AZIZ-UR-REHMAN, J.---Through this Constitutional Petition No.S-2342 of 2018, the Petitioner herein viz. Muhammad Arif son of Ali Asghar, has called in question judgment dated 30.08.2018 [Annexure 'A' to the Memo of Petition], passed by the learned VIIIth Additional District and Sessions Judge, Karachi-West, in Family Appeal No.101 of 2017 [Muhammad Arif v. Mst. Shahnaz], whereby, the 'judgment' and 'decree' both dated 16.09.2017, [Annexure 'E/3' to the Memo of Petition], passed in Family Suit No.1653 of 2012 [Mst. Shahnaz v.
Muhammad Arif], by the learned IXth Civil and Family. Judge Karachi-West, were 'maintained' and consequently, Family Appeal No.101 of 2017, was dismissed, however, with no order as to cost. The prayer sought in the Memo of Petition [In short MoP], reads as follows; i]. To set aside the impugned judgment dated 30.08.2018 passed by the learned Additional District and Sessions Judge No.8 at Karachi West in Family Appeal No.101 of 2017, and so also the judgment and decree dated 16.09.2017, passed by learned IXth Family Judge at Karachi West in Family Suit No.153 of 2012 and hold that the Petitioner is not liable to pay any maintenance to the Respondent No. 3. ii]. To call for the record, paper and proceedings of the learned IXth Family Court at Karachi West in Family Suit No.1653 of 2012 as well as the learned Additional District and Sessions Judge No.8 at Karachi West in Family Appeal No.101 of 2017. iii]. To grant such other reliefes as this Hon'ble Court being just and proper in the circumstances of the case. iv]. To grant cost of the petition.
2. Resume of the facts forming the background of the instant Petition is that; the 'Nikah' of Respondent No.3 herein [Plaintiff] namely Mst. Shahnaz daughter of Khalil-ur-Rehman was performed with the Petitioner herein [Defendant], namely Muhammad Arif son of Ali Asghar on 24.12.1999, at Karachi, according to Muslims Personal Law against the 'dower amount' of Rs.30 000/- but Rukhsati, never took place.
3. Per assertions made in the plaint, at the wish and inducement of the Petitioner herein .[Defendant] and his parents, 'Nikahnama' of such marriage was also registered, as it was much needed/required by the Petitioner, for arranging a house/residence from the Petitioner's employer viz. Pakistan Atomic Energy Commission of Pakistan, Islamabad. As per pre-condition imposed by the employer, according to which, only a 'married employee' was eligible to apply and get a residential accommodate/ House/Plot in Islamabad, on the basis of a registered 'Nikahnama'.
4. The Petitioner herein [Defendant] succeeded in obtaining a residence/house from the employer but avoided to take the 'Rukhsati' of Respondent No.3 herein [Plaintiff]. Instead, the Respondent No.3 herein [Plaintiff] and her other 'family members' were kept assured but on the basis of false hopes and promises. The Petitioner herein [Defendant], through 'lame excuses', such as; some time there is a winter season, sometime there is a 'summer season' and sometime, there is a 'holy month of Ramzan', 'Moharram' etc. etc. repeatedly delayed the 'Rukhsati', of the Plaintiff [Respondent No.3 herein], in a very clever manner.
5. Later on, when. the parents of Respondent No.3 herein [Plaintiff] again asked the Petitioner herein [Defendant], to arrange 'Rukhstati' of their daughter namely Ms. Shahnaz then, also the Petitioner herein [Defendant], very cleverly, postponed the 'Rukhsati' of Respondent No.3 herein. Thereafter, about six months back, the father of the Petitioner herein [Defendant], came to Karachi, but for the purpose of attending a 'funeral ceremony' of a relative/brother-in-law. During such period, as per Petitioner's version, the Petitioner's father stayed at the house of a 'common relative'. During such stay at Karachi, he also met with the father Respondent No.3 herein [Plaintiff's] and, as asserted, he had assured for the arranging of 'Rukhsati' i.e. after 40 days but this time, as well, the Rukhsati of Plaintiff [Respondent No.3 herein], as promised, could not take place. The Respondent No.3 herein [Plaintiff] and her parents, on account of such continued 'breach of promises' and 'routine excuses', not only suffered 'mental agony', 'defamation' but also faced insult in brathery/closed and known relatives, who were not only making jokes but also they were then raising fingers for and on account of non-taking place of 'Rukhsati' of Mst. Shahnaz daughter of Khalil-ur-Rehman since, 24.12.1999. According to Respondent No.3's stand, mother of Respondent No.3 herein [Plaintiff] thereafter, also died/expired, as alleged, due to 'shocks'/'worries' caused to her and her family members by the Petitioner herein [Defendant] and his parents, that is to say, since, 24.12.1999, when 'NIKAH' of the Petitioner herein [Defendant], was performed with Respondent No.3 herein [Plaintiff].
6. Under the foregoing scenario, the Petitioner herein [Defendant] was thus called upon through a Legal Notice [Exh.'P/1-C1 by Plaintiff's counsel to immediately pronounce 'Divorce', to the Respondent No.3 herein [Plaintiff] i.e. within seven [7] days, from receipt of such Legal Notice dated 24.09.2012, failing which, Respondent No.3 herein, [Plaintiff] would have no 'alternate' except to seek appropriate remedy by way of approaching a court of law, as well as, to other competent authorities including Pakistan Atomic Energy Commission of Pakistan, Islamabad etc. regarding the Defendant's-Petitioner's illegal, un-justifiable and immoral acts. The Petitioner herein, despite receipt of such legal notice, however, failed to give any positive response.
7. On account of 'passive attitude'/ 'dis-inclined behavior' of Petitioner [Defendant], in the heart of Respondent No.3 [Plaintiff], hatred was gradually developed thus she finally compelled to approach the court of learned Xth Family Judge, Karachi-West, by way of filing a Suit on 27.11.2012, for 'Dissolution' of her Marriage by way of 'Khula', and recovery of 'past Maintenance' with the prayers as follows:- 1) It is therefore, prayed that this Hon'ble Court may pleased to pass a Judgment and decree in favour of the Plaintiff and against the Defendant, thereby dissolving the marriage of the Plaintiff with the Defendant, thereby declaring the marriage of the Plaintiff with the Petitioner herein [Defendant] or in the alternative , the Plaintiff may be awarded KHULA for which she is ready forego her Dower amount.
2) To direct the Defendant to pay the past maintenance of the Plaintiff at the rate of Rs. 30,000/- per month since 2412-1999 which is approx. calculated to Rs.46,80,000/- for last 156 months and also till she get Khulla, further the Defendant be directed to pay maintenance in addition to the above-mentioned maintenance at the rate of Rs.2000/- per month already settled in between the parties in Nikkah Nama against 156 months i.e. total amounting to Rs. 3,12,000,00/- and onwards till disposal of suit.
3) Costs of this suit, any other/further relief which this Honorable Court may deem fit and proper.
8. Upon service, the Petitioner herein [Defendant], filed his 'written statement' wherein, the 'allegations levelled' and 'adverse assertions' made in plaint were denied/controverted. In the 'written statement' however, the factum of 'NIKAH' on 24.12.1999, according to Muslim Personal Law, against the Dower amount of Rs.30,000/- [Rupees Thirty Thousand only], was not denied. Besides, 'Registration' of NIKAH and receiving the Registered Copy of 'NIKAHNAMA' [Exh. 'P/1-C1 was also not denied.
9. Per Petitioner's stand, he is still residing in a 'Government Hostel', and has never obtained any accommodation from the 'Employer Department' [Dr. A.Q. Khan Research Lab Kahutta], because of the Plaintiff's 'non-co-operation' though, the Plaintiff is a 'wedded wife' of the Defendant [Petitioner herein].
10. As averred in the written statement', the Petitioner [Defendant], has neither kept the Respondent No.3 herein [Plaintiff] nor her parents, as alleged, on false hopes in respect of Plaintiff's Rukhsati. Per Petitioner's stand, he and his family always wished/ wanted to take the 'Rukhsati' of the Plaintiff namely Ms. Shahnaz after 'performance of her Nikah' on 24.12.1999, with Petitioner herein [Defendant]. Per assertions, Defendant's father and other family members regarding 'Plaintiff's Rukhsati', though had made requests to the Plaintiff's family members but they despite such requests did not agree for the Rukhsati of Respondent No.3 [Plaintiff] since, 24.12.1999, when her Nikah was performed with the Petitioner [Defendant]. Per Petitioner's stand, Plaintiff's father in fact, before 'Rukhsati of Respondent No.3 [Plaintiff] wanted first to arrange the marriages of his elder daughters, construct a house in Orangi Town, Karachi and set-up a transport business.
11. During the entire period i.e. since, the performance of Plaintiff's 'Nikahnama' with the Petitioner herein [Defendant] on 24.12.1999, it was the Plaintiff's father, who wasted long time for fulfilling of his wishes. The 'Rukhsati' of the Respondent No.3 herein [Plaintiff], namely Mst. Shahnaz daughter of Khalil-ur-Rehman thus became a hurdle for the Petitioner herein [Defendant], as well as, his family. Per Defendant's version/stand, no delay, 'irreparable losses', 'mental agony' and/or 'great inconvenience', as alleged, in the plaint, was ever caused to Plaintiff, as Petitioner [Defendant], is not only a law abiding citizen of Islamic Republic of Pakistan but also a responsible Government employee. Per version of the Petitioner herein [Defendant] sometime in the Month of April, 2012, when father of Petitioner herein [Defendant], came to Karachi along with the Defendant's uncles namely [i]. Muhammad Ashraf and [ii]. Muhammad Riaz for attending a 'funeral ceremony' of his brother-in-law namely Khursheed [late] then, also after the attending the 'funeral ceremony', they had also gone to the house of Plaintiff's father, situated in Orangi Town, Karachi, with a request for the Plaintiff's Rukhsati but then, instead of allowing the Rukhsati, a promise for allowing Rukhsati was made but only after the Chehlum of Khursheed [late], is over.
12. With regard to the death of Plaintiff's mother, per Defendant's stand, she did not expire much-less, to say due to 'shock'/ 'worries' caused to her on account of Plaintiff's 'Non-Rukhsati', rather to say, she had died, on account of acute 'blood pressure' and 'heart attack' in a Hospital. The 'funeral ceremony' of the Plaintiff's mother, was also attended by the Defendant [Petitioner herein], as well as, his mother who is a real sister of the Plaintiff's deceased's mother. According to Defendant's version, this time, as well, after ten [10] days, from the death of Plaintiff's mother, the Defendant's mother had asked for 'Rukhsati' of the Plaintiff [Respondent No.3 herein], but then, also, as asserted, father of the Plaintiff had said that the matter of 'Rukhsati' would be dis- cussed later-on i.e. after Chehlum of Plaintiff's mother. On saying so, the Petitioner [Defendant] left for Peshawar, without taking 'Rukhsati' of Mst. Shehnaz daughter of Khalil-ur-Rehman.
13. Thereafter, some weeks' later, family members of the Defendant again requested to Plaintiff's father to give the 'Rukhsati' of Plaintiff but then, also the 'Rukhsati' of the Plaintiff was denied by demanding/imposing some new conditions i.e. [i]. 'Dower amount' must be of Rs.10 Lacs [ii]. 'Monthly Maintenance' amount must be of Rs.10,000/- per month and [3]. The 'gold ornaments' must be of 15 Tolas. Otherwise, the 'Rukhsati' of his daughter [Plaintiff], would not be allowed. Later-on, per Petitioner's stand, a letter dated 07.2.2012, was sent through registered A/D to Plaintiff's father, in which a request for effecting 'Rukhsati' of Plaintiff [Respondent No.3 herein], was made/reiterated. Moreover, in the said letter of 07.02.2012, imposition of new conditions was stated to be against the 'Sharia'. The father of Plaintiff, somehow, was no more interested in the 'Rukhsati' of the Plaintiff, though in this regard, repeatedly requests were made on the part of Defendant's kith and kin but to no avail.
14. In the legal notice dated 27.9.2012 [Exh.'A/1-B], received to Defendant [Petitioner herein], from Plaintiff's side, a clear demand for 'Divorce' of the Plaintiff [Respondent No.3 herein] was made. The Defendant's father, thereafter, came to Karachi, along with his relatives namely [i] Muhammad Bashir and [ii]. his son named Shakeel Ahmed who also went to the house of the Plaintiff's father with an 'aim to resolve' the issue/dispute of 'Rukhsati' of the Plaintiff [Respondent No.3 herein] but then father of the Plaintiff stated/said that he has taken a Swear [QASAM] not to give 'Rukhsati' of Plaintiff to the Defendant. In this regard, as asserted in the 'written statement', the Petitioner's father had also approached some other 'relatives' / 'family members' of Plaintiff's father i.e. [i]. Shah Zaman who is the brother of Plaintiff's father and [ii].
Shafiq-ur-Rehman. Per Defendant's versions, they had also requested to the Plaintiff's father for allowing 'Rukhsati' of the Plaintiff [Respondent No.3 herein], but father of Despondent No.3 [Plaintiff] did not bother to even consider such requests.
15. In the 'written statement', it has further been asserted that after the Defendant's 'Nikah' his father and other family members always used to send 'gift items', as well as, 'cash amount' for/to the Plaintiff [Respondent No.3 herein] i.e. on each 'occasion of Eid' etc. as the Defendant's sister is also married at Karachi, as such, when the Defendant's family sent anything to his sister then, gift items, were also sent for the Plaintiff [Respondent No.3 herein], that is to say, sometime by hand and sometime through money order, despite the fact that the Plaintiff's 'Rukhsati' had not taken place. Per 'averments' made in the 'written statement', the Plaintiff is not entitled for any 'maintenance' as claimed, in Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Aril], because it was the Plaintiff and her family, who not only refused the 'Rukhsati' but the Plaintiff herself had also refused/ avoided the performance of 'marital obligation' with the Defendant. The Plaintiff [Respondent No.3 herein], as such, is not entitled for recovery of any 'past maintenance' as claimed.
16. Later on, when Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Aril], came-up before the Court of learned Xth Family Judge, Karachi-West, for 'pre-trial' proceedings on 10.4.2013 then, the following order was passed :- Case called. Today the matter is fixed for pre trial proceedings. The plaintiff is present with her counsel so also the defendant counsel is present. The plaintiff stated that she does not want to live with the defendant at any cost and request for dissolution of marriage by way of khulla and is ready of to forego her dower amount Rs.30,000/- which is still unpaid to her and rukhsati did not take place. On the other hand, the defendant in his written statement admitted that he had not paid the dower and his counsel contended that any appropriate order may be passed. [Emphasis Supplied].
The facts of the plaintiff case are the plaintiff filed a suit for dissolution of marriage by way of khulla and recovery of past maintenance against the defendant.
It is pertinent to mention here that in view of the amendment in section 10 of the W.P. Family Courts Act, 1964, Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage for with and shall also restore the husband Haq Mehar received by the wife in consideration of marriage at the time of marriage.
Since, the dower is not disputed, thus no question of returning the same arises. Hence I hereby declare the pre- trial proceedings failed and dissolve the marriage between the plaintiff and defendant and from the pleading of parties following issues were framed:--
1. Whether no cause of action accrued to the plaintiff? [OPD]
2. Whether the plaintiff is entitled for maintenance, if so, at what rate and from which period?
3. What should the decree be?
Let the 'preliminary decree' be prepared and sent to the concerned authorities form information and compliance.
Announced in open court Given under my hand and the seal of the court This 10 day of_______ April 2013 Sd/- [Mrs. Shehnaz Bohyo] Xth Family Judge Karachi West.
17. In compliance with the Order dated 10.4.2013, a 'PRELIMINARY DECREE', was accordingly prepared/ passed on 10.4.2013. The marriage of the Plaintiff [Respondent No.3 herein], namely Mst. Shahnaz daughter of Khalil-ur-Rehman with the Defendant namely Muhammad Arif son of Ali Asghar was thus dissolved. The Plaintiff in Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], thereafter, it appears, had filed her own 'Affidavit-in-Evidence' on 27.11.2012, wherein, the 'averments' and 'assertions' vis-a-vis 'dissolution of her marriage with Defendant [Petitioner herein] and he claim pleaded/put forward for 'MAINTENANCE' in plaint were 're-affirmed'/'reiterated'. Later on, the Plaintiff's 'Examination-in-Chief' and 'Cross-Examination' was recorded on 17.9.2013. In the Plaintiff's 'Examination-in-Chief' the deponent namely Mst. Shehnaz [PW-1] besides, producing here 'Affidavit-in-Evidence' as Exh 'P/1-A' also produced here 'Nikahnama' dated 24 .12.1999, 'TCS Receipt' and 'Legal Notice' dated 24.09.2012 as Exh. 'P/1-B' and Exh. 'P/1-C'. Thereafter, the evidence of Plaintiff's 2nd witness namely Muhammad Saleem ['PW-2'], was recorded on 12.11.2013 and thereafter, Plaintiffs side of evidence was closed.
18. The Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif] thereafter, was posted for Defendant's side of evidence on 02.12.2013. On 02.12.2013 and thereafter, on so many dates right upto 27.08.2014, the Family suit was adjourned for one reason or the other. On 27.08.2014, an Application for re-opening of the Plaintiff's side of evidence was filed, as then, the Plaintiff wanted to examine a 3rd witness namely Muhammad Shafiq. On 05.10.2019 the Defendant filed, objections in response to the Plaintiff's such Application. On 29.01.2014 the said application was heard and allowed. For ready reference, Order dated 29.01.2016 is reproduced herein-below:- "By this order, I intend to dispose of an application for re-opening the side of the Plaintiff to examine her witness namely Muhammad Shafiq, which is filed by Plaintiff through her counsel notice Of said application was duly served upon defendant learned counsel for Plaintiff contended that this Hon'ble court may be pleased to reopen her side of Plaintiff of witness her side of evidence and permit her to examine her witness namely Muhammad Shafiq in this suit as earlier due to bonafide mistake of advocate for Plaintiff he closed her side of evidence but later on when the Plaintiff informed her advocate that she wants to examine her important witness Mahammad Shafiq who is brother of the Plaintiff and he can depose properly in respect of documents which were filed by the defendant in this case with his written statement hence he is important witness therefore he may be examined in the interest of Justice earlier her father was cited as such witness but he then. Hence, now her brother is important witness in this case.
Learned counsel for the Plaintiff relied upon the case reported as Umar Hayat v. Additional District Judge and others (2004 SCMR 1637 Supreme Court of Pakistan), Mrs Shahnaz Begum and 4 others (1995 CLC 327 LHR), Mrs. Hidayat Khatoon v. Munir Ahmed and others (1999 MLD 2153 KIM), Abdul Khaleeq v. Rashid Ahmed (1999 MLD 2156 LHR) respectively.
On the other hand, the defendant filed counter affidavit through his counsel wherein he submitted that application for reopening the side of the Plaintiff to examine her witness is not maintainable as the same had been filed without mentioning the proper section of law. He next stated that the name of deposed witness had not been mentioned in the list of the witnesses of the Plaintiff. He next submitted that reason had not been explained in the application that the said witness is necessary and affective. He next submitted that the application is only filed to pressurized the defendant. He next submitted that the said application had been filed without any valid reasons. He further stated that the said application had been filed without any valid reasons.
He further stated that the said application is groundless and the same is liable to be dismissed.
Considering the above facts and circumstances, it would be better to give ample opportunity to the Plaintiff to contest the matter rather than to decide the case on technical ground as law would favour adjudication onth _______ merits. With regard to contention of production of the witness the West Pakistan Family Courts Act, 1964 could not be confined to Plaints only both Plaintiff and defendant could be allowed to produce evidence beyond the list appended with the pleadings. Thus, keeping this view in the interest of justice and to decide the case on merit the Plaintiff application is hereby allowed subject to payment of a sum of Rs.500/- as cost by the Plaintiff to the defendant and order dated 12-11-2013 is hereby recalled, the Plaintiff is also allowed to produce the witness namely Muhammad Shafiq to establish her claim. The Plaintiff is directed to produce the witness till the next date of hearing without fail. [Emphasis Supplied]."
19. On granting the aforesaid Application on 29;01.2016 the 'affidavit-in-evidence' of Plaintiff's 3rd witness namely Muhammad Shafiq son of Khalilur Rehman ['PW-3'], was filed on 16.02.2016. Lateron, on 17.04.2016, his evidence was also recorded. Thereafter, Plaintiff's side of evidence, i.e. after recording of Plaintiff's evidence ['PW-1'] and other two [2] witnesses i.e. ['PW-2' and 'PW-3'], was closed in presence of Defendant's counsel and then, the case was put-up to 23.04.2016, for Defendant's side of evidence. On 23.04.2016, for want of Defendant's side evidence, the case was put-up to 29.04.2016. On 29.04.2016, again none was present from the Defendant's side. Nonetheless, then, also as 'last' and 'final' chance, the case was adjourned to 16.05.2016.
Once again for the same purpose, the case was adjourned to 30.05.2016. Again on 30.05.2016 as a 'last' and 'final' chance, the case was adjourned to 21.07.2016. On 21.07.2016, again the case was put-up to 11.08.2016 for Defendant's evidence. Even, thereafter again and again, the case was posted/fixed for Defendant's evidence that is to say from 11.8.2016 till 26.11.2016.
20. From the record, it reveals that later on, the Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], was transferred from the Court of learned VIIIth Family Judge, Karachi-West, to the Court of learned IXth Civil/Family Judge and JM, Karachi-West, vide order dated 23.11.2016, passed by learned District and Sessions Judge, Karachi-West. On transfer of the suit, when the Family Suit No.1653 of 2012 [Mst. Shahnaz v.
Muhammad Arif], came-up before the Court of learned IXth Civil/Family. Judge and JM, Karachi-West, on 02.12.2016, for Defendant's side of evidence then, again, as a 'last' and 'final' chance, the Family Suit, was adjourned to 16.12.2016, for recording of Defendant's evidence. Even thereafter, on 10.12.2016, the Defendant, failed and/or avoided to come forward and record his evidence. The Defendant's side of evidence, under the foregoing circumstances, was 'closed' and resultantly, the suit was fixed on 14.12.2016 for 'POST TRIAL PROCEEDINGS'. Lastly, on 17.01.2017, when the Family Suit No.1653 of 2012 came-up before the Court of learned IXth Civil/Family Judge, Karachi-West, then, the 'Post Trial Proceedings' were declared as failed. For ready reference, order dated 17.01.2017, is reproduced herein-below:- "Case called. Counsel for plaintiff is present. None is present from defendant side. Perusal of record shows that matter was fixed for post-trial proceedings but neither Plaintiff nor Defendant appeared before this Court.
Therefore, post-trial proceedings failed. Now the matter is fixed for final arguments on next date of hearing."
21. As a routine, even on 17.01.2017, none was present from the Defendant's side. Nonetheless, then, the case was posted for 'arguments' on 17.01.2017. Per record, thereafter, for the same purpose, on nine [9] occasions i.e. from 17.01.2017 to 17.04.2017, the case was adjourned. As per earlier 'LATE DIARY' dated 10.12.2016, the Defendant [Petitioner herein], had opted to file an Application for re-opening of Defendant's side of evidence/ recalling of order dated 10.12.2016, whereby, not only the Defendant's side of evidence was closed, but the Application for re-opening the Defendant's side of evidence was also dismissed. The relevant part of Order dated 17.01.2017, reads as follows:-- "The learned counsel for the defendant filed an application for adjournment where it has been on record that since long defendant is absent and since last four dates of hearing matter is fixed for evidence of the defendant but on each and every date an adjournment application is filed on the date of hearing. The defendant if did not appear his side shall be closed. Last chance was then given but today again, is the same position. The application filed by the learned counsel for the defendant stands dismissed and the side of defendant is hereby closed.
22. The Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif] thereafter, was coming-up for 'final arguments'. Lastly, on 17.04.2017, when the said suit was fixed for 'final arguments', then the Defendant's counsel, opted to file another Application for re-calling/setting aside of order dated 10,12.2016, as being evident from the Late Diary of 17.4.2016. The said Application, later on, was 'allowed' on 27.4.2016, however, subject to a condition that the Petitioner herein [Defendant], be produced within fifteen [151 days for recording his evidence and in case of his 'failure' heavy cost shall be awarded. Then, as appears, the case for such purpose, was adjourned to 13.05.2017.
23. On 13.05.2017, counsel for the Defendant's, filed an 'Affidavit-in-Evidence' and copy thereof, was supplied to the Plaintiff's counsel. The matter, thereafter, was adjourned to 29.05.2017, for recording of Defendant's evidence but again, as a 'last' and 'final chance'. Being relevant, Order dated 29.05.2017, is also reproduced herein-below:-- Learned counsel for defendant filed application for adjournment. Learned counsel for the plaintiff also present.
The photocopy of the certificate also annexed with the application. It shows that the matter is pending since 2012 and defendant filed his affidavit in evidence on 13.5.2017. In the above circumstances the application is allowed with the condition that on next date of hearing if the defendant does not appear his side shall be closed and cost of Rs.5000/- shall also be imposed [Emphasis Supplied].
24. Even thereafter, the Family Suit was adjourned on 'several occasions' i.e. 04.07.2017, 26.07.2017 and 09.08.2017, for want of Defendant's evidence. Some of the 'more relevant' trial court's diaries i.e. 10.12.2016, 17.01.2017, 25.04.2017, 27.04.2017, 29.05.2017 and 17.08.2017, are reproduced herein-below respectively:- a. 10.12.2016 Case called. Counsel for Plaintiff is present. Lr. Counsel for defendant is present but defendant called absent.
Order passed on separate sheet. Defendant side is closed and matter adjourned to 14.12.2016 for post trial [Emphasis Supplied]. b. 17.01.2017 Case called. Counsel for Plaintiff is present. None present for defendant side. Order passed on separate sheet.
Post trial proceedings failed and matter adjourned to 24.01.2017 for final arguments. [Emphasis Supplied] c. 25.04.2017 Counsel for both parties are present. Counsel for Plaintiff received copy of application for re-call/set aside the order dated 10.12.2016 filed by the counsel for defendant. Adjourned to 27.04.2017 for hearing on said application. [Emphasis Supplied]. d. 27.04.2017 Counsel for both parties are present. Arguments heard on application for re-call/set aside the order dated 10.12.2016 filed by the counsel for defendant. Application is allowed with the condition that within 15 days defendant be produced in case of failure heavy cost shall be awarded. Adjourned to 13.05.2017 for defendant evidence. [Emphasis Supplied]. e. 29.05.2017 Case called. Counsel for both parties are present. Counsel for defendant filed adjournment application. Detail order passed on said application and said application is allowed with the condition that on next date of hearing, if the defendant does not appear, his side shall be closed and a cost Rs. 5000/- shall also be imposed. Adj. to 04-07-2017 for cross-examination of defendant. [Emphasis Supplied]. f. 29.05.2017 Case called. Counsel for both parties are present. Counsel for defendant filed adjournment application. Detail order passed on said application and same is dismissed. The side of the defendant is hereby closed and matter upto 28.08.2017 for final arguments. [Emphasis Supplied].
25. On 16.09.2017, the Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], was consequently decreed in the following manner:
[i] The Defendant is directed to pay maintenance of the Plaintiff at the rate of Rs.25,000/- per month for 3 years [total Rs.900,000/] within one month [excluding deposited amount, if any]; [ii]. Cost shall follow the events.
26. Not only the 'assertions' made in the plaint but the evidence led from the Plaintiff's side, in support of her stand/claim, as well, was gone un-rebutted, as Defendant [Petitioner herein] failed to establish his stand. The Plaintiff's Suit No.1653 of 2012 [Mst.Shahnaz v. Muhammad Arif], for recovery of 'past maintenance', against the Defendant, was consequently decreed on 16.09.2017, in the above manner by the learned IXth Civil and Family Judge Karachi-West, after giving the brief facts in the background as follows:- "The Plaintiff performed Nlkah with the defendant on 21.12.1999 at Karachi per sharia against the dower amount of Rs.30000/- but Rukhsati never took over Nikahnama was registered by the defendant and said that if the Nikahnama will be registered he will seek accommodation for the residence as the defendant is working in Pakistan Atomic Energy Commission, Islamabad and as per their rules for the accommodation, he has to submit the registered Nikahnama. Therefore, father of the plaintiff continuously requested the parents of the defendant for Rukhsati but they always gave lame excuses and sought time. Lastly, before the filing of the present suit before 8 months, father of plaintiff strictly asked the defendant's family for Rukhsati but defendant refused to perform the Rukhsati after 13 years of the Nikah, Hence the present suit was filed by the plaintiff with the following prayers:
[a] To direct the defendant for performing of the marriage or alternative the plaintiff be awarded Khula in lieu of dower amount.
[b] To direct the defendant to pay the past maintenance of the plaintiff at the rate of Rs.30,000/- per month since 24.12.1999 which approx. calculated Rs.40,80,000/- for the last 156 months till the Order of the khula.
[c] To direct the defendant to pay maintenance in addition as per condition of Nikahnama at the rate of Rs.2,000/- per month of last 156 months.
[d] Any other or further relief[s] which this Honourable Court may be pleased to grant under the circumstances of the case.
The defendant was served and filed his written statement. The Defendant besides denying the adverse allegations admitted the factum of marriage. The defendant stated that the father of plaintiff was not ready for performing the Rukhsati of the plaintiff Plaintiff has not performed any legal duty of defendant. It is all fault of the plaintiff that the Rukhsati could not take place. Lastly, he prayed for dismissal of the suit of the plaintiff.
27. Upon passing of Decree on 16.09.2017, the Defendant [Petitioner herein], instead of paying the 'decretal amount' somehow, feeling himself 'aggrieved' by and 'dis-satisfied' with judgment and decree, opted to file Family Appeal No.101 of 2017 [Muhammad Arif v. Mst. Shahnaz], before the court of learned Addl. District Judge No.VIII Karachi-West 'inter alia' with a prayer for setting aside the Judgment and decree dated 16.09.2017, whereby, the Plaintiff's suit was decreed. The prayers sought in the Memo of Appeal No.101 of 2017 [Muhammad Arif v. Mst. Shahnaz], reads as follows:-- In view of the above, it is therefore, very respectfully prayed that this appeal may very kindly be accepted and impugned judgment dated 16.09.2017 and decree may very graciously be set-aside in the interest of justice after calling record and proceedings from the trial Court.
It is further prayed that the matter may very graciously be remanded to the trial Court for decision afresh after hearing the appellant and opportunity may be given to the appellant.
Any other relief/relives this Hon'ble Court may be deem fit and proper in the circumstances, of the case in the interest of justice.
28. The aforesaid Family Appeal No.101 of 2017 [Muhammad Arif v. Mst. Shahnaz], when came-up before the learned VIIIth Addl. District Judge and Sessions Judge Karachi-West, on 30.08.2018, then, upon hearing learned counsel for the parties, the same was dismissed, however, with no order as to costs. The 'material portion' of the Appellate's court judgment dated 30.08.2018 passed in Family Appeal No.101 of 2017, reads as follows: Primarily, under section 277 of Muhammadan Law, a husband is bound to maintain his wife unless she is too young for matrimonial intercourse, so long she is faithful to him and obeys his reasonable orders. In the present case, the nikahnama reveals that the girl/respondent was 18 years old and since no rukhsati had taken place, thus, the question of faithfulness and obeying the orders does not strictly applicable to the case. Even, if we consider the contention of the learned appellant's counsel that in absence of rukhsati no maintenance can be given, because no favour had extended from wife to husband, respectfully is misconceived. In his book namely Digest of Muhammadan Law Baillie has mentioned that; "when an adult women, who has not yet removed to her husband's house, ask for maintenance, she is entitled to it unless he has called upon her to remove; "
This shows that mere fact of no rukhsati would not debar a wife from claiming her maintenance unless she refuses to remove herself from her father's house on the orders of husband. In this case, respondent took plea that it was on the part of appellant that he did not called for rukhsati and she waited for 13 years. From the available evidence, especially the letter of appellant's father, it is not difficult to deduce that there was some delay on the party of appellant's side, which the father of the appellant tried to clarify. The appellant on the other hand, though cross-examined, the respondent/plaintiff, but chose nor to lead his evidence or produce any witness, which goes against his plea. It cannot be ignored that in our society the age of a girl is very crucial for the purpose of marriage and it is not difficult to foresee what actually went through the lady who waited for 13 years after nikkah for her rukhsati and indeed from the record she got married in 2017 at the age of 36 years of age. Thus, without any doubt, I am of the view that appellant being husband of the respondent was bound to maintain his wife and in the given circumstances when he had failed to prove that rukhsati was on account of failure of respondent side.
The learned trial court had fixed the amount of maintenance at Rs.25,000/- per month, which in my view is not exorbitant keeping in view that appellant is serving in BPS-20 in a prestigious department and his salary would not be less than Rs.200,000/- at present. Though the amount so decreed by the court cannot be a compensation for a time respondent had suffered, but at least in accordance with law, some compensation would relieve her pain [Emphasis Supplied].
Moreover, the instant family appeal is also not maintainable on account of non-payment of Court fee. It is admitted position that appeal is not filed on any stamp paper. I have gone through the case law of Hameeda Begum v. 1st ADJ and another [1988 CLC 1645] whereby Honourable Divisional Bench hold that Family Court is in fact a civil Court and any appeal under section 14 of Family Court Act filed before District Court falls under Article 1 of Schedule 1 of Court Fees Act and in case of non-payment, the appeal is liable to be dismissed.
Thus, on the basis of above observations, the point No.1 is answered as Negative.
(Point No.1 was/is to the effect and extent as to Whether the Judgment and decree dated 16.09.2017, passed by the learned 9th Family Judge Karachi-West, in Family Suit No.1653 of 2012 suffers from any illegality and require interference?'
29. The Petitioner herein, [Defendant], once again feeling 'aggrieved' by and 'dis-satisfied' with the 'concurrent findings' of the courts below, has now approached this Hon'ble court by way of filing the instant Constitutional Petition No.S-2342 of 2018, [Muhammad Arif son of Ali Asghar v. Additional Sessions Judge No. VIII Karachi West and others], 'inter alia' with a prayer that 'Judgment' and 'decree' passed by the learned IXth Civil and Family Judge Karachi-West [Annexure 'E/3' to the MoP] and maintained by the learned Additional District Judge, Karachi-West, through the 'impugned judgment' of 30.08.2018, herein [Annexure 'A' to the MoP], be set aside, as the same, besides being erroneous have been passed 'contrary to law' and without properly appreciating the 'materials'/'evidence' available on record. Further, both the impugned 'Judgments' and 'Decrees' [Annexure 'A' and 'E/3' to the MoP] even otherwise, are bad in law, as per the Petitioner's version, the 'MONEY DECREE', in fact has been passed without affording a chance to the Petitioner herein [Defendant], to 'examine' himself on oath.
30. On 29.10.2018, when the instant Constitutional Petition No. S-2342/ 2018 [Muhammad Arif son of Ali Asghar v. Additional Sessions Judge No. VIII Karachi West and others], came-up before this Court, on the Petitioner's urgent Application, then while, granting the urgent Application, the following order was passed: 29.10.2018 Mr. Altamash Faisal, Advocate for the Petitioner.
1. Granted.
2. Deferred till the next date of hearing.
3. Granted subject to just all legal objections.
4&5. Per learned counsel for petitioner, petitioner and Respondent No.3 married on 24.12.1999, but no Rukhsati took place till this date. However, per learned counsel for the petitioner Respondent No.3 filed Family Suit No.1653/2012 in the Court of X Family Judge, Karachi West for dissolution of marriage by way of Khulla and recovery of past maintenance. Per learned counsel for the petitioner, petitioner contested the aforesaid suit but as petitioner was posted at Haripur, therefore, he could not contest the suit properly and his evidence was not recorded, though he filed affidavit-in-evidence but was not cross-examined before the trial Court. The trial Court on 16.09.2017 decided the matter and partly decreed the suit of the Respondent No.3 by judgment dated 16.09.2017. Per learned counsel for the petitioner, petitioner filed Family Appeal No.101/2017 against the aforesaid judgment in the Court of District Judge, Karachi West and by judgment dated 30.08.2018, learned Additional Sessions Judge No.8, Karachi West, dismissed the appeal. Learned counsel for the petitioner contends that the judgments of both, the trial Court and Appellate Court are patently illegal as no Rukhsati took place therefore, awarding the maintenance is illegal and unlawful. Point raised requires consideration. Issue notice to the Respondent No.3. Subject to furnishing of surety to the extent of Rs.900,000/- [Rupees Nine Lacs], to the satisfaction of the Nazir of this Court, operation of the impugned judgments/decree shall remain suspended till the next date of hearing. [Emphasis Supplied].
Adjourned to 19.11.2018.
31. It appears that pursuant to and in compliance with order dated 29.10.2018, the 'requisite security' was not furnished. The 'non-furnishing' of the security/ surety is evident from the 'endorsement' of Deputy Nazir dated 23.11.2018 and 18.12.2018. Nonetheless, when later on, the matter came-up before the court on 21.05.2019, then, it was observed that order dated 29.10.2018, does not rule-out a 'Bank Guarantee' and resultantly Nazir of this Court was directed to accept the same. Accordingly, Bank Guarantee bearing No. ABL-176PB181025 dated 18.07.2019, M/s. Askari Bank Limited Sumbalhag Branch, 'Kahutta', in the sum of Rs.9,00,000/ - [Rupees Nine Lac only], was accepted. The Deputy Nazir report dated 13.09.2019, in this regard reads as follows: NAZIR'S ENDORSEMENT IN COMPLIANCE OF COURT'S ORDER DATED 30.08.2019 In compliance of Court's order dated 30.08.2019, Bank Guarantee bearing No. 3ABL-176PB181025 dated 18.07.2019 furnished by the authorized officers namely Messrs Hafiz Muhammad Fareed Haseeb son of Muhammad Haseeb and Syed Asif Haider son of Syed Razi Haider of Askari Bank Limited, Sumbalhag Branch Kahuta in the sum of Rs.9,00,000/- [Rupees Nine Lac only] on behalf of Petitioner vide Bond No.80149 dated
12. 09. 2019. This Guarantee has been accepted after obtaining NOC regarding amount from the learned counsel for Respondents
32. Lastly, on 23.10.2019 and 29.11.2019, when the above Constitutional Petition came-up before me then, I heard Mr. Altamash along with Mr. Muhammad Rehan, learned counsel for the Petitioner herein [Defendant] and Mian Muhammad Akram, learned counsel for Respondent No.3 herein [Plaintiff] and also gone through the available record before me minutely, with the valuable assistance of learned counsel for the parties.
33. Mr. Altmash Arab, learned counsel for the Petitioner [Defendant] while, arguing the case of the Petitioner forcefully, contended that both the courts below have badly failed while, passing the 'impugned' judgments and decrees [Annexure 'A' and 'A/3' to the Mop] to either properly apply their judicial mind and/or otherwise, to appreciate the 'evidence' / 'materials' available on record in its' 'true perspective'. Per learned counsel, both the courts in fact have erred in law while, deciding the matter without considering the 'contents' of the Defendant's 'written statement' and 'affidavit-in-evidence' merely for the reason that the Petitioner herein [Defendant], has failed to appear, lead evidence and put himself to 'cross-examination' before the trial court in Family Suit No.1653 of 2012 [Mst. Shehnaz daughter of Khalil ur Rehman v. Muhammad Arif].
34. According to Altamash Arab, learned counsel for the Petitioner herein [Defendant], both the 'impugned Judgments' and 'Decrees' are not only suffering from 'mis-reading', 'non-reading' of evidence but the same are also bad on account of material 'irregularities' and 'illegalities' committed by both the courts below. Per learned counsel, the Petitioner [Defendant] though accepts in his 'written statement'/'Affidavit-in-Evidence' the factum of his 'Nikah' with Respondent No.3 [Plaintiff] on 24.12.1999 but as far as 'Rukhsati' of Mst. Shahnaz daughter of Khalil-ur-Rehman, is concerned, the same could not take place as Respondent No.3's parents despite all possible efforts on the part of Petitioner [Defendant], did not agree to allow.
35. Per Mr. Altamash Arab, learned counsel for the Petitioner, Respondent No.3, namely Mst. Shahnaz daughter of Khalil-ur-Rehman nevertheless, has failed to establish that her Non-'Rukhsati' in any manner was on account of the Petitioner's failure. Per learned counsel, the 'burden of proof' in this regard was lying on the shoulder of Respondent No.3 [Plaintiff] which burden, as evident from the record, has not been discharged satisfactorily.
According to Mr. Altamash Arab, the learned Additional District and Sessions Judge No. VIII Karachi-West, somehow, in an erroneous way, shifted the burden of proving of 'Non-Rukhsati', on the shoulders of Petitioner herein [Defendant] though it was solely and squarely lying on the shoulder of Respondent No.3 [Plaintiff], as it was she who approached the court of law by instituting legal proceedings i.e. Family Suit No.1653 of 2012 [Mst.
Shehnaz daughter of Khalil ur Rehman v. Muhammad Arif], before the Family Court. Filing of legal proceedings also amounts to refusal.
36. Mr. Altamash Arab, learned counsel for the Petitioner herein [Defendant], while, continuing his arguments next contended that the learned Appellate Court i e. learned Additional District and Sessions Judge No.VIII Karachi-West, has erred in interpreting the contents of letter dated 07.02.2012, written by the Petitioner's father to Respondent No.3's father. Per learned counsel, bare reading of the letter would show that the admission of delay from the Petitioner's side was only with a view to maintain the existing 'cordial' and 'good relationship'.
37. Mr. Altamash Arab, learned counsel for the Petitioner herein [Defendant], next contended that even, awarding of 'maintenance' in the sum of Rs.25,000/- [Twenty Five Thousand only], per month towards' Past Maintenance' of Respondent No.3 [Plaintiff], is without any 'justification', as in the case in hand, the marriage has not consummated as Rukhsati has never taken place. For this reason, as well, awarding of 'maintenance amount to Mst. Shahnaz daughter of Khalil-ur-Rehman, is contrary to law. In the case in hand, the 'Rukhsati' of Respondent No.3 [Plaintiff] since performance of her Nikah on 24.12.1999 with the Petitioner did not take place upto 27.11.2012, when a Family Suit No.1653/2012 [Mst. Shehnaz daughter of Khalil ur Rehman v. Muhammad Arif], for 'dissolution of marriage by way of Khulla' and recovery of 'past maintenance', was filed before the court of Xth Family/Civil Judge at Karachi-West. The grant of 'maintenance amount', without 'consummation' of marriage, per Mr. Altamash Arab, learned counsel for the Petitioner [Defendant], besides, being illegal is un- justified.
38. Mr. Altamash Arab, learned counsel for the Petitioner [Defendant] in support of his contentions placed reliance on the cases of [i] Mst. Rubina Bibi v. Muhammad Bashir Ahmed [2006 YLR 633] [ii]. Syed Rashid Ali Shah v. Mst. Haleema Bibi and 2 others [PLD 2014 Peshawar 226]. The relevant portions therefrom, on which reliance has been placed by Mr. Altamash Arab, learned counsel for the Petitioner [Defendant], are as follows: [i]. 2006 YLR 633:-
6. Muslim Family Laws Ordinance, 1961 is silent so far as past maintenance is concerned, therefore, the Court while interpreting the statute must keep in mind the intention of the Legislature. A wife who does not bother to live with her husband and perform her marital obligation is not entitled for the grant of maintenance allowance.
Here in this case the petitioner lived separately and even has not performed the marital obligations in spite of decree for restitution of conjugal rights in favour of the respondent No. 1. For what has been discussed above, I find that respondent No.2 has rightly passed the detailed order which needs no interference by this Court in Constitutional petition. Instant writ petition fails and the same is hereby dismissed. [Emphasis supplied] [ii]. PLD 2014 PESHAWAR 226:-
8. Beside that the perusal of the judgments of the trial court reflects that on failure of pre-trial reconciliation proceedings, marriage of the parties was dissolved vide order dated 24.2.2007 and thereafter issues were framed and parties were put to trial for recording pro- and contra evidence. The only provision which empowers the Family Court to dissolve the marriage of the parties in such manner is Proviso to section 10(4) of the West Pakistan Family Courts Act, 1964, which for ready reference and to properly appreciate the legal aspect of the case is reproduced herein below:- "10. Pre-trial Proceeding.--
(1) ...................
(2) ......................
(3) ............
(4) ...................
Provided that notwithstanding any decision or judgment of any court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage".
[Emphasis supplied]
9. Bare reading of the proviso envisages that in case of failure of reconciliation at pre-trial stage, the court shall not only pass a decree for dissolution of marriage forthwith but also restore the husband the Haq Mahr, received by the wife in consideration of marriage. In view of this legal position when it was crystal clear before the trial court that Rukhsati had not taken place arid the plaintiff wife is not willing to live with the husband in compliance of her marital obligation and the trial court due to the same reason, reached to a conclusion that re-union of the parties is impossible, had dissolved the marriage at pre-trial reconciliation stage, it was obligatory to restore Mahr/dower to husband received by the wife and there was no reason to go ahead with the trial to determine cruelty of the husband, which as observed earlier, was nothing else except second marriage of the petitioner/defendant. Whereas the same is not cruelty in view of legal position as discussed hereinabove. It follows that the marriage of the parties was dissolved on failure of pre-trial reconciliation proceedings by invoking the provision of proviso to Section 10(4) of the West Pakistan Family Courts Act 1964, on the basis of Khulla, so plaintiff was not entitled to the decree for recovery of dower as well as Maintenance. Rather she is legally required to return the articles and property received in lieu of dower. It is established on the record that plaintiff was given 25 Tola Gold ornaments at the time of Nikah and property was also transferred in her name , vide mutation No. 4573, dated 6.6.2002 measuring 41 Kanals, 7 Marla and 7 Sarsai and another property measuring 39 Kanal, vide Mutation No.2235, dated 6-6-2002.
11. So far as, the maintenance is concerned, she is also not entitled thereto because Rukhsati has not taken place and it was the plaintiff herself who filed suit for dissolution of marriage which was dissolved by the trial court on the basis of Khulla. Admittedly, in view of this factual position, there was no fault on the part of defendant/ husband and he was still seeking restitution of conjugal rights but it was the plaintiff who opted separation due to second marriage of defendant. She was already residing with the parents and marriage has not consummated, therefore, there was no obligation on wife to observe lddat and she was free to marry immediately. The same principle has been provided in para/section 257 of Muhammadan Law by Sir Dinshah Fardunji Mulla. It follows that there was no obligation on the husband to maintain wife in such situation, as such she is not entitled to any maintenance as well even for iddat period. [Emphasis supplied]
39. As against the above, Mian Muhammad Akram, learned counsel for the Respondent No.3, namely Mst.
Shahnaz daughter of Khalil-ur-Rehman while, defending the 'impugned judgments' /'concurrent findings' of the two [2] courts below vehemently contended that the Constitutional Petition in hand, as framed and filed against the 'concurrent findings' of two [2] courts below is not only 'devoid' of any 'merits' but under law the same is also not maintainable. Per learned counsel for Respondent No.3, [Plaintiff], in the present ease, the question of any 'mis-reading', 'non-reading' of evidence/materials, as was urged by Mr. Altamash Arab, learned counsel for the Petitioner [Defendant], does not arise, as the Petitioner [Defendant], in the case in hand, has failed to led any evidence though, as per record, ample opportunities were provided to him.
40. The Petitioner herein [Defendant], did file a 'written statement' and 'Affidavit-in-Evidence'. The Petitioner [Defendant], however, in his own wisdom avoided / failed to come forward to record his evidence and thereafter, put himself to 'cross:- examination by the Plaintiff's side. On the other hand, Respondent No.3 [Plaintiff], in support of her 'pleas'/ 'stand', not only examined herself as 'PW-1' but she has also gone through the rigoure of 'Cross-Examination'. Further, the Plaintiff namely Shahnaz daughter of Khalil-ur-Rehman, in support of her 'claim' / 'assertions', made in the plaint, also produced/ examined two [2] other witnesses namely [i] Muhammad Saleem as 'PW-2' and [ii] Muhammad Shafiq as 'PW-3'. All the three [3] witnesses have also been 'cross- examined' by the counsel for the Petitioner [Defendant]. In 'cross-examination' of 'PW-1', 'PW-2' and 'PW-3', however, nothing favourable, as far as, the case of Petitioner [Defendant], is concerned, has come on record.
41. Mian Muhammad Akram, learned counsel for the Respondent No.3 herein [Plaintiff], while advancing his arguments, next contended that 'concurrent findings' of two courts below, in the case in hand, do not need any interference even if, another conclusion can possibly be drawn. The exercise of Constitutional Jurisdiction, needless to say, is restricted only to the extent of 'mis-reading', 'non-reading' of materials/ evidence and that too if, the same has any bearing on the fate of the case. Mian Muhammad Akram, next contended, that in the present case, since evidence of Plaintiff's side, has gone un-challenged/un-rebutted, as such, the question of 'mis-reading', 'non-reading' under such circumstances, does not arise.
42. Per Mian Muhammad Akram, mere assertions made in the 'written statement' /' affidavit-in-evidence' , under law, cannot be relied upon/believed, as in support of the contents, no one has come forward to examine himself and go through the rigroure of 'cross-examination'. Mian Muhammad Akram, learned counsel for the Respondent No.3 [Plaintiff], next contended that mere filing of 'written statement', 'affidavit-in-evidence' and the contents thereof, do not constitute evidence. The same 'assertions, rather to be ignored, unless, it are admitted by the 'opposite party' which, however, is not the case in hand. As far as, the case in hand, is concerned, the Petitioner [Defendant] has failed to appear and lead any evidence. The 'assertions'/'contents' of a 'written statement' and 'Affidavit-in-Evidence' without 'cross-examination' could not be referred to as a piece of evidence and/or it be relied upon otherwise.
43. While, concluding his arguments, Mian Muhammad Akram, learned counsel for the Respondent No.3 [Plaintiff], contended in vehemence that in the case in hand, no evidence is available on record to support the case of Petitioner [Defendant], as such, the Petition in hand 'merits' no consideration and is liable to be dismissed with cost. Mian Muhammad Akram, learned counsel for the Respondent No.3 [Plaintiff] in support of his contentions placed reliance on the cases of [i]. Mst. Farhat Jabeen v. Muhammad Safdar [2011 SCMR 1073], [ii]. Muhammad Ilyas and others v. Muhammad Sharif and others [2001 CLC 1194], [iii]. Messrs Society Oil Dealers, Karachi v. District Judge, Karachi and another [2003 MLD 205], [iv]. Abdul Majeed v. Syed Muhammad Ali Shamim and 10 others [2000 SCMR 1391], [v] Hakim-Ud-Din through L.Rs and others v. Faiz Bakhsh and others [2007 SCMR 870] [vi]. Muhammad Akram and another v. Mst. Farida Bibi and others [2007 SCMR 1719].
44. The 'relevant portions' therefrom, on which Mian Muhammad Akram, learned counsel for Respondent No.3 [Plaintiff], has placed reliance as follows:- [i]. 2011 SCMR 1037:-
3. Heard. From the impugned judgment of the learned High Court, it is eminently clear that the evidence of the respondent side was only considered and was made the basis of setting aside the concurrent finding of facts recorded by the two courts of facts whereas the evidence of the as appellant was not adverted to at all, touched upon or taken into account, this is a serious illegality committed by the High Court because it is settled rule by now that interference in the findings of facts concurrently arrived at by the courts, should not be lightly made, merely for the reason that another conclusion shall be possibly drawn, on the reappraisal of the evidence; rather interference is restricted to the cases of misreading and non-reading of material evidence which has bearing on the fate of the case. [Emphasis supplied] [ii]. 2001 CLC 1194:- 4....Be that as it may, learned Additional District Judge found it proper to go by the said averments in the written statement. Now while doing so the learned Additional District Judge simply forgot that under the law of the land pleadings do not constitute evidence of their contents. On the other hand, the facts pleaded, unless admitted by the other party have to be proved. It is a matter of record that none of the persons i.e. respondents Nos. 1, and 4 who are stated to have filed the said written statement appeared in the witness-box to support the contents thereof. Without cross-examination of the said person, the written statement could not have been read into evidence and even if the written statement could be referred to as apiece of evidence it cannot be relied upon as an evidence of the fact stated in it. Learned counsel for the appellants has relied upon the case of Abdul Majid v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391 in support of the said proposition. I find that the Supreme Court of Pakistan had reaffirmed the rule laid down in the case of Khair-un-Nisa v.
Muhammad Ishaque and others PLD 1972 SC 25, and has observed that "It is trite law that pleadings are not evidence by themselves and that a statement of a defendant in written statement could not be used as evidence when amounting to admission of plaintiffs pleas, without the examination of the concerned party in its support." [Emphasis supplied] [iii]. 2003 MLD 205:- The petitioner after filing the written statement and affidavit-in-evidence avoided/failed to appear in the fitness- box, thus, has failed to place his defence before the Court. In the use of Mst. Khairul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others, reported in PLD 1972 SC 25, it has been observed by the Honourable Supreme Court of Pakistan that written statement filed by a party who failed to appear in the witness-box is of no value. In the instant case, I am of the view that the defence based on such written statement cannot be looked into. Even otherwise, the pleadings of the parties cannot be equated as evidence. This view has been affirmed by he Honourable Supreme Court in the case of Malik Muhammad Ishaque Messrs Erose Theatre and others, reported in PLD 1977 SC 109... ". [Emphasis supplied] [iv]. 2000 SCMR 1391:-
20. "...It is trite law that pleadings are not evidence by themselves and that statements of a defendant in written statement could not be used as evidence when amounting to admission of plaintiffs pleas, without the examination of the concerned party in its support. See, Khairul Nisa v. Muhammad Ishaque and 2 others (PLD 1972 SC 25) and Muhammad Ishaq v. Erose Theatre and others (PLD 1997 SC 109)....".
[v]. 2007 SCMR 870:-
5. ...It is an admitted fact that respondent did not appear before the trial Court to prove the contents of the plaint.
It is a settled law that pleadings of the parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in Court or admitted by the other party.... It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim. See Muhammad Sajjad Hussain's case 19911 SCMR 703 and Muhammad Siddique's case 2001 SCMR 1443. It is a settled law that written statement/plaint is not substitute of evidence. The aforesaid principles are supported by the following judgments:-
(i) Mst. Khair-un-Nisa's case PLD 1972 SC 25, (ii) Mst. Zarina's case PLD 1995 Kar. 388, (iii) Noor Muhammad's case PLD 1989 Lah, 31, (iv) Mst. Sakina's case 1986 CLC 288, (v) Falak Sher's case 1992 MLD 1879, (vi) Nizam-ud-Din's case 1991 CLC 1937 and (vii) Faqir Muhammad's case PLD 2003 SC 594.
[Emphasis supplied] [vi]. 2007 SCMR 1719:- 6.... It is a settled law that nobody should get the benefit of the weaknesses of the defendants' plea. See Mian lqbal Mehmood Banday's case PLD 1995 SC 351 and Faqir Muhammad's case 2003 YLR 1285. Both the Courts below erred in law to decide the case in favour of the respondents in view of aforesaid portion of the cross-examination D.W.1 . We have examined the whole evidence of D.W.1, we do not find that D. W.1 had accepted the superior right of respondents. It is also a settled law that party can only succeed according to what was alleged and proved as law laid down by this Court in Amir Shah's case 1998 SCMR 593. It is a settled law that pleadings of the parties are not substantive piece of evidence unless and until the averments made in the pleadings proved from the evidence in Court or admitted by the other party. See Faqir Muhammad's case PLD 2003 SC 594. [Emphasis supplied] 6-A. ...It is pertinent to mention here that Qanun-e-Shahadat Order, 1984 is a code complete in itself as to the mode of proof of facts by way of oral and documentary evidence. The document in question was not proved by the respondents in terms of the said code. It is a settled law that where a document is produced in Court but neither author of the document is produced nor Patwari appeared in support of his note written, it was held that such document was not proved.6 See Malik Muhammad Akram's case 2000 CLC 759 and Muhammad Jamal's case 1985 CLC 2353. [Emphasis supplied]
45. Heard and perused the record.
46. From the record it reveals, that the 'NIKAH' of the Petitioner [Defendant] and Respondent No.3 [Plaintiff] was admittedly performed and registered on 24.12.1999. The Petitioner, however, despite lapse of about thirteen 1131 years, did not make any efforts to take the 'Rukhsati', till 10.04.2013, when the marriage between Respondent No.3 [Plaintiff] and Petitioner [Defendant], was dissolved by way of 'Khula' through a 'Preliminary Decree' dated 10.04.2013, passed by learned Xth Civil/Family Judge Karachi-West, in Suit No.1653 of 2012 [Mst. Shehnaz daughter of Khalil ur Rehman v. Muhammad Arif] after failing of 'pre-trial' proceedings.
47. Evidently, for about thirteen [13] years since, 24.12.1999, when the Petitioner 'Nikah' was performed, the Petitioner [Defendant] neither divorced Respondent No.3 [Plaintiff] so that she may marry to someone else nor otherwise, he bothered to file any legal proceedings for Restitution of conjugal rights. Taking the 'Rukhsati' of Respondent No.3 namely Mst. Shanaz was the legal and moral responsibility of Petitioner [Defendant]. The Petitioner however, for about thirteen [13] years did not take the Rukhsati of Respondent No.3 which ex-facie has caused great injustice to Mst. Shahnaz daughter of Khalil-ur-Rehman. Moreover, under Islamic Law, it is the husband, who is under obligation to maintain his wife and children. The stand of Respondent No.3 [Plaintiff], has been fully established through the evidence of Mst. Shahnaz [PW-1] and her two [2] witnesses i.e. 'PW-2' and 'PW-3'. As far as, the Petitioner [Defendant], is concerned, he, however, did not lead any evidence except to cross-examine the Plaintiff and her two [2] witnesses but in favour of the Petitioner [Defendant] nothing fruitful has come on record.
48. No doubt, the Petitioner herein [Defendant], filed his 'written statement' and 'affidavit-in-evidence' in Family Suit No.1653/2012 [Mst. Shehnaz daughter of Khalil ur Rehman v. Muhammad Arif), filed by Mst. Shahnaz daughter of Khalil-ur-Rehman for 'Dissolution' of marriage by way of 'Khula' and recovery of 'past maintenance'. The Petitioner herein [Defendant], however, despite providing several opportunities to him, did not come forward to record his 'examination-inchief' and go through the drill of 'cross-examination' by the opposite party. The 'Affidavit-in-Evidence'/'written statement', in view of this position, do not constitute or otherwise, can be treated a legal and valid evidence. The 'written statement' and 'Affidavit-in-Evidence' filed by the Petitioner [Defendant], in Family Suit No.1653/2012, was thus rightly excluded from consideration by the learned courts below. The un-rebutted/ un-challenged version of Respondent No.3 [Plaintiff] thus for all intents and purposes was 'deemed' and 'considered', as a valid and binding factor for passing a decree in the Plaintiff's suit. This court, it is needless to say, under the constitutional jurisdiction cannot interfere in the 'concurrent findings' of two courts below otherwise, this court will go beyond the scope of Article 199 of Constitution of Islamic Republic of Pakistan, 1973.
49. Mr. Altamash Arab, learned counsel for the Petitioner [Defendant], without disputing the aforesaid 'legal position', nevertheless, opted to place reliance on the Evidence of the Respondent No.3 [Plaintiff]. Per learned counsel, it was the Plaintiff and her family who delayed the 'Rukhsati' of the Respondent No.3 since, 24.12.1999, when her Nikah was 'performed' with the Petitioner [Defendant]. Further, the delay remained continue for about thirteen [13] years when Respondent No.3 herein [Plaintiff] filed a Family Suit on or about 27.11.2012. Per learned counsel, no doubt, right from the date of 'Nikah', i.e. on 24.12.1999, legal consequences for all practical purposes flow but in the case in hand, 'Non-Rukhsati' of Respondent No.3 [Plaintiff], is not a sole responsibility of the Petitioner [Husband-Defendant] and this position can be seen and established from the Plaintiff's evidence.
50. For proper appreciation the contention of Mr. Altamash Arab, learned counsel for the Petitioner [Defendant], at this juncture, both the 'Examination-in-Chief' and 'Cross-Examination' of Mst. Shahnaz daughter of Khalil-ur- Rehman ['PW-11, recorded in Family Suit No.1653/2012 [Mst. Shehnaz daughter of Khalil ur Rehman v.
Muhammad Aril], are reproduced here-in-below:-.
IN THE COURT OF XTH CIVIL AND FAMILY JUDGE AT KARACHI [WEST] BEFORE:- [MRS. SHEHNAZ BOHYO] F.S. NO.1653/12 Mst. Shehnaz daughter of Khalilur-Rehman, Muslim, Adult, R/o H# SH-673 Stzeet # Haryana Colony Orangi Town Karachi Plaintiff versus Muhammad Arif son of Ali Ashgar, Muslim, Adult, R/o Mohalla Darwaish City Haripur, G.P.0, District Haripur Province Khyber Pakhtunkhwa Defendant DEPOSITION OF WITNESS P. W. I I do hereby on solemn affirmation state that:-- Name Shehnaz F/Name Khalil-ur-Rehman Religion Islam Caste. Tanoli Age 27 years Occupation Examination - in - chief by Mr. Shmraiz Khan advocate for plaintiff. That am the plaintiff in this matter I produce my affidavit-in-evidence as Ex. P/1-A, which is same and correct. I produce the original Nikahnama and T.C.S. receipt of legal notice, which are seen and returned copy as Ex.P/1-B and P/1-C.
XXX by Mr. Ghulam Mustafa advocate for defendant I am only 8 class pass. I can read the contents of my Nikahnama. It is correct that the signature of defendant is not present in Nikahnama. Vol-says on his behalf his witnesses were present. I had not produce the power of attorney or authority letter given by defendant to such witness for signing Nikahnama on his behalf That in column-17 of Nikahnama Rs.2000/- per month is mentioned in case of any dispute between spouses. It is correct that my rukhsati did not take place. At first the attitude of defendant was good but after 4 years of Nikah our relation became strained. It is fact such fact is not mentioned in my plaint and affidavit-in-evidence. It is incorrect that during the period of nikah the defendant sent me money order and gifts regularly. Vol. says on Eid Occasion Rs.1000/- or 2000/-and sent clothes for me. It is incorrect that detail of money order and gifts mentioned in Annexure D/3 of W/S was received by me. Vol-says the money were in the name of my father and amount and gift was also sent for me and defendant's sister in our client. It is correct that I had received all money order except one of Rs.2000/- was refused by my brother Aqeel Ahmed on 23.08.2012. I know the contents of my plaint. The contents of para-6 of my plaint are correct.
It is incorrect that I had not sent the legal notice, the legal notice is sent by my father. It is correct that I had not file the proof of my allegation that the defendant only registered the Nikahnama and get the government accommodation. It is incorrect that defendant had not obtained any government accommodation on the basis of nikahnama. I can't produce the proof regarding obtaining government accommodation on the basis of Nikahnama. It is correct that the defendant is residing with bechlor in flat. I had never contacted the defendant on phone. It is correct that on 18.02.2011 the defendant got accident and lost his arm and in the month of March-2011 I and my father went to visit and did not visit the defendant. It is also correct that I had not file the income proof of defendant Rs.1,50,000/- in Court. Vol says his parents told me. I can't produce the proof in court about the defendant job in 20 grade and his salary Rs. 1,50,000/-. I never asked from defendant about his job and income as we had not talked with each other. I do not know whether the defendant had contracted second marriage or not. It is correct that the defendant came on the death of my mother and stayed at my house but it is incorrect that I had talked with the defendant. I had never talked to defendant on phone from the date of Nikah till today. It is incorrect that several time the defendant tried to contact me on my mother and other family members mobile. Vol-says he talk to only my family but not with me. It is incorrect that the main case of dispute between us was that my father demanded for enhancement of dower from Rs.30,000/- to Rs.10,00,000/- monthly maintenance from Rs.2,000/- to Rs.10,000/- and other gold ornaments weighted about 15 tola. It is incorrect that on 07.02.2012 the defendant's father wrote detail letter to my father for demanding Rukhsati. It is incorrect that the defendant's father request to my relative Shah Zaman and my father Shafiq-ur-Rehman for Rukhsati. It is correct that I never made one attempt to talk to defendant. It is also correct that I personally had never asked the defendant for Rukhsati. It is also correct that I had not file any application in government department. It is correct that I had never refused for gift sent by defendant except 23.08.2012. I do not know the qualification of defendant. I also do not know the age of defendant. It is incorrect that the main reason for delay of Rukhsati was on our part. The defendant is my first real maternal cousin. It is incorrect that our relation suffered due to my and my parents side, vol-says on their part. I forget the name of department where the defendant is working. The defendant is serving in Islamabad. It is incorrect that the defendant is not doing government job in Islamabad. I can't read English. It is correct that in plaint it is not mentioned that I can't read English. It is incorrect that I can't claim for my past maintenance of 13 years being Rukhsati not taken place due to our fault. Vol-says it was fault on their fault. It is correct that I had not mentioned in my 'plaint about the gifts and money order received from defendant. It is incorrect that I am deposing falsely in Court.
No.Re. S.R.O. & A.C.
Sd-Witness Sd/- 17.09.2013 [Mrs. Shehnaz Bohyo] Xth Family Judge Karachi West
51. As far as, the contention of Mr. Altamash Arab, learned counsel for the Petitioner [Defendant] to the extent and effect that in the case in hand, Rukhsati of Mst. Shahnaz daughter of Khalil-ur-Rehman since her Nikah on 24.12.1999 till her Khula on 10.04.2013, under the decree of court, has not taken place and the marriage has also not been consummated, as such, Mst. Shahnaz daughter of Khalil-ur-Rehman [Respondent No.3 herein], is not entitled to claim any 'maintenance' is concerned, the same cannot be accepted, as the Respondent No.3 [Plaintiff] upon 'performance' of her 'Nikah' had attained the status of wife and she remained in such capacity till 10.04.2013, when she was granted Khula by the Family Court. Even such release of Respondent No.3 herein [Plaintiff], does not effect the liability of the husband to maintain his wife during subsistence of the marriage. In this regard, reliance can be placed on the cases of [i] Khudinoor v. District Judge Pashin and 2 others [2017 YLR 2349 (DB)] and [ii] Mst. Shamim Akhter v. Additional District Judge, Sialkot and another [1991 CLC 1142], wherein, it was observed as follows:-
[ii] 2017 YLR 2349 JDBJ "...Admittedly, a Muslim wife is entitled to get maintenance as of right from her husband. The plaintiff attained the status of wife of the petitioner about eleven years ago before filing of the suit, when she entered into a Nikah with him and after such date, it was his liability to provide maintenance to the respondent No.3/plaintiff, who was his wife. This right which has also been recognized in view of paragraph 320 of Muhammadan Law by D.F. Mulla with regard to a Muslim wife seeking divorce/ Khula. A divorce effected by Khula or Mubaraat operates as a release by the wife of a dower but it does not affect the liability of the husband to maintain the wife during her Iddat. The learned Lahore High Court Lahore in case of "Shafiqan Bibi v. Senior Civil Judge/Judge Family Court, Okara and another" (1999 CLC 160) has held that the maintenance has always been considered as not a "benefit" but a "right" of wife and it was held that the judgment and decree of the Judge Family Court to the extent of withdrawing the benefit of dower in lieu of Khula was correct in making decree conditional on returning of the same but the claim of maintenance was held as not a "benefit" received by the wife from husband. Further, it was a duty of husband to maintain his wife so long as she remained in wedlock. Earlier in case of "Iftikhar Ahmed v. Hassan Pari and others" [1988 CLC 2355], it was held that wife was entitled in law to maintenance and would not forfeit such right merely because she had sought divorce on the basis of Khula. Such principle of law, as noted above, also found support from another reported case of "M.
Saqlain Zaheer v. Mst. Zaib-un-Nisa Zaheer alias Zaibi and another (1988 MLD 427).
15. The learned Lahore High Court Lahore in case of "Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another" (1991 CLC 11421 has dealt with similar situation where "Rukhsati" did not take place and the husband refused on that score alone the provision of maintenance to the wife and it was held that irrespective of the fact that whether "Rukhsati" takes place or not, it is the entitlement of the wife to have maintenance from her husband during subsistence of marriage and the wife was held entitled to the maintenance for a period the marriage between the parties had subsisted. Even after divorce, till completion of Iddat the wife is still entitled to claim maintenance and the fact that whether suit for recovery of maintenance was filed during subsistence of marriage or afterwards was of no significance, if during period for which maintenance was claimed, marriage in between the parties remained intact. (Emphasis supplied]
[ii] 1991 CLC 1142
5. As regards the contention of the learned counsel for respondent No.2 that a wife can be for recovery of maintenance during the subsistence of marriage but cannot file any suit after the marriage has been dissolved, there does not appear to be much force in it. There can be no dispute that the marriage is a civil contract and any obligation arising thereunder is enforcible under the law. Whether the suit for recovery of maintenance is filed during the subsistence of marriage or afterwards is of no significance, if during period for which maintenance is claimed the marriage subsisted. Reliance of the learned counsel on the above-cited precedent in Mst. Naziran Bibi's case is not apt for that there the dispute arose out of an application under the Muslim Family Laws Ordinance, 1961, which provides that a wife may apply for grant of maintenance against the husband, before the Arbitration Council. The plea that such an application can only be made during the subsistence of marriage is founded on the premises that after the dissolution of marriage, a wife becomes an ex-wife and husband an ex-husband and, therefore, she cannot invoke Section 9 of the Muslim Family Laws Ordinance, 1961. There appears to be a difference of opinion even on this aspect of the matter (vide Muhammad Najeeb v. Abdus Sattar and 6 others (1989 SCMR 119), but suffice it to say for the present, there is no such provision in the Punjab Family Courts Act, 1964, putting constraint on power of Court to grant maintenance during the subsistence of marriage only. [Emphasis supplied]
52. Manifestly, the Petitioner herein [Defendant], did not take any positive/concrete steps for taking the 'Rukhsati' of the Respondent No.3 [Plaintiff]. Thus, she was not only subjected to 'cruel behavior' but also deprived her for almost thirteen [13] years to enjoy a happy married life. Further, as observed 'concurrently' by the learned courts below, a great injustice was caused to Mst. Shehnaz daughter of Khalil-ur-Rehman [Respondent No.3 herein] who waited for Rukhsati for a long period of about 13 years, and get married in the age of thirty six [36] years, but only after passing of a decree for 'Khula' on 10.04.2013 in Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Aril], under such circumstance, both the learned courts below in my humble view, are right in allowing the 'maintenance amount', in favour of Respondent No.3 [Plaintiff]. Both the 'judgments'/ 'decrees', passed by the courts below, in no manner, are suffering from any 'mis-reading', 'non- reading'. In this regard, reference can be made to Article 284 of Institutes of Mussalman Law by Nawab A.F.M.
Abdur Rahman which reads as follows:- - "284 Where husband is not released from his liability to pay maintenance-Unless there is an agreement to the contrary, the husband at the time of Khula' repudiation is not released from the duty of providing his wife with maintenance and lodging during the period of her Iddat.
53. In the present case, the 'Nikah' of the Petitioner herein [Defendant], was admittedly performed on 24.12.1999. Respondent No.3 [Plaintiff] remained as a wife of the Petitioner till her marriage was dissolved with the Petitioner herein [Defendant] vide order 10.04.2013, by the court of learned Xth Family Judge Karachi-West, which was followed by a 'Preliminary Decree', passed in Family Suit No.1653 of 2012 [Mst. Shahnaz v.
Muhammad Arif]. The Petitioner herein [Defendant], as per record, ex-facie failed to take efforts for his 'conjugal union' with Respondent No.3. The question of refusal, as far as, Respondent No.3 [Plaintiff] is concerned, does not arise. The 'Non-Rukhsati' of Mst. Shahnaz daughter of Khalil-ur-Rehman could not be used to deprive her of the maintenance amount during subsistence of her marriage.
54. Apart from the above, the Petitioner herein [Defendant-Appellant], did not pay the requisite 'court fees' on the Memo of Appeal [MoA], and this position is quite evident from the Judgment dated 30.08.2018, [Annexure 'A' to the Mori passed by the court of learned Additional District and Sessions Judge Karachi West. In this view of the matter, as well, the Family Appeal No.101 of 2017 [Muhammad Aril v. Mst. Shahnaz], was rightly dismissed. On the aforesaid aspect of the matter reference can be made to the case of Hameeda Begum v.
First Additional District Judge and another [1988 CLC 1645], wherein, it was held/ observed that 'court fees' on the Memorandum of Appeal [In short MoA] is payable under Article 1 of Schedule 1 of the court fees Act [VII of 1870], advalorem on the subject matter of dispute.
"2... that an appeal is a continuation of a suit and unless there are specific provisions for payment of different court-fees,