Shah Hussain VS Mst. Nadia

't v (D -b*- IN THD PESHAWAR HIGH COURT BENCH MINGORA / DARUL o^ts0

- I)ISTIUCT AT'SWAT

Writ Petition No. 6t4 --.', norc Usttbt 6_,rrlif, l* Tchsil Matta' D istric t Shah Hussain S/o Anrroz Khan alias Nany, r/o Sanrbat' Swat........... """.'".'""'Pctit ioner.

Vcrsus

I Mst. Nadia Khan D/o Mohanrmacl Ali, R/o Gharib Abad, Baitlara, Tehsil Matta, Srv:rt.

2 Civil Juclge-I/Family Court/lllaqa Qazi, Matta, Srvat itional District .Itrdge/Judge Fanrily Court, Tehsil Matta' rict Srvat..... """""""llcsporrtlents'

WRTT PETITION UNT)ER ARI'ICLE 199 0F

THE CONS TITUTION OF THII ISI,AMIC

REPUBLIC OF PAI(Ii]TAN 1973 A G AIN S T

THE ORDE R, JU DG MIINT AND DECREE OF

THB LBARNEI) LO\VER COUITTS CIVIL

.ruDG E-I DATI],D 09 -02.2016 ANI) AD.I DATEI) 3l -08-20 16 TO TI{E Ii) TENT OF G RANT OF

DI]CREE FOIT FUIITFJER I 4 TOLAS GOI,I)

I}ECAUSIi RBSPONDE ]\T NO.I N oT )VEI)

HEIT CASE TI{ROUGI] C IT.UEI-,TY ANI)

DBC REE HAS BEE N (;ITANTEI)

'ro HEIT ON

THE POINT O F I(HUI,A \VHILI'

'fHIt RIISI' DOWR YANDM AINTENA NCE BIi S ET ASIDIi

WHIC H IS ALSO NOT PI'RU SET).

i

P RAYDR:

On acccptitncc of this u'rit pctitiorr tlrc orclcl ol (he

tou'cr courts to thc crtcnt of t'cttrnting ot l-l/2 tolas :{oltl bc

upheltl u'lrilc thc tlccrcc for tltc tlorvcr atrd nlaintcnattce allou'ancc gr:rntccl in favor of rcspontlctlt No'l nral' l<intlll' bc sct:rsitlc.

RBSPE CTFU LLY SH IIWETI{:

l.Thatthet.espotrcletttNo'lrvasllleclastlitbcar'irrgNo.]0ill.C.ltlr-dissoltrtiorr. dorver.nlairrtetratrccatrrlr|orr,r1,'.rrticlcs.itrtltecottrtofCiril.Itrclge-l/Jtrclgc i

15.(Copi' ol' 1;lairrr is irrlne\ure FanLily court. Telrsil Matta, Srvai on l5-0(r-lt0

F|LEET'ODAY.

ocT 20 "A').

l,

JUDGM SIIEPI

IN THE PE ARIIIGH COURI

MINGORA BENC an-uueAzA),swAT (Judicial epartment)

W.P. No 621-W2016

With C.M I{o . 9 41 -M.12016.

JUDGMENT

Date of hearing: 24.ii2017.

Petilioner: - (Shah Hussain) bv Mr. Abtlul Jal Advocate.

Resoondent:- L l\tudid bv Mr. Ha vat Ali, Advocate.

MOHAMMAD IBRAHII' N. J.- Where there are prayers (Alifi stit lbr dissolution of marriage on account of m;rltreatment, cruelty and contracting of secontl marriage (Bay) recolery of dower 13 Yz tol.asigolden ornaments, (.Iirn) recovery of household dowry articles price of which is amounting tr:, Rs. 4, 32,000/- and (Dal) recovery of maintenance allowance , @ Rs. 10,000/- per month for the last 5 msn(h1r till conrpletion of lddat p:riod, the suit was fileil by Mst. Nadia against her husband fihah Hussain.

t^ e. , That Nikrih of Mst. I[adia with Slhah Hussain took place oli l't September 2013 v;hile the marriage was solemnized in October 2014.

ATTES',IE

,.,,iillllil".t,ur

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During the subsistence of this marriage lter l-rusband Shah Hussain married another wom;tn, she being rnaltreatefl with utrncst cruelty it came to a climax of devclope<l 'hatted, shei has

come to the status ,;6 pslrnanrintly separate herself and to break her wedlock as l1o nl,lre ready to live with hel husband within the linrits prescribed by the Atlah Ahnighty and thus seeking dissoltrtion of her marriage. She being entitled to the dowry :rticles, p;u;t maintenirnce and dower in the shayl: of golden ornatnent:i, so a decree has been pra.led for accordingly.

3 Shah FIusr;ain, the htisband of Mst.

Nadia has controvet:ted her claim by fi ing written statement raising various Iegal and factual grounds. The '.earned Farr-rily Court iwas pleased to frame the lbllowing i";sucs out oli the

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u)' divergent pleadings ol'the parties' which are:tl 6Lr,Jili

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4.Mst. Nadia aPPeared as PW-l earlier filed uc64n'rit su;rpotted by PV/-2 Farmarr Ali who has also submitted aflhdavit in sl.rape of Ex. PW-?./1, Mulrammad IhUat appeared as PW-3, lris offidavit is placec',oir record as Ex. PW-3/ j On thc o'Jrcr hand, fihah Hussain appeared as DW'l v"'[ro 'has categorically admitte,l to ltave remained in thc wedlock with furthel disclosurelthat his witc is Mst. Nadia and lie is still insiste'l to keep lrtrt' as t *)- I f his wife as he has n lr;i. ot' love and respeci for her. He further said like that he has contracted second tnarriage on his wilt irrstancp and she was consenting part) in respect of l1i5 5!<;ond

ANESTED

lr fr.,#J, res rlrL.,,a r liigtl Corin .\ Ij..,i1,; Eench U,lr.Il.e:lii, StrAL

marriage. He lastly r'equested for dismissal of the suit of Mst. Nazi:r and prayed for decreL of conjugal rights in his favour., DW-l tihah

I

Hussain is supported by Aftab. who recoirled

L

I

his statement as DW-ll, whgrhas narrated facts 't.,,i regardlng the contrat;l of marriige in betva:en 5 After clc;ure of : evidenop of the either part by way of r;uit No. 3d/FC of the year 2015, the learned Faurily Judge was pleased to announce its verclict in a way burden of proof of the issue No. 2 was placed on Shah Hussain, who could not discharge it posilively, thus't:his t issue was decided in negative, issues No. 3 & 4 are of much significdnce, whereas the findings would speak off that out of 15,lolas goiden ornaments only I 7, rolas golden ornambnts were delivered to Mst. Nadia ancl tl-re rest 13 % tolas golden ornamonts are st.ill outstanding I LJ against - Shah Hussain. Under lhe findingr; on issue No. 5 which is also of paramcunt importance and on the basis of detailed vetsiou though there deve,loped str:rined relaiions

ATTESTED

,J1

Exarn{rr{r Pcrhr \rJr Hiqh Coirn Bench il4rclorr,Drr.ul.Ql:0, 5wct.

between the parties. Wife grown hatred towa,;-ds her husband and it u,as to the cxtent that orrce Mst. Nadia advarced depr.ession u.ho committed stricidal attempt by taking pills and stabbed helself by r:ausing iniuries on her person. Then the silriation fuilher aggravated ' and even Mst.Nactia refused herself lbr maintaining the husband and ',vi',e relationsrlrip.

The cruelty is not str,rported by some medical evidence or police rr,port. The Dissolution of Muslim Marriages,A.ct; 1939 and Muslinr Family Laws Orclinan:e 1961 are, not applicrrble to this area, therefi:re on the basis second marriage decree fol dissoluti,:rn cannot. be granted. Hence it v,as thought for that the relationship between the parties reached t<, al'r extent that the marrirge was dissolved on' the basis of Khulla and in the eveni thereof it rvas directed that the gol<len ornaments weighirrg 2 {^ Y, tolas are ..(till lying with the Respondent/Plaintiff, the same be returned to the Petitioner, while rest of 13 1/z tolas gqlden omaments were to l.re waived .off as she lrad

ATTES

D

Ex;r tit r Pes lr;lr,y,1r

f.l.: r.1s.;.1 g;, ilh (; o rn Donch rrl.Q.r :P, Swal

never been given this extt:nt of golden ornaments. On issue l.tro. 6, the learned jrrclge Family Court while delivering itp findings has entitled Mst. Nadia to dowry .articles on the basis of list (Ex. PW-i/3) being lurnished ripm serial No. I to 6 & 39 amounting; , to Rs. 3,82,000/- while to the extent.of rest oi the articles under serial }.lo. 37 & 38 she has not been held entitled to its return. lJnder issue No 7 Mst. Nadia was not enlitled to ,any maintenance as she being unablt: to perfornr her conjugal rights, however. maintenance allowance for an anount of Rs.2,000/- was fixed till expiry of thr: period of iddat. On issues No. 9, 8 & l, thc lerrned Judge Family Court was further pleased lraving the cause of ar,tidn to the extent offindings in the already discu.ssed issues, Mst. Nadia u'as neither entitled to )- previous maintenancr-r and for t.he recovery of f Haq Mehr and then on the ground of disrnissal of marriage on account of cruelty disentitlec her to such decrees. Whiie relief would lean tc thc extent of decree fbr dissolution on accourt of ArrEsrJT

',;r:lifuq'l[tj['s*

I

Khulla in lieu where of she has t.o return I % tolas golden ornalnents to lthe Defendant/Petitioner while the remaining 1.3 % tolas golden ornaments were waived off bping not received by lhc Respc,ndent Noi I (hereinbefore called as Plaintifl). Maintenance allowance of Rs. 20001- per month, till completion of lddat i,eriod aud dowry atticle as per list Ex. PW-1/3 artounting trt Rs. 3,82,C()0/- ,however the suit for conju6iirl rights ,rvas dismissed loaving tht: patties to bear their own costs.

6 Next off, the matter was takert uP before the Court of lt:arned Adrlitional Dislrict Judge/Izafi Zila Qz'zi Matta 'Swat thrctugh Family Appeal No. lglFCA ofithe year 2016

I

tiled as " Shah Hussain vs Ms L NadiaKhan" and Family Appeal I'{o. lOi FC-IA of the '/ear 2016 titled as "Msi'. Nadia l{han us ,Stah U,) Hussain". Iloth the jrppeals were consolidated for delivery of its findings and the final ver;dict has come up in a wrry that tire findings uhder Appeal No, giFCA were maintained tol the

ATTESTED'

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rr.,rJ,i.'

Perhrrv:rr Hirlh Cdu'r 8e ncn ti ',;: O5ra, Swat' "rco.r'0.'',

-f): -J.tr

extent of findin of learned Judge Farnily

I

Court while app N,r. 10/FCA was dismisse,l.

I Mst. rrvesra was diiected to se:e[< her recovery of2 las golden orr,aments and to this extent findin oI the learnec judge Farr ily Court were modifi and the app(:al bearing hlo.

9ffCA was decid ar:cordingly. An amounl. of Rs. 3,93,000/- w dr:,:reed in re:;pect of do'vly articlcs in favour f llespondent lrlo. I . In :;:ch terms both the ppr:als 'were decided. I4st.

Nadia filed execu iorr proceedin;3s bearing No 5l/10 instituted or 2692016 ar:.d by the older dated 23.12.2016 n ;atisfaction of the dectee- holder and recordi g ,statement trf the judgnrcnt debtor irimself, hirmmad Ile.ras Bailiff was given task and ll the dowrl articles rvere handed over to th dr:cree-holder and there rvas no need to furthe p ioceed witlr the execution s^ proceedings sol V IAS consigned tb Re:ord Roorn. Whereas S alr I{ussain is still optirr'istic for the grant ofd rer: of conjugal rights as,rxell as to be entitled lli % tolas gglden ornarrents as the'decree was rnted on aci,lount of Khula,

ATTESJED

r *.rt,1",' Pr:* h;ri^rJr tliriir t.lcrrrl Bench lrlr:.1,'r., Lr. i: Ui.LJi,:iir, SwAt.

t..

these claims be r krrt:d to hinr has preferred 1 ".'

this W.P. No. 62 -lr{ of 2016 with C.M ]rlo.

947-W20l6,whe in the following prayer ir; set ,l ln:-

"Tlterefore, it k humbly pm1,ed before thk honourable Courl 10 acte/ ttlis wril petilion and m kindll, fig set aside lhe oiders qf the lo Courls and be dismissed , the plaint of e Respondenr' No. I qs prayed fon Any lie.f if any mty kitttlly be dlso granted in wtur of lhe Pelilioner."

8 Havin h:ard arguments of lear:ned counsel for the pz,rties, record with (:heir valuable assistance gr,ne through.

9 While e'*,eloping arguments ol' the learned counsel fo the palties, there is only, one controversy left be ind between l.he parties iis to whether 13 Y2 I:rs golden. ornamenl; if delivered to Mst. aoia are to be: restored tc her g^ ;LJ previous husband h:rh Hussain:or else she has received | % tola z'nd that to,: is returniiltle, even the condition el with the glant of Khula in favour of Mst. dia against'Shah Flusi;ain.

ArrEv+D -l.l c xanilner Peshav,r;rr Hrqh Court Bench Pr rir'.i or.r i Jrr. r: i-O J2a, S r aI

Whether under th prayer: in this writ petition t the same can be ,:n up for l-avour then the limitation and keep n;3 in view the'other aspects formulated upon th r,vidence lerl by'the partics.

It is absolutely a g pel princille Ibr dissolution of marriage effect d tnrough K:hula is neither revocable nor ap rl:rble and only decibion regarding dower is appealable. lt is as attached condition that the ant of l(hula in this ca:;t: it was at best though 1r'r to file writ petitiolr by the said Shah Hus a:.rr, but should have never filed his Family ':urt appeal bearing.l.,Io. l0mCA before th lpamed appel late Court as during subsistence f,the appeali before the Baid learned Court whe the suit No. 30/3 FC rwas decided on 09.0 :.016 the , appeal bging preferred on26.02 0i6. its decision is follovved I on 31.8.2016 mea irrs therebv that suffiaient I loss of time occu e<i for more than 6 months

I ,)-

s-^ ()n over elapsed. This writ and 20 days have

petition is hit by t: doctrine of "Laches" as Shah Hussain or s, counsel must be vigllant that the Farnily p;real bearing No. 10/1.;CA

ATTES?ED

JI

e *.,{in[.

Pe shiwr r tligh C 6un Bendr lVlinqor.11Dlr.ul-O;za, S!,!'.rt.

ll was not competen in its present form whir:h i course has now n adopted after lapse cf time. In this resp t, r,:liance is placed on the case law cited PLI 2012 Lahore I.l3 tan Bench Multan *LIsL Aamna Abdullah vs e I'amilv Courl , Multan and other", wherein it o r;erved as under:- "Wltereas iu of con rilit'uLlot1 a I pelilion lapse o.f lime or que:;lion of laches is to b eximinc.l on equilable principles for ntasor, ,al exercise of cottstilulional jurisdiction is alwoys in nolute o.f equiloble relief. Pelilioner ha invoked constilulional .iuristliction Iligh Courl afier a lapse of ur' yearc. P,zliliouer itrolcittg co tt)l,ttionol is gltiltlt o.f contumocious lethargy, inaction, laxily and "r)SS negligence ,t, i

,r)' enforccment her righl-Petiliota was lialtle. to be nissed on ground qf laclrcs. Petiti tns distttissetl.

The mo t :rrportant detcrmirration is the question that hen the petition is hit by

l2

doctrine of "Lach ", the effecl. vrould be that when the High Co on finding;s constitutional petition to be b , by laches, rvould not be required to decide on merits the issue ra ised therein. In this rega reliance is placed on ZA2 s 004 "Muh mnnd Din vs Abdul Gliani and anolher".

10.By the term Khula it meanlr 'to extract one thing rn another and it is alvrays in exchange of fin cial settlemt:nt on behalf of the wife after seeki divorce fronr her husband Even otherwise, un er Dissolution of Marriuges Act, 1939 even at e, instance oT such wife' she can bring her suit ar d has to approach the Court and because of he rr:quest shr! is entitlerl to divorce.

11.In the c e in hand vrife has alrtiady t)- stated that she is titled to 13 % tolas go:den r ornarnents which rrnder the evidence' by examining herself d in her support Fari.r\an Ali have categorica 11, stated that she has n,:ver received such gol err ornameirts frorn S hah

ATTESTED

I UI

r*,,ndn4, Pesh.r'rJ r tlr(ih Ccti:'l Bcnch l,l rr,lor.r 0.rr "i ')rr'r' Slv'rl

t3

Hussain. It is for th hustrand and ploof casted upon him to prove :lc payment of amour.t of dower or golden o naments t0 have harrded over to his wife. n this regard reliance is placed on 2 14 :J !ge!!, a w a r) " A li,rl u I Sattar vs Mst. Sha ufta Boruu and'2 ttthers".

The relevant citati '11 (") ts reproducei as under:-

(c)Muslim Family Laws Ordinance I of 1961);

S. 6 (s) (a). Payment ,of dower amount. B aerx o.f proof.

Pe tI t.ton er-de dant (hushand)

I

claimed that h ,had paid full dotper .

and nothing vtas ,against him. , Burden to tove. paymettt, of

amount oJ 'ower was on thb

I

husband. ,

This rden has never b,:en discharged by tm leaving room for acceptance of 'the :laim of his separ;ited

ATTESJFD

E^a,r,{,r[,.

Pesh.r\yilf tiiglr Cnirr t Br:rrclr l\lir:rtor.,'['.rr.rr1.C;r:,r S..,at

t4

spouse to b 'believed lbr her given statement to its entire

L2. n all probabilities, this petition has got no fo e which is hereby dismissed alongwith

Announced

Y^

Dt: 24.05.2 17. JUDGE

t: c- true c$FlY Cert!iied t

t, Psshalr:r iiiSh Cotttl, I iu?orai il :!i'- l! -0a Aiili:cr;lii Uriaur Anicle 8i o t7,y' ':,/W

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