Jehangir vs Mst. Aneela etc.

2023 M L D 316

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

JEHANGIR---Petitioner

Versus

Mst. ANEELA and others---Respondents

Writ Petition No. 2062 of 2015, decided on 6th September, 2022.

Family Courts Act (XXXV of 1964)---

----S. 5---Relief beyond pleadings---Respondent/wife sought dissolution of marriage on the basis of Khula---Trial Court dissolved the marriage subject to return of dower amount received by respondent/wife as Zar-e-Khula to petitioner/husband---Lower Appellate Court modified judgment of Trial Court and set aside condition of payment of Zar-e-Khula---Validity--- Pleadings ensured that each side was fully alive to the questions that were likely to be raised--- Parties had an opportunity of placing relevant evidence before Court for its consideration--- Lower Appellate Court could not exercise discretion to set aside any order which was not before it as a subject matter---Relief sought beyond pleadings or in variance to pleadings, could not be granted---High Court set aside order passed by Lower Appellate Court as the same was illegal and irregular---Constitutional petition was allowed, in circumstances.

Sardar Muhammad Naseem Khan v. Returning Officer, PP-I2 and others 2015 SCMR 1698; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Muhammad Mumtaz Khan and 5 others v. Muhammad Amin 2017 CLC Note 93 and Mohammad Uris v. Zawar Haji and 3 others 2017 CLC 1090 rel.

Tahir Mehmood Abbasi for Petitioner.

Muhammad Imran Khan for Respondent No. 1.

ORDER

JAWAD HASSAN, J.---Through this writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") the Petitioner has challenged the judgment and decree dated 07.05.2015, passed by the Additional District Judge, Rawalpindi, camp at Murree, whereby the judgment and decree of the Judge Family Court to the extent of return of amount of Rs.100,000/- as "Zar-e-Khula" granted to the Respondent/Plaintiff was modified.

2.Learned counsel for the Petitioner submits that the learned Additional District Judge vide impugned judgment and decree accepted the claim of the Respondent No.1/Mst. Aneela for recovery of maintenance and modified the order of learned trial Court for return of gold ornaments and ignored the fact that the Respondent No.1 was proved disobedient wife and inspite of best efforts on the part of the Petitioner she, upon the instigation of other people, prolonged the Ghair Abadi and thereafter obtained decree on the basis of khula by concealing the actual facts from the Court. He adds that Petitioner provided all necessities of life and well maintained her and minor, but the Respondent No.1 herself opted for separation on the basis of Khula. He adds that the impugned judgment is clear violation of section 10(4) of the West Pakistan Family Courts Act, 1964 [amended through Family Courts (Amendment) Act, 2015] (the "Act").

3.Conversely, Mr. Muhammad Imran Khan, Advocate has objected to the maintainability of this Petition and vehemently defended the impugned judgment.

4 Heard. Record perused.

5.The record of the case particularly the prayer clause of the plaint, reveals that the Respondent No.1 herself claimed dissolution of marriage on the basis of Khula and the same was then decreed by the learned trial Court vide judgment dated 01.07.2012. Learned Judge Family Court while deciding the issues Nos.1 and 2 specifically held that:

"It was the case of the defendant that at the time of marriage dower between the parties was settled Rs.100000/- and the same was paid at the time of nikah. In this regard the plaintiff herself produced her nikahnama Exp.2. That Column Nos. 13 and 14 of nikahnama clearly reveals that dower was settled Rs. 100000/- and the same was paid at the time of marriage between the plaintiff No. 1 and the defendant. It was the case of plaintiff No.1 that during the subsistence of the marriage the defendant taken back the gold ornaments which were given to her in form of dower. According to available record documentary evidence proves that plaintiff No.1 received her dower Rs.100000/- in form of gold ornaments but she failed to prove that the same was returned back to the defendant in this way the defendant has successfully discharged the onus of proof the issue No.1."

Consequently, the Judge Family Court decreed the suit of the Respondent for dissolution of marriage on the basis of khula and held the Petitioner entitled to recover Rs.100000/- from the Respondent No.1. But, the learned Additional District Judge modified this part of the judgment, which is impugned herein.

6.Law has always aspired and the Apex Court has consistently held that the Courts cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish a particular irregularity/illegality. Moreover, parties cannot be allowed to blow hot and cold in same breath and cannot be allowed either to move to and from amongst their pleadings and claimed reliefs at different stages of proceedings at their own options. It was Respondent No.1 herself having pleaded cause for dissolution of her marriage with Petitioner, that too, on basis of khula. There can be no dispute to the settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Thus, a decision of the case should not be based on

grounds outside the pleadings of the parties. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. This principle is reiterated in esteemed judgment in case titled Sardar Muhammad Naseem Khan v. Returning Officer, PP-I2 and others (2015 SCMR 1698) reading that: "A party cannot travel beyond the scope of its pleadings." Further, again it is held in case titled Muhammad Iqbal v. Mehboob Alam (2015 SCMR 21) reading that: "it is also settled that no litigant can be allowed to built and prove his case beyond the scope of his pleadings."

7.It is a settled law that the pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the Court for its consideration. The Court cannot exercise discretion to set aside any order which is not before it as a subject matter. It is now well-settled principle of law that the relief sought beyond the pleadings or in variance to the pleadings would not be granted. Reliance is placed upon esteemed judgment in case titled Muhammad Mumtaz Khan and 5 others v. Muhammad Amin (2017 CLC Note 93) reading that "The relief granted by the High Court is beyond the pleadings which is not warranted under law". Moreover, it has also been held in case titled Mohammad Uris v. Zawar Haji and 3 others (2017 CLC 1090) that "even no relief could be granted beyond pleadings and judgment cannot be based upon un-pleaded case."

8.Thus, the argument advanced by learned counsel for the Respondent has no substance, rather is completely contrary to the record, therefore, it is held, that the learned Judge Family Court has rightly dissolved the marriage of the Respondent No.1 on the basis of khula consequent upon her own pleadings and claim.

9.For what has been discussed above, I find material illegality and irregularity in the impugned judgment and decree dated 07.05.2015, passed by the Additional District Judge, Rawalpindi, camp at Murree, hence the same is set aside and the judgment and decree of the learned Judge Family Court is restored. Consequently, this Petition stands allowed accordingly. No order as to costs.

MH/J-10/L Petition allowed.