' MUHAMMAD MUZAMMAL KHAN, J.---Instant constitutional petition assailed the judgment/order, dated 28-9-2005 passed by the learned Judge Family Court (respondent No,2) to be declared illegal, void and of no legal consequence, whereby respondent No,1 was granted decree for dissolution of her marriage on the basis of "khula" and the rest of her claim regarding dower amount, the issues were framed.
2. Precisely, relevant facts are that petitioner entered into a tie of marriage with respondent No,1 on 22-9-1983, according to Muslim rites through a registered Nikah Nama. This wedlock gave birth to four children (two sons and two daughters). One of the male child of the spouses is student of graduation whereas a daughter is student of Medical College. Relations between the spouses did not remain cordial and resulted in separation. Respondent No,1 on 18-4-2005 filed a suit for dissolution of her marriage and recovery of her dower amount of Rs,25,000 which is said to have been fixed at the time of Nikah. Petitioner did not appear before the learned Judge Family Court, cognizant of the suit whereupon he was proceeded against ex parte and was recalled on application in this behalf on 28-9-2005. The same day respondent No,1 was granted decree for dissolution of her marriage on the basis of- "khula" by invoking the provisions of section 10(4) of the Family Courts Act, 1964 and after framing of issues, the casewas fixed for evidence of the respondent No,1 regarding his entitlement of the decree for dower amount. Petitioner being aggrieved of the decree for dissolution of marriage, dated 28-9-2005 filed instant constitutional petition with the relief noted above. Respondent No,1 in spite of her service through publication in daily newspaper "Dawn", dated 28-2-2006 opted not to appear/contest this petition and was consequently ordered to be proceeded against ex parte.
3. I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Stance of the petitioner that respondent No,1 never appeared before the learned Judge Family Court and thus there was no question of failure of reconciliation proceedings, as noted by the learned Judge Family Court in the impugned order, dated 28-9-2005, is supported from the record. Petitioner has appended with this petition all the interim orders of the suit filed by respondent No,1 but her presence was not marked by the trial Court on any of the dates A fixed. She was also not marked present in the order under attack, which for convenience of reference is reproduced and reads as under:-- "Order ' The plaintiff has filed a suit for dissolution of marriage on the grounds of cruelty, hatred and on the basis of Khula. So, the suit of the plaintiff is decreed to the extent of dissolution of marriage.
' Reconciliation proceedings have been failed. From the divergent pleadings of the parties, following issues are hereby framed:--
(I) Whether the plaintiff is entitled to get a decree for recovery of dower amount? OPP
(2) Whether the suit has been filed with mala fide intention? OPD.
(3) Whether the plaintiff has got no cause of action against the defendant? OPD
(4) Relief.
' Now to come up for evidence of the plaintiff on 5-10-2005. Announced 28-9-2005.
Judge ' Family Court, Lahore."
4. The above-reproduced order revealed that the learned Judge Family Court (respondent No,2) after decreeing the suit of respondent No,1 in Para. 1 of the order, after pronouncing divorce, noted that reconciliation proceedings have failed. Though presence of respondentNo,1 was not marked in this order yet after granting her the prayed decree, there was no occasion to hold the reconciliation proceedings and that too, in her absence. On the day of order under attack, trial Court passed two orders, one in "Urdu" and the other in "English". Order in "Urdu" related to recall of ex parte proceedings against the petitioner subject to payment of costs of Rs,200, adjourning the case for reconciliation proceedings, as written statement had been filed. In this order as well, presence of learned counsel for respondent No,1 was marked but her own presence was not noted.
5. Parties were married on 22-9-1983 and they have four grown-up children, one of them is a student of graduation whereas the other is Medical Student. In these family circumstances of the petitioner, decision of the case in absence of respondent No,1 is not only unlawful being opposed to the provisions of section 10 of the Family Courts Act, 1964 but is also highly deprecatable. Scan of record and impugned judgment revealed that controversy between the parties was not correctly decided in accordance with the law and the impugned order, dated 28-9-2005 cannot be allowed to hold the field.
6. For the reasons noted above, instant petition is bound to succeed and is accordingly accepted.
Judgment/order/decree, dated 28-9-2005 passed by the learned Judge Family Court Lahore (respondent No,2) is declared to be void and non-existent in the eye of law; with the result that suit by respondent No, 1 shall be deemed to be pending and shall be decided by undertaking fresh pretrial reconciliation proceedings between the spouses in the real spirit of the law applicable.
Order of even date in Urdu, passed by the same Court, recalling the ex parte proceedings against the petitioner will continue. There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.