamabad, on the basis of a registered 'Nikahnama'. 4. The Petitioner herein [Defendant] succeeded in obtaining a residence/house from the employer but avoided to take the 'Rukhsati' of Respondent No.3 herein [Plaintiff]. Instead, the Respondent No.3 herein [Plaintiff] and her other 'family members' were kept assured but on the basis of false hopes and promises. The Petitioner herein [Defendant], through 'lame excuses', such as; some time there is a winter season, sometime there is a 'summer season' and sometime, there is a 'holy month of Ramzan', 'Moharram' etc. etc. repeatedly delayed the 'Rukhsati', of the Plaintiff [Respondent No.3 herein], in a very clever manner. 5. Later on, when. the parents of Respondent No.3 herein [Plaintiff] again asked the Petitioner herein [Defendant], to arrange 'Rukhstati' of their daughter namely Ms. Shahnaz then, also the Petitioner herein [Defendant], very cleverly, postponed the 'Rukhsati' of Respondent No.3 herein. Thereafter, about six months back, the father of the Petitioner herein [Defendant], came to Karachi, but for the purpose of attending a 'funeral ceremony' of a relative/brother-in-law. During such period, as per Petitioner's version, the Petitioner's father stayed at the house of a 'common relative'. During such stay at Karachi, he also met with the father Respondent No.3 herein [Plaintiff's] and, as asserted, he had assured for the arranging of 'Rukhsati' i.e. after 40 days but this time, as well, the Rukhsati of Plaintiff [Respondent No.3 herein], as promised, could not take place. The Respondent No.3 herein [Plaintiff] and her parents, on account of such continued 'breach of promises' and 'routine excuses', not only suffered 'mental agony', 'defamation' but also faced insult in brathery/closed and known relatives, who were not only making jokes but also they were then raising fingers for and on account of non-taking place of 'Rukhsati' of Mst. Shahnaz daughter of Khalil-ur-Rehman since, 24.12.1999. According to Respondent No.3's stand, mother of Respondent No.3 herein [Plaintiff] thereafter, also died/expired, as alleged, due to 'shocks'/'worries' caused to her and her family members by the Petitioner herein [Defendant] and his parents, that is to say, since, 24.12.1999, when 'NIKAH' of the Petitioner herein [Defendant], was performed with Respondent No.3 herein [Plaintiff]. 6. Under the foregoing scenario, the Petitioner herein [Defendant] was thus called upon through a Legal Notice [Exh.'P/1-C1 by Plaintiff's counsel to immediately pronounce 'Divorce', to the Respondent No.3 herein [Plaintiff] i.e. within seven [7] days, from receipt of such Legal Notice dated 24.09.2012, failing which, Respondent No.3 herein, [Plaintiff] would have no 'alternate' except to seek appropriate remedy by way of approaching a court of law, as well as, to other competent authorities including Pakistan Atomic Energy Commission of Pakistan, Islamabad etc. regarding the Defendant's-Petitioner's illegal, un-justifiable and immoral acts. The Petitioner herein, despite receipt of such legal notice, however, failed to give any positive response. 7. On account of 'passive attitude'/ 'dis-inclined behavior' of Petitioner [Defendant], in the heart of Respondent No.3 [Plaintiff], hatred was gradually developed thus she finally compelled to approach the court of learned Xth Family Judge, Karachi-West, by way of filing a Suit on 27.11.2012, for 'Dissolution' of her Marriage by way of 'Khula', and recovery of 'past Maintenance' with the prayers as follows:- 1) It is therefore, prayed that this Hon'ble Court may pleased to pass a Judgment and decree in favour of the Plaintiff and against the Defendant, thereby dissolving the marriage of the Plaintiff with the Defendant, thereby declaring the marriage of the Plaintiff with the Petitioner herein [Defendant] or in the alternative , the Plaintiff may be awarded KHULA for which she is ready forego her Dower amount. 2) To direct the Defendant to pay the past maintenance of the Plaintiff at the rate of Rs. 30,000/- per month since 2412-1999 which is approx. calculated to Rs.46,80,000/- for last 156 months and also till she get Khulla, further the Defendant be directed to pay maintenance in addition to the above-mentioned maintenance at the
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rate of Rs.2000/- per month already settled in between the parties in Nikkah Nama against 156 months i.e. total amounting to Rs. 3,12,000,00/- and onwards till disposal of suit. 3) Costs of this suit, any other/further relief which this Honorable Court may deem fit and proper. 8. Upon service, the Petitioner herein [Defendant], filed his 'written statement' wherein, the 'allegations levelled' and 'adverse assertions' made in plaint were denied/controverted. In the 'written statement' however, the factum of 'NIKAH' on 24.12.1999, according to Muslim Personal Law, against the Dower amount of Rs.30,000/- [Rupees Thirty Thousand only], was not denied. Besides, 'Registration' of NIKAH and receiving the Registered Copy of 'NIKAHNAMA' [Exh. 'P/1-C1 was also not denied. 9. Per Petitioner's stand, he is still residing in a 'Government Hostel', and has never obtained any accommodation from the 'Employer Department' [Dr. A.Q. Khan Research Lab Kahutta], because of the Plaintiff's 'non-co-operation' though, the Plaintiff is a 'wedded wife' of the Defendant [Petitioner herein]. 10. As averred in the written statement', the Petitioner [Defendant], has neither kept the Respondent No.3 herein [Plaintiff] nor her parents, as alleged, on false hopes in respect of Plaintiff's Rukhsati. Per Petitioner's stand, he and his family always wished/ wanted to take the 'Rukhsati' of the Plaintiff namely Ms. Shahnaz after 'performance of her Nikah' on 24.12.1999, with Petitioner herein [Defendant]. Per assertions, Defendant's father and other family members regarding 'Plaintiff's Rukhsati', though had made requests to the Plaintiff's family members but they despite such requests did not agree for the Rukhsati of Respondent No.3 [Plaintiff] since, 24.12.1999, when her Nikah was performed with the Petitioner [Defendant]. Per Petitioner's stand, Plaintiff's father in fact, before 'Rukhsati of Respondent No.3 [Plaintiff] wanted first to arrange the marriages of his elder daughters, construct a house in Orangi Town, Karachi and set-up a transport business. 11. During the entire period i.e. since, the performance of Plaintiff's 'Nikahnama' with the Petitioner herein [Defendant] on 24.12.1999, it was the Plaintiff's father, who wasted long time for fulfilling of his wishes. The 'Rukhsati' of the Respondent No.3 herein [Plaintiff], namely Mst. Shahnaz daughter of Khalil-ur-Rehman thus became a hurdle for the Petitioner herein [Defendant], as well as, his family. Per Defendant's version/stand, no delay, 'irreparable losses', 'mental agony' and/or 'great inconvenience', as alleged, in the plaint, was ever caused to Plaintiff, as Petitioner [Defendant], is not only a law abiding citizen of Islamic Republic of Pakistan but also a responsible Government employee. Per version of the Petitioner herein [Defendant] sometime in the Month of April, 2012, when father of Petitioner herein [Defendant], came to Karachi along with the Defendant's uncles namely [i]. Muhammad Ashraf and [ii]. Muhammad Riaz for attending a 'funeral ceremony' of his brother-in-law namely Khursheed [late] then, also after the attending the 'funeral ceremony', they had also gone to the house of Plaintiff's father, situated in Orangi Town, Karachi, with a request for the Plaintiff's Rukhsati but then, instead of allowing the Rukhsati, a promise for allowing Rukhsati was made but only after the Chehlum of Khursheed [late], is over. 12. With regard to the death of Plaintiff's mother, per Defendant's stand, she did not expire much-less, to say due to 'shock'/ 'worries' caused to her on account of Plaintiff's 'Non-Rukhsati', rather to say, she had died, on account of acute 'blood pressure' and 'heart attack' in a Hospital. The 'funeral ceremony' of the Plaintiff's mother, was also attended by the Defendant [Petitioner herein], as well as, his mother who is a real sister of the Plaintiff's deceased's mother. According to Defendant's version, this time, as well, after ten [10] days, from the death of Plaintiff's mother, the Defendant's mother had asked for 'Rukhsati' of the Plaintiff [Respondent No.3 herein], but then, also, as asserted, father of the Plaintiff had said that the matter of 'Rukhsati' would be dis- cussed later-on i.e. after Chehlum of Plaintiff's mother. On saying so, the Petitioner [Defendant] left for Peshawar, without taking 'Rukhsati' of Mst. Shehnaz daughter of Khalil-ur-Rehman. 13. Thereafter, some weeks' later, family members of the Defendant again requested to Plaintiff's father to give the 'Rukhsati' of Plaintiff but then, also the 'Rukhsati' of the Plaintiff was denied by demanding/imposing some new conditions i.e. [i]. 'Dower amount' must be of Rs.10 Lacs [ii]. 'Monthly Maintenance' amount must be of Rs.10,000/- per month and [3]. The 'gold ornaments' must be of 15 Tolas. Otherwise, the 'Rukhsati' of his daughter [Plaintiff], would not be allowed. Later-on, per Petitioner's stand, a letter dated 07.2.2012, was sent through registered A/D to Plaintiff's father, in which a request for effecting 'Rukhsati' of Plaintiff [Respondent
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No.3 herein], was made/reiterated. Moreover, in the said letter of 07.02.2012, imposition of new conditions was stated to be against the 'Sharia'. The father of Plaintiff, somehow, was no more interested in the 'Rukhsati' of the Plaintiff, though in this regard, repeatedly requests were made on the part of Defendant's kith and kin but to no avail. 14. In the legal notice dated 27.9.2012 [Exh.'A/1-B], received to Defendant [Petitioner herein], from Plaintiff's side, a clear demand for 'Divorce' of the Plaintiff [Respondent No.3 herein] was made. The Defendant's father, thereafter, came to Karachi, along with his relatives namely [i] Muhammad Bashir and [ii]. his son named Shakeel Ahmed who also went to the house of the Plaintiff's father with an 'aim to resolve' the issue/dispute of 'Rukhsati' of the Plaintiff [Respondent No.3 herein] but then father of the Plaintiff stated/said that he has taken a Swear [QASAM] not to give 'Rukhsati' of Plaintiff to the Defendant. In this regard, as asserted in the 'written statement', the Petitioner's father had also approached some other 'relatives' / 'family members' of Plaintiff's father i.e. [i]. Shah Zaman who is the brother of Plaintiff's father and [ii]. Shafiq-ur-Rehman. Per Defendant's versions, they had also requested to the Plaintiff's father for allowing 'Rukhsati' of the Plaintiff [Respondent No.3 herein], but father of Despondent No.3 [Plaintiff] did not bother to even consider such requests. 15. In the 'written statement', it has further been asserted that after the Defendant's 'Nikah' his father and other family members always used to send 'gift items', as well as, 'cash amount' for/to the Plaintiff [Respondent No.3 herein] i.e. on each 'occasion of Eid' etc. as the Defendant's sister is also married at Karachi, as such, when the Defendant's family sent anything to his sister then, gift items, were also sent for the Plaintiff [Respondent No.3 herein], that is to say, sometime by hand and sometime through money order, despite the fact that the Plaintiff's 'Rukhsati' had not taken place. Per 'averments' made in the 'written statement', the Plaintiff is not entitled for any 'maintenance' as claimed, in Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Aril], because it was the Plaintiff and her family, who not only refused the 'Rukhsati' but the Plaintiff herself had also refused/ avoided the performance of 'marital obligation' with the Defendant. The Plaintiff [Respondent No.3 herein], as such, is not entitled for recovery of any 'past maintenance' as claimed. 16. Later on, when Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Aril], came-up before the Court of learned Xth Family Judge, Karachi-West, for 'pre-trial' proceedings on 10.4.2013 then, the following order was passed :- Case called. Today the matter is fixed for pre trial proceedings. The plaintiff is present with her counsel so also the defendant counsel is present. The plaintiff stated that she does not want to live with the defendant at any cost and request for dissolution of marriage by way of khulla and is ready of to forego her dower amount Rs.30,000/- which is still unpaid to her and rukhsati did not take place. On the other hand, the defendant in his written statement admitted that he had not paid the dower and his counsel contended that any appropriate order may be passed. [Emphasis Supplied]. The facts of the plaintiff case are the plaintiff filed a suit for dissolution of marriage by way of khulla and recovery of past maintenance against the defendant. It is pertinent to mention here that in view of the amendment in section 10 of the W.P. Family Courts Act, 1964, Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage for with and shall also restore the husband Haq Mehar received by the wife in consideration of marriage at the time of marriage. Since, the dower is not disputed, thus no question of returning the same arises. Hence I hereby declare the pre- trial proceedings failed and dissolve the marriage between the plaintiff and defendant and from the pleading of parties following issues were framed:-- 1. Whether no cause of action accrued to the plaintiff? [OPD] 2. Whether the plaintiff is entitled for maintenance, if so, at what rate and from which period? 3. What should the decree be? Let the 'preliminary decree' be prepared and sent to the concerned authorities form information and compliance. Announced in open court Given under my hand and the seal of the court
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This 10 day of_______ April 2013 Sd/- [Mrs. Shehnaz Bohyo] Xth Family Judge Karachi West. 17. In compliance with the Order dated 10.4.2013, a 'PRELIMINARY DECREE', was accordingly prepared/ passed on 10.4.2013. The marriage of the Plaintiff [Respondent No.3 herein], namely Mst. Shahnaz daughter of Khalil-ur-Rehman with the Defendant namely Muhammad Arif son of Ali Asghar was thus dissolved. The Plaintiff in Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], thereafter, it appears, had filed her own 'Affidavit-in-Evidence' on 27.11.2012, wherein, the 'averments' and 'assertions' vis-a-vis 'dissolution of her marriage with Defendant [Petitioner herein] and he claim pleaded/put forward for 'MAINTENANCE' in plaint were 're-affirmed'/'reiterated'. Later on, the Plaintiff's 'Examination-in-Chief' and 'Cross-Examination' was recorded on 17.9.2013. In the Plaintiff's 'Examination-in-Chief' the deponent namely Mst. Shehnaz [PW-1] besides, producing here 'Affidavit-in-Evidence' as Exh 'P/1-A' also produced here 'Nikahnama' dated 24 .12.1999, 'TCS Receipt' and 'Legal Notice' dated 24.09.2012 as Exh. 'P/1-B' and Exh. 'P/1-C'. Thereafter, the evidence of Plaintiff's 2nd witness namely Muhammad Saleem ['PW-2'], was recorded on 12.11.2013 and thereafter, Plaintiffs side of evidence was closed. 18. The Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif] thereafter, was posted for Defendant's side of evidence on 02.12.2013. On 02.12.2013 and thereafter, on so many dates right upto 27.08.2014, the Family suit was adjourned for one reason or the other. On 27.08.2014, an Application for re-opening of the Plaintiff's side of evidence was filed, as then, the Plaintiff wanted to examine a 3rd witness namely Muhammad Shafiq. On 05.10.2019 the Defendant filed, objections in response to the Plaintiff's such Application. On 29.01.2014 the said application was heard and allowed. For ready reference, Order dated 29.01.2016 is reproduced herein-below:- "By this order, I intend to dispose of an application for re-opening the side of the Plaintiff to examine her witness namely Muhammad Shafiq, which is filed by Plaintiff through her counsel notice Of said application was duly served upon defendant learned counsel for Plaintiff contended that this Hon'ble court may be pleased to reopen her side of Plaintiff of witness her side of evidence and permit her to examine her witness namely Muhammad Shafiq in this suit as earlier due to bonafide mistake of advocate for Plaintiff he closed her side of evidence but later on when the Plaintiff informed her advocate that she wants to examine her important witness Mahammad Shafiq who is brother of the Plaintiff and he can depose properly in respect of documents which were filed by the defendant in this case with his written statement hence he is important witness therefore he may be examined in the interest of Justice earlier her father was cited as such witness but he then. Hence, now her brother is important witness in this case. Learned counsel for the Plaintiff relied upon the case reported as Umar Hayat v. Additional District Judge and others (2004 SCMR 1637 Supreme Court of Pakistan), Mrs Shahnaz Begum and 4 others (1995 CLC 327 LHR), Mrs. Hidayat Khatoon v. Munir Ahmed and others (1999 MLD 2153 KIM), Abdul Khaleeq v. Rashid Ahmed (1999 MLD 2156 LHR) respectively. On the other hand, the defendant filed counter affidavit through his counsel wherein he submitted that application for reopening the side of the Plaintiff to examine her witness is not maintainable as the same had been filed without mentioning the proper section of law. He next stated that the name of deposed witness had not been mentioned in the list of the witnesses of the Plaintiff. He next submitted that reason had not been explained in the application that the said witness is necessary and affective. He next submitted that the application is only filed to pressurized the defendant. He next submitted that the said application had been filed without any valid reasons. He further stated that the said application had been filed without any valid reasons. He further stated that the said application is groundless and the same is liable to be dismissed. Considering the above facts and circumstances, it would be better to give ample opportunity to the Plaintiff to contest the matter rather than to decide the case on technical ground as law would favour adjudication onth _______
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merits. With regard to contention of production of the witness the West Pakistan Family Courts Act, 1964 could not be confined to Plaints only both Plaintiff and defendant could be allowed to produce evidence beyond the list appended with the pleadings. Thus, keeping this view in the interest of justice and to decide the case on merit the Plaintiff application is hereby allowed subject to payment of a sum of Rs.500/- as cost by the Plaintiff to the defendant and order dated 12-11-2013 is hereby recalled, the Plaintiff is also allowed to produce the witness namely Muhammad Shafiq to establish her claim. The Plaintiff is directed to produce the witness till the next date of hearing without fail. [Emphasis Supplied]." 19. On granting the aforesaid Application on 29;01.2016 the 'affidavit-in-evidence' of Plaintiff's 3rd witness namely Muhammad Shafiq son of Khalilur Rehman ['PW-3'], was filed on 16.02.2016. Lateron, on 17.04.2016, his evidence was also recorded. Thereafter, Plaintiff's side of evidence, i.e. after recording of Plaintiff's evidence ['PW-1'] and other two [2] witnesses i.e. ['PW-2' and 'PW-3'], was closed in presence of Defendant's counsel and then, the case was put-up to 23.04.2016, for Defendant's side of evidence. On 23.04.2016, for want of Defendant's side evidence, the case was put-up to 29.04.2016. On 29.04.2016, again none was present from the Defendant's side. Nonetheless, then, also as 'last' and 'final' chance, the case was adjourned to 16.05.2016. Once again for the same purpose, the case was adjourned to 30.05.2016. Again on 30.05.2016 as a 'last' and 'final' chance, the case was adjourned to 21.07.2016. On 21.07.2016, again the case was put-up to 11.08.2016 for Defendant's evidence. Even, thereafter again and again, the case was posted/fixed for Defendant's evidence that is to say from 11.8.2016 till 26.11.2016. 20. From the record, it reveals that later on, the Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], was transferred from the Court of learned VIIIth Family Judge, Karachi-West, to the Court of learned IXth Civil/Family Judge and JM, Karachi-West, vide order dated 23.11.2016, passed by learned District and Sessions Judge, Karachi-West. On transfer of the suit, when the Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], came-up before the Court of learned IXth Civil/Family. Judge and JM, Karachi-West, on 02.12.2016, for Defendant's side of evidence then, again, as a 'last' and 'final' chance, the Family Suit, was adjourned to 16.12.2016, for recording of Defendant's evidence. Even thereafter, on 10.12.2016, the Defendant, failed and/or avoided to come forward and record his evidence. The Defendant's side of evidence, under the foregoing circumstances, was 'closed' and resultantly, the suit was fixed on 14.12.2016 for 'POST TRIAL PROCEEDINGS'. Lastly, on 17.01.2017, when the Family Suit No.1653 of 2012 came-up before the Court of learned IXth Civil/Family Judge, Karachi-West, then, the 'Post Trial Proceedings' were declared as failed. For ready reference, order dated 17.01.2017, is reproduced herein-below:- "Case called. Counsel for plaintiff is present. None is present from defendant side. Perusal of record shows that matter was fixed for post-trial proceedings but neither Plaintiff nor Defendant appeared before this Court. Therefore, post-trial proceedings failed. Now the matter is fixed for final arguments on next date of hearing." 21. As a routine, even on 17.01.2017, none was present from the Defendant's side. Nonetheless, then, the case was posted for 'arguments' on 17.01.2017. Per record, thereafter, for the same purpose, on nine [9] occasions i.e. from 17.01.2017 to 17.04.2017, the case was adjourned. As per earlier 'LATE DIARY' dated 10.12.2016, the Defendant [Petitioner herein], had opted to file an Application for re-opening of…
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