' KHAWAJA SHAHAD AHMED, J.--- The above captioned appeal by leave of this Court has been addressed against a consolidated judgment passed by the Shariat Court of Azad Jammu and Kashmir in Shariat Appeals Nos.8, 9, 10 and 11 of 2006.
2. The Shariat Appeal No,8 of 2006 was filed by the respondent, herein, against the judgment and decree of the Judge Family Court whereas the other three appeals were filed by the appellant, herein, The Judge Family Court by a consolidated judgment passed on 8-4-2006 partly decreed the suit of the respondent to the extent of payment of half of the dower whereas in suit No,73 passed a decree for dissolution of marriage on the ground of Khula. Suit No,52, filed by the appellant, herein, for restitution of conjugal rights was dismissed. In respect of the Suit No,39 the Judge Family Court held that under law and in view of the facts of the case he does not have jurisdiction to adjudicate in respect of house and land allegedly given as part of dower. In the Shariat Court the respondent through Appeal No,8 challenged the findings of the Judge Family Court who held that he does not have jurisdiction whereas the other three appeals were filed by the present appellant. The Shariat Court after hearing the parties vide its order dated 23-1-2007 dismissed all the appeals with the result that a petition for leave to appeal was filed by the present appellant before this Court which was heard on 4-4-2007 and leave was granted on the same day.
In the first Court of appeal and before us the learned counsel mainly based his case on the points that no issues were framed by the Judge Family Court and no chance of evidence was provided to the appellant. The suits have been disposed of without framing the issues and when the issues were reframed, the evidence had already been recorded. It was further submitted by he learned counsel that in suit for payment of dower initially no issues were framed, but after the evidence the issues were framed, therefore, in his estimation, the procedural violation committed by the trial Court renders the judgments of the Courts below to be recalled and set aside. The learned counsel filed his appeal by leave only against the findings recorded in Appeals Nos.9, 10 and 11 whereas the respondent has not filed any appeal against the judgment of the Shariat Court. The Suit No,39 also included her claim in respect of land and house which she claimed on the ground of some transaction which was negotiated between her and the appellant. As she has not filed any appeal before this Court we have to deal with the controversy raised in the Suit No,52, 73 and part of the Suit No,89, and Appeals Nos.9, 10 and 11 of 2006 filed in the Shariat Court. The learned counsel for the appellant while repeating the arguments, which he took before the Shariat Court, at the time of arguing leave to appeal and in his concise statement, submitted that the Family Court did not strike any issue or record any evidence in respect of dower (A) which was an illegality. Similarly the decree of dissolution of marriage by the Family Court was passed without framing any issue and recording any evidence and the Shariat Court having not attended to these points, has rendered the findings of the Courts below as illegal. In his estimation the Judge Family Court erred in law by not considering the fact that two applications filed by the appellant were to be considered and decided before recording the final judgment. The Shariat Court failed to consider these objections, therefore, each of the Courts below committed an illegality, thus, the judgments and decrees under appeal deserve to be recalled. Another point which he pleaded in detail in his concise statement is in respect of grant of amount of Rs,500,000, the half of the dower, which the Court granted to the respondent and adjusted against the amount of Khula. The Shariat Court maintained the same without lawful justification. Elaborating this point in his concise statement it has been contended by the learned counsel for the appellant that in the eye of Muslim law only that wife is entitled to any amount of dower who has been divorced by her husband without any fault and as in the present case it was the respondent who demanded divorce she could not claim half or full amount of the dower. On facts it was pleaded that the Courts below failed to note that Rs,10,00,000 were paid by the husband (appellant) to the respondent which stand of the appellant was turned down by the Courts below in an illegal fashion. While referring to the interim orders passed by the Judge Family Court in Suits Nos.73 and 52 of 2005, it was pleaded that the Reader of the Court made certain wrong entries which, in the estimation of the learned counsel for the appellant, were incorporated deliberately and with a mal fide intention to discard the version of the appellant taken in the Courts below.
3. As against it, it has categorically been pleaded by the respondent through her counsel in the concise statement that the parties entered into wedlock on the basis of Nikahnama dated 15-5- 2002. The dower amount was fixed as Rs,10,00,000. It was agreed that half portion of the house constructed in Gojra shall be given in lieu of the dower amount of Rs,1,50,000 and the remaining dower amount will be paid on demand.
' Rukhsati did not take place and after some time it transpired that the appellant is already married to more than one wife and that he is habitual of entering into marriages for the purpose of extracting monetary benefits. The respondent filed two suits for dissolution of marriage and for recovery of dower amount and the third suit was filed by the appellant. All the three suits were consolidated. On the grounds raised in respect of legal contentions it has been pleaded that as the objections in respect of framing of issues have not been raised at proper stage, the same cannot be taken before the Supreme Court for the first time. Similarly as the issues were framed after consolidation of all the three suits the mischief of law as provided by Order XIV, C.P.C. Could not affect the finding recorded by the Courts below. In the concise statement it was contended on behalf of the respondent that the other arguments with the permission of the Court shall be addressed during the course of final arguments. It may be mentioned here that the facts and points raised before this Court during hearing of the petition for leave to appeal and in the concise statement filed by the parties have been discussed before considering the arguments addressed at Bar by the learned counsel for the parties to hold that the stands of the appellant, almost, remained the same throughout in the Shariat Court and before this Court which shall be dealt with at their proper place.
4. Kh. Muhammad Aslam Habib, the learned counsel for the appellant, during . The course of argument& mainly contended as under:--
(a) that the trial of the case in the Family Court and disposal of appeal by the Shariat Court have been conducted in a most illegal fashion and mandatory provisions for trial of the case have been violated, rendering the judgments of the Courts below as illegal.
(b) that although the suits filed by the parties were consolidated, the issues were not framed nor was the evidence recorded as required by law. He also disputed the correctness of certain interim orders recorded by the Office and the Judge Family Court.
(c) that the Family Court failed to decide two applications filed by the appellant on 28-3-2006 which in the set of circumstances of the case should have been decided before the final decision of the cases.
(d) that the trial Court failed to appreciate that the divorce took place on the initiation of the respondent without consummation. It is the wife who has to pay the whole amount of Khula.
5. As against it Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the respondent, while rebutting the arguments of the learned counsel for the appellant, contended that there being concurrent findings of fact recorded by the Courts below, the Supreme Court, as far the law and the case law on the subject is concerned, does not disturb such concurrently recorded findings of fact.
6. As has been mentioned hereinabove that three suits were filed in the trial Court. The first suit was filed by the respondent for dissolution of marriage whereas the other suit filed by her was for recovery of the amount of dower to the tune of Rs,10,00,000 including the part of the house and land in Survey No,1636 measuring 15 Marlas. The third suit was filed by the present appellant for restitution of conjugal rights. The Judge Family Court of the time consolidated all three suits vide order dated 19-5-2005 and also framed issues keeping in view the material propositions accepted by one party and denied by the other . When the newly posted Judge Family Court assumed his duties as such he found that the issues annexed with the file were framed by the learned counsel for the parties and that the Judge Family Court of the time did not sign the list of issues submitted by the learned counsel for the parties. In this view of the matter the newly appointed Judge Family Court proceeded to reframed the issues and decided the controversy between the parties accordingly. It also reveals from the record that the parties produced their respective evidence.
The respondent Nazish Kazmi in support of her suits produced Syed Ajmal Hussain Shah, Syed Shaukat Ali Kazmi, Syed Waris Imam Kazmi, Syed Taj Hussain, Shabbir Ahmed Chughtai, Hazoor Imam Kazmi and Mujtaba Ali Kazmi as her witnesses and opted to appear herself as a witness as well. The present appellant produced Syed Muhammad Yousaf Shah, Syed Mahmood Kazmi, Syed Javed Hussain Gilani, Syed Ghulam Hussain Shah and Syed Ali Shah as his witnesses. He also opted to appear as a witness in support of his claim. The Judge Family Court at the end of the proceedings partly decreed the suits of Mst. Nazish Kazmi for recovery of dower to the extent of half of the fixed amount and adjusted it against the amount of Khula. He decreed the suit for dissolution of marriage on the basis of Khula, whereas the suit filed for restitution of conjugal rights by the present appellant was dismissed vide judgment and decree dated 8-4-2006. The learned Judge of the Shariat Court while dealing with the points raised by the present appellant recorded his findings in the impugned judgment and dismissed all the four appeals out of which three were filed by the present appellant whereas the 4th was instituted by the respondent against the findings of the Family Court which held itself to have no jurisdiction in respect of part of the property and the house. In respect of framing of issues the learned Judge held that where the parties are found to be alive to the points involved, failure to frame issues or to reframe issues does not affect the validity of the judgment. The learned Judge in this respect placed reliance on the case reported as Mst. Shaukat Feroze v. The District Judge, Bahawalpur and another PLD 1974 BJ 4. The learned Judge also held that the objections for not framing the issues in all the suits were not taken at proper stage. On the point of payment of full amount of dower it was held on the basis of Nikahnama Exh.P.A. That the dower amount of Rs,1,50,000 was fixed as prompt dower and the rest was fixed as deferred dower out of Rs,10,00,000 (one million), the total amount of dower fixed. The learned Judge also relied on an agreement Exh.P.B., which is signed and verified by the appellant in presence of the respondent along with two marginal witnesses. On the point of dissolution of marriage on the ground of Khula the learned Judge declared that the decree passed by the Family Court is according to the canons of Islam and no exception can be pleaded in view of the judgments recorded by the superior Courts of the country. While rejecting the contention of the learned counsel for the appellant that the wife is not entitled to even half of the dower, if she opts for dissolution of marriage herself, it was held that the precept referred to by the learned counsel for the appellant covers the cases of those Muslim women, who convert as non-believers.
7. As far the points of facts disputed by the parties are concerned we may have different opinion as compared to that recorded by the Family Court and concurred by the first appellate Court but the fact of the matter remains the same as has been held by this Court time and again that even the Supreme Court is regulated by law and rules made thereunder that it does not interfere with findings of fact. More than a dozen witnesses have been produced by the parties in support of their respective contentions and we cannot accept the set of statement of witnesses favouring the appellant's contention and reject that part of the statement which supports the respondent. In this view of the matter the findings recorded on the points of fact are accepted as correct particularly when no case of misreading or non-reading of evidence has been pressed into service before us or brought on record.
8. Now coming to the law points raised by the learned counsel for the appellant, we propose to adjudicate as under:---
9. The contention of the learned counsel that the trial of the case has been conducted in a most illegal fashion and that mandatory provisions regulating the conduct of the case by the Family Court have been violated, is an allegation of general nature. Even otherwise the Code of Civil Procedure provides the procedure for conduct of civil cases which does not in any way affect the powers and inherent powers of the Family Court for doing complete justice and for issuing just decisions. There is only one exception to this principle which has time and again been interpreted and upheld by the superior Courts. If any deviation from procedure causing injustice to a party is apprehended, the provision must be applied strictly. In the present case no specific provision has been referred to persuade us to recall the judgment and decree passed by the Family Court and concurred by the first appellate Court.
10. As far the contention about framing of issues and production of evidence is concerned, it is correct that Order XIV, C.P.C. Provides details for framing of issues and effect of non-observance of any rule thereof. In the present case the issues were framed by the order of the Judge Family Court of the time and subsequently on the basis of some formal defect were reframed by the Family Court before disposal of lis before it. Even otherwise the superior Courts have time and again held that any flaw or fault on the part of the trial Court in framing or C reframing issues shall not render the judgment subject to reversal. In the case reported as Jawad Liaqat and 5 others v. Dr. Zafar Iqbal 2001 YLR 161, a Division Bench of this Court at page 47 of the report held as under:-- "It is well settled principle of law that if the parties were alive of a point and led evidence in support and rebuttal of the same, the wrong framing of issue or even non-framing of issue would not justify the remand of the case. Similarly, the onus of proof of the issues is immaterial when both the contending parties were alive to the subject-matter of issue No,4 and led evidence in support of their respective contentions."
11. It hardly needs any mention here that the appellant and the respondent who had entered into a contract of marriage, could by any stretch of imagination be considered to be not alive to material proposition and the disputes which developed between them. The only material pints which needed leading of evidence were about the dissolution of marriage on Khula, restitution of conjugal rights and payment of the amount of dower. Thus, this legal point raised by the learned counsel for the appellant is repelled as well and we approve time and again recorded judgments by the superior Courts that where the parties are alive to the disputed points, reframing or non- framing of issues would be immaterial. As far the production or consideration of the evidence is concerned, it has already been held hereinabove that the parties have led their evidence according to their respective contentions.
12. As far the point very seriously contended by the learned counsel for the appellant that two applications, one for amendment of his written statement and the other for dismissal of suit of the appellant for payment of dower, is concerned, the Family Court and the first appellate Court have rightly dealt with the objection which we also own by holding that according to the Civil Procedure Code a party is at liberty to apply for amendment of the pleadings in the trial Court and even before the Supreme Court at any time and there are plethora of judgments favouring the contention of the appellant but at the same time it is also correct that amendment applications can neither be entertained nor allowed to deprive the other party in whom a right has come to rest on account of negligence or indolence of the applicant. Similarly it is by now a settled law that the amendment applications and other application for dismissal of the suit cannot be filed to keep hanging the other party for indefinite period, particularly when in the set of circumstances of the case the time is running fast.
A lady who has to resettle in her life cannot be dragged into unnecessary litigation for a long or indefinite time. The Family Court' has held that the pints on which the amendment is sought by the appellant are already on the file, therefore, we are persuaded to hold that these applications filed by the appellant were nothing but based on mala fide intention and of the appellant. It also needs mention here that the appellant moved another application in the Shariat Court against the validity of the interim orders passed by the trial Court, which further confirms that the appellant has throughout attempted to delay the disposal of cases by the lower Courts.
13. As far the contention of the learned counsel for the appellant that where the dissolution of marriage is ordered on the basis of Khula and on the request of wife, she is not entitled to get anything from her husband rather it is she who has to pay him whatever she has received. It may be mentioned here that the findings of the Courts below are very clear on the point that the half of the dower to which the respondent was ' found entitled to has been adjusted against the amount of Khula fixed by the Family Court. In the following cases, among others, Mst, Naqeeba Begum v.
Abdul Khaliq 2001 YLR 161, Zohra Bi v. Muhammad Saleem and others 2005 SCR 82, Tanveer Hussain v. Nani Sultana and 4 others 2006 SCR 238 and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97, it has been held that "the wife is entitled to dissolution of marriage on the ground of Khula when in view of the circumstances of the relation between the spouses the wife has reached a point of no return and has developed disliking and even hatred for her husband and the Court is of the opinion that the parties cannot observe the limits ordained by God. The only condition is that wife has to pay to the husband full or part of the consideration she has received from her husband at the time of the contract of marriage, as the Court may determine. In Mst. Khurshid Bibi's case (supra) while interpreting the word "Khula" it was held, "Khula" a charter granted to wife, woman has a right to seek Khula if she has fixed aversion to her husband." (Underlining is ours)
' Similarly in Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 Lah.
566. It has been held as under:--- "................................... The wife is entitled to dissolution of marriage on restoration of what she received in consideration of marriage if the Judge apprehends that parties will not observe the limits of God."
14. As has earlier been mentioned the Courts must contemplate in such cases that once alike eventuality occurs or arises, it must rush to conclude the trial so that the wife may opt for her future course as she likes and the Courts should not prolong the proceedings till a point of time when even a favourable decree may become useless and futile for the wife. Our this view finds support from the Azad Jammu and Kashmir Family Courts Act, 1993 which has been enacted with the sole purpose of expeditious settlement and disposal of suits relating to marriage and family affairs and for matters connected therewith. The proviso of subsection (2) of section 12 clearly provides that the Family Court shall finally decide a case within a period of 4 months from the date of presentation of the plaint. It is a celebrated principle of all enacted laws that while conducting the proceedings under a particular law or enactment, the purpose of Act is to be given priority and it cannot be defeated by resorting to sheer technicalities. While elaborating theproposition in a case reported as Nisar Ahmed v. The State 1982 PCr.LJ 1287 it has been held:--- "(10) It should be remembered that while construing a statute the reasons for its enactment should be kept in mind and the statute should be construed with reference to its intended scope and purpose. The Courts should seek to carry out its purpose rather than to defeat it. If the statutes' meaning are clear it must be accorded the expressed meaning without deviation; since such departure would be treated as an invasion in the province of the legislature by the judiciary."
' In a case reported as Province of Punjab through Secretary, Housing and Physical Planning Department, Government of Punjab, Lahore v. Additional Commissioner (Rev.) and 6 others 2001 M LD 729, it was held that "It is settled proposition of law that preamble is key to understand the Act."
' In the case reported as Habib Bank Limited v. Messrs Qayyum Spinning Limited and others 2001 M LD 1351, it has been held:--- ' In fact, BCD Circular No,13 the preamble also states that the Banking System was to shift over to the Islamic modes of financing, such is the public policy, after the law has been brought in conformity with the Holy Qur'an and Sunnah, way and methods are being employed by the Bank to continue the previous usurious Banking Practice despite the fact that the law has been Islamized in accordance with the Constitution of Islamic Republic of Pakistan. Such a practice that is sought to be developed by the Banks is the fraud on the Islamic provisions. No one can be allowed to play a fraud on the existing law by trying to avert the existence of such law that prescribes that mark-up on mark-up cannot be charged." (Underlining is ours)
15. To elaborate the proposition that purpose of enactment cannot be bypassed, floated or otherwise defeated by resorting to technicalities and to hold that the purpose/intent must be the prime consideration, the basic and fundamental rule of interpretation of statutes is that the Courts should ascertain the intention and the purpose of the legislature because it is the essence of the statute. The legislative purpose is the reason why a particular enactment was passed by the legislature. The same has been provided by Crawford in his book "Statutory Construction, Interpretation of Laws" at pages 247 and 248 in the following words:--- "Naturally, the legislative purpose is the reason why the particular enactment was passed by the legislature. Perhaps the reason was to remedy some existing evil or to correct some defect in existing law, or to create a new right or a new remedy. Consequently, in seeking to ascertain the legislative purpose, the Court will resort, among other things, to the circumstances existing at the time of law's enactment, to the necessity for the law and the evil intended to be cured by it, to the intended remedy, to the law prior to the new enactment and to the consequences of the construction urged."
16. We, therefore, hold that cases involving family matter including dissolution of marriage must be decided within the period provided by the Act and technicalities must be avoided as far as possible and any delaying tactics be discouraged.
' The nutshell of the above is that finding no fault or flaw in the judgments and decrees of the lower Courts the above-captioned appeal is dismissed with no order as to costs.