Sajidullah Vs Mst. Shakeela Naz

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Write Petition No. 325-B of 2013

Write Petition No. 34-B of 2014

JUDGMENT

Date of hearing 28.01.2014 .

Appellant-Petitioner: Sajid Ullah S/O Muhammad Ali Shah, By Muhammad Qasim Khan & Wajahat Ullah Advocates.

Respondent: Mst. Shakeela Naz & Tanveer Iqbal by Muslim Jan, Advocate.

JUDGMENT

MUHAMMAD YOUNIS THAHEEM, J.- Since the instant W.P No. 325-B of 2013 and W.P No. 34- B of 2014 are out come of one and the same judgments of lower courts, therefore, by way of this single judgment we intend to dispose of both these petitions.

2.Briefly stated facts are that Mst. Shakeela Naz, respondent/wife (hereinafter called the respondent) filed a family suit in the Family

Court/Civil Judge-III, Takht-e-Nasrati, Karak against the Petitioner/defendant/husband (hereinafter called the Petitioner) for:

i. Recovery of dower amounting to Rs.1,50,000/-along with recovery of to Rs. 95,000/- ii. Recovery of dowry articles amounting to Rs. 150,000/-.

iii. Recovery of:

(a)maintenance allowance at the rate of Rs. 10,000/- per month from 22.04.2012 till the period of lIddat; and

(b)maintenance allowance for respondent No. 02 (minor son) with effect from 11.08.2012 onwards at the rate of Rs. 3000/- per month till the age of majority with 20% annual increase.

iv. Recovery of medical expenses amounting to Rs. 20,000/-

3.The respondent in her plaint pleaded that her marriage was solemnized on 28.01.2011 in lieu of dower amount worth Rs. 1,50,000/- and the said amount was received by her father, who spent the

same on preparation of gold ornaments for the respondent. After her Rukhsati, the relations between spouses were cordial, however, after few months of the marriage, the respondent came to notice the evil intentions of her father in law i.e. the real father of the petitioner towards. She informed and complained about the harassment in the house about the same evil overture through oblique references and signs of his father. On failure in his evil desires her father in law compelled the petitioner to oust the respondent from the house and on 22.04.2012 she was ousted, gold ornaments and dowry articles were forcibly taken into his (petitioner) possession.

4.On appearance, the petitioner/husband contested the suit by filing written statement and controverted the claims by denying the allegations leveled in the plaint.

5.After failure of pre trial reconciliation efforts made by the learned Judge Family Court, on divergent pleadings of the parties the learned trial Court framed 03 issues apart from the relief. After recording of evidence produced by the parties, the learned trial court decreed the suit in the following terms.

“Juzz Alif of the plaint for the

recovery of dower amounting to

Rs.1,50,000/- stand decreed,

however, plaintiff prayer for recovery of fine amounting to Rs. 95,000/-

stand dismissed.

“Juzz Bay, of the plaint for the

recovery of dowery articles stands

dismissed.

“Juzz Jeem”, Suit for recovery of

maintenance allowances from

22.04.2012 to 06.05.2012 at the rate of Rs. 2000/- per month is granted.

In addition to this, plaintiff is also

entitled for the maintenance

allowance till the completion of Iddat for next 03 months at the rate of Rs.

Moreover, plaintiff No. 02 (minor

son) is also entitled for maintenance allowance at the rate of Rs. 3000/-

per month from 11.08.2012 till he

attains the age of majority with 10% increase per annum.

“Juzz Daal. Of the plaint for

recovery of medical allowance is

partially accepted and Rs. 10,000/- is granted to the plaintiff. No order as to costs.

6.Feeling aggrieved from the judgment and decree of the Judge Family Court Takht-e-Nasrati, Karak, both the parties preferred their appeals before the Appellate Court and the learned Appellate Court after hearing both the parties, partially accepted the appeal of the defendant/petitioner. Resultantly claim

of the respondent for recovery of treatment expenses was dismissed, while to the extent of remaining Reliefs both the appeal were dismissed vide judgment and decree of the learned Appellate Court of Additional District Judge, Takht-e-Nasrati, Karak dated 28.08.2013.

7.Dissatisfied with the said judgments and decrees of Family Courts as well as Appellate Court of Additional District Judge, Takht-e-Nasrati, Karak, both the parties, through separate petitions invoked the constitutional jurisdiction of this Court.

Therefore, both the petitions are going to be disposed of through this single judgment.

8.Learned counsel for petitioner confined his arguments to the extent of divorce as Khulla and argued that with consent of both the parties arbitrators were appointed, who awarded decision and by acting upon the decision of the jirga the

petitioner divorced his wife/ respondent herein despite the fact that the petitioner was willing to keep wedlock intact with her/ respondent, but the respondent was bent upon to obtain Talaq at any cost even on the basis of Khulla and when respondent / wife succeeded to obtain Talaq on the basis of Khulla, she cannot afterward resile from it. This Talaq was pronounced upon the decision of the Jirga/Arbitrators and the proceedings of Jirga/Arbitrator have been proved through evidence, therefore, she is not entitled for the recovery of dower amount on the pretext that she has not accorded her consent for said Khulla and as such the decision of jirga is not binding on her. Learned counsel for petitioner pressed hard for the acceptance of petition and for dismissal of the suit of respondent.

9.Learned counsel for the respondent / plaintiff confined his argument to the extent of the medical charges and contended that it is admitted fact that after desertion the respondent gave birth to a male baby respondent No. 02 named as Tanveer Iqbal and further supported the judgments of the two courts below with the prayer that the entire suit be decreed as prayed for. He further argued that learned trial court had rightly decreed the medical charges spent on delivery of the said minor respondent No. 02 by appreciating the facts, evidence and law but learned appellate court on wrong assumptions reversed the finding regarding medical expenses. Learned counsel for respondent by responding the counter appeal of petitioner with vehemence and argued that after ousting respondent/ wife from the house of the petitioner, she never demanded Talaq nor participated in arbitration/Jirga proceedings and

never accorded any consent to the jirga members for obtaining talaq on the basis of khulla. It was lastly argued that the petitioner/ husband deprived her from dower amount, which was her legal right, hence, appeal of petitioner is liable to be dismissed.

10.Arguments of the learned counsels for the parties heard and record perused.

11.Learned counsel for the parties in both the petitions advanced their respective arguments to the extent of findings on issue No. 04 and 08. For convenience issues No. 04 and 08 are reproduced as:

Issue No. 04.

Whether the plaintiff is entitled for recovery of dower amounting to Rs. 1,50,000/-?

Issue No. 08.

Whether the plaintiff is entitled for recovery of medical allowances amounting to Rs.

12.Legally Khullah is the right of wife to seek it in lieu of returning back benefits which she had received from her husband through Court, it cannot be given without the consent of wife or by force.

Decision of arbitrators has no sanctity at all in the law, hence, divorce on the basis of khulla could not be awarded by arbitrators nor can it be imposed upon her/ respondent, hence, the divorce pronounced by petitioner be treated as Talaq in simplicitor and not on the basis of khulla. In this respect reliance can be made on case law cited as

i. PLD 1983 S.C 169 Case titled as Dr. Akhlaq Ahmad VS Kishwar Sultana and others,

ii. PLD 1997 Karachi Case titled as Aman Ullah VS Mst. Husna Bibi.

13.In the instant case from the record it reveals that the petitioner has pronounced divorce, as per his stance, on the basis of “Khulla” by obeying the decision of Jirga/arbitrators resultantly the marriage

relationship between the parties came to an end. In family matters Islamic provisions relating to marriage, maintenance and Talaq are governed and regulated through West Pakistan Muslim family laws Ordinance 1961. It is established practice that in Pakistan the exercise of right of Khulla by wife is subject to the satisfaction of the judicial conscious of the Courts. Like Nikah, in case of Khullah the free consent of the lady/ wife is mandatory.

In the instant case record divulges that the petitioner averred in written statement that he pronounced Talaq on the basis of Khulla by obeying the decision of Jirga / arbitrators. This fact has also been proved through the evidence on record and it is further proved from record that no free and independent consent from the wife/ respondent was obtained. So, the Courts below after appreciating evidence and law had rightly concluded that the divorce pronounced by

the petitioner is an ordinary Talaq and not Talaq on the basis of Khulla. Hence, respondent / wife is entitled for recovery of dower amount along with other Reliefs.

14.Such like unlawful decisions through Jirga system are practiced in this area of Pakistan but when some provisions of law are violated by the Jirga members or arbitrators that could not be protected. In this regard guidance can be taken from the case titled as “Shazia Bibi VS State” 2004 P.Cr.LJ 1523 (b), (d), (e), (g). The principles laid down in the above cited judgment regarding Jirga decisions and their legal position are profoundly enunciated as follows:

(b)Jirga---

.......Jirga system is not a creation of constitution or law. Jirga, therefore, is not a parliament and they cannot declare a valid marriage contracted under the provisions of the relevant law as invalid or unlawful...

(d)Jirga---

......Not protected by any law......Functions which are exclusively to be performed by the courts of law are being performed by the jirgas thereby usurping the power of the courts.....

(e). Jirga---

...Compromise effected by Jirga has no protection of law..... Matters referred to a Jirga to settle the dispute or effected a compromise between the parties without the permission of the Court, then such jirga will not be having blessing or backing of the Court, therefore, action will not be protected by the law.....

(g). Jirga---

..............are against the trichotomy powers of the constitution and are exercising the power of legislature, judiciary and executive enshrined therein and in this way are undermining or attempting to undermine the provisions of the constitution.

So, in the light of above cited judgment the plea of petitioner that he had divorced the respondent on the basis of Khulla upon the directions of arbitrators is not tenable under the law.

15.Talaq through Khulla can only be pronounced with the intervention of the Court. In the instant case according to the evidence petitioner pronounced Talaq upon the directions of the arbitrators without the consent of respondent, hence, could not be treated Divorce on the basis of Khulla. In this respect reliance is made on case titled “Zeb Sar Vs Mst.

Kosar and 3 others” (PLD 2004 Peshawar 15), wherein it is held:

“...........In fact this right is

reasonably controlled and is dependent upon scrutiny of Court competent to decide in the matter after properly satisfying itself about existence of reasonable circumstances whereby

separation is being claimed, so as to terminate sacrosanct relationship of the spouse for allowing wife authority to

exercise this right there must exist reasonable proof sufficient for the satisfaction of Qazi showing

incompatability of the temproment

including total lack of sympathy

between husband and wife resulting in resistance to mutual adoption..........”

16.After deriving wisdom from the above cited judgment we hold that petitioner announced Talaq simplicitor as the decision of Jirga could not be equated with the Court of law.

17.The petitioner has admitted the fixation of dower amount worth Rs. 150,000/- and it is further admitted that during arbitration proceedings this amount was received back. It is settled law that admitted facts need not to be proved. So it is abundantly established that the respondent is entitled for the decree of dower amount worth Rs.

150,000/-. The learned judge Family Court-III, Takht-e-Nasrati, Karak, has rightly appreciated facts, circumstances, evidence and the relevant law while deciding issue No. 04.

18.So far as the issue No. 08 regarding medical treatment charges is concerned, the respondent could not bring on record iota of evidence in this respect, except her statement. No medical prescription, receipt, relating to payment of medical treatment charges have been produced and proved on record. The learned trial court to this extent has erred in law by decreeing the medical charges, while learned appellate court has rightly appreciated the evidence on this issue and reversed the findings of learned trial court regarding treatment charges.

19.For the reasons discussed above, findings of learned appellate court are based on

proper appreciation of evidence and in accordance with law need not to be interfered with, therefore, both the writ petitions being bereft of merits are hereby dismissed. No order as to costs.

Announced.

JUDGE

JUDGE