' The background in which this Writ Petition has been filed is this that the petitioner was married to Mst. Rafia Bibi, respondent No. 1, on 4-4-1980 and the Nikah was accordingly registered, but the Rukhsati never took place up-to-date. Eventually, respondent No. 1 filed a suit for the dissolution of her marriage as against the petitioner on the grounds that the petitioner had misrepresented himself as a bachelor whereas he had already been married to another woman and even had a child from her, that he was a bad character and that he was addicted to wine. Thus, she prayed for the dissolution of her marriage on the ground of Khula. The suit was decreed in her favour vide judgment and decree dated 21-2-1982 passed by the Judge Family Court, respondent No,
2. The operative part of the judgment was as follows : "The upshot of my above discussion is that case of the plaintiff stands established. Therefore, I hereby grant decree for dissolution of marriage in favour of plaintiff against defendant subject to return of ornaments, consisting of two golden hars, two golden ear rings, two golden rings till 28-2- 1982 otherwise her suit would stand dismissed."
' The writ petitioner has challenged the aforesaid judgment and decree on the following two main grounds :-
(I) That respondent No. 1 did not tender or return the ornaments as directed by the Judge Family Court to the petitioner and since the condition had not been fulfilled by that stood dismissed and she continued to remain in the petitioner as his wife, and
(ii) that the petitioner was not given opportunity by the Court to produce his witnesses.
' It is contended by learned counsel for the petitioner that the Judge, Family Court before whom the matter was sub judice did not allow the petitioner to get his witnesses examined. Thereafter the matter was entrusted to another Judge Family Court. It is stated in the impugned judgment by him that respondent No. 1 led full evidence in support of her averments but the evidence of the petitioner was closed by the previous Court. However, after the transfer of the suit to the subsequent Court the petitioner filed an application for production of evidence and in order to meet the ends of justice be was allowed to make a statement in support of his version. It is submitted by learned counsel for the petitioner that only the statement of the petitioner was recorded in support of his version but the Judge Family Court did not allow his witnesses to be produced or their statements to be recorded despite the fact that he had deposited the process- fee. On the other hand, learned counsel for respondent No. 1 argues that initially the petitioner had not attached a list of witnesses to be produced by him as required under section 11 subsection (2) of the Family Courts Act 1964 which was a mandatory requirement. It is further argued that subsequently the petitioner was given many opportunities by the Judge Family Court to produce his witnesses but as he did not produce them, the Judge Family Court was justified in closing his evidence. Thereafter the moving of. The Judge Family Court, to whom the case had been subsequently transferred, another application for production of evidence by the petitioner was not in accordance with law and the said Court could not entertain such an application when once the evidence had been closed. Nevertheless, the Judge Family Court, in order to meet the ends of justice allowed the petitioner to make a statement in support of his version.
2. The record of the case was summoned and examined by me. It reveals that on 2-2-1981 the Judge Family Court recorded the statements of for witnesses of respondent No. 1. On 22-2-1981 the statement of respondent No. 1 was recorded and thereafter, the case was adjourned for the evidence of the petitioner to 14-3-1981. On 14-3-1981 the petitioner did not put in appearance and the Judge Family Court observed that summons had not been issued by the Ahmad because the petitioner had not submitted list of his witnesses within three days from the date of the framing of the issues. Therefore, the petitioner was not entitled to procure attendance of his witnesses through the process of Court. However, indulgence was shown and the petitioner was permitted to have the process of the Court issued for those witnesses who were Government servants and the case was adjourned to 31-3-1981 for petitioner's evidence on his own responsibility. On that dace the Judge Family Court happened to be on leave and was subsequently transferred. Thus, the case was also transferred to the Court of Mr. Akhtar Hussain Zahid before whom the counsel for the parties appeared on 28-9-1981. The case was adjourned to 14-10-1981 for recording statements of witnesses of the petitioner on his own responsibility. On that date again the petitioner's witnesses were not present. The Judge Family Court called for a report from the Alma as to when the process-fee had been deposited by the petitioner. The report was to the effect that it was deposited on 7th or 8th of October, 1981. On this the Judge, Family Court observed that the petitioner was not vigilant and even himself was not present on that date. Consequently, the evidence of the petitioner was closed and the case was fixed for 24-10-1981 in order to make another attempt to effect compromise or reconciliation between the parties. On 24-10-1981 while the petitioner was not present, respondent No. 1 appraised the Court that she was not prepared to live with the petitioner as his wife in any case. Thus, the case was adjourned for arguments an 12- 11-1981. In the meantime the petitioner moved an application before the District Judge for transfer of the case and the case was eventually transferred to the Court of Mr. Ziaullah Khan Niazi. The case was taken up by Mr. Ziaullah Khan Niazi, Judge Family Court, on 16-11-1981 when an application was filed by the petitioner which after due process and hearing arguments was dismissed vide his order dated 9-12-1981. But in this order the Judge Family Court allowed the petitioner to appear as his own witness and get his statement recorded. The case was adjourned to 20-!2-1981 on which date the statement of the petitioner was recorded. Thereafter, the case was fixed for 5-1-1982. Final arguments were heard on 20-1-1982 and eventually the judgment was announced on 21-2-1982.
The perusal of the order-sheet indicates that despite the directions of the Judge Family Court on 14-3-1981 and 14-10-1981, the petitioner did not produce his witnesses nor was he himself present and that furthermore be had not submitted the list of his witnesses within three days from the date of the framing of issues as required under the law. Despite this the case was adjourned to 31-3-1981 for recording statements of witnesses of the petitioner at his own responsibility, but no witnesses were produced. Then on 28-9-1981 once again the petitioner was afforded an opportunity by the Judge Family Court to produce his witnesses on his responsibility on 14-10-1981 but he tailed. Thus, it is evident that the petitioner had been given numerous opportunities to produce his witnesses but since he did not do so, it does not lie in his mouth now to say that he had been condemned unheard. Under section 11 of the Family Courts Act on the date fixed of the recording of the evidence the Judge Family Court is expected to examine the witnesses produced by the parties in such order as he deems fit and that the Judge Family Court cannot issue summons for the appearance of an witness unless within three days of the framing of issues a party intimate the Court that it desires a witness to be summoned through the Court and the Court is satisfied that it is not possible for such party to produce the witness. These provisions are mandatory in nature and, therefore, any party failing to submit list of his witnesses would not be entitled to have them a summoned through Court. In the present case, since the petitioner did not submit the list of witnesses within the prescribed time limit, he cannot have any grievance if the Judge Family Court had declined to summon his witnesses through Court. Even when the petitioner was given opportunities to produce his witnesses at his own responsibility he did not do so. In spite of all the the Judge Family Court took a liberal view and allowed him to bring his own witnesses on numerous dates and when this could not be done the Court allowed the petitioner to get his statement recorded in support of his own version. It was laid down in Syed shoukat Abbas v. Mst. Tiushra Rani and another (1) that the Judge Family Court can close the evidence of a party which fails to adduce evidence without sufficient cause.
' In the light of the above discussion I am of the considered view that the perusal of the order-sheet reveals that the petitioner had not been B condemned unheard and that in any case the writ petition does not lie on a question of fact. {{FOOT NOTE}}
(1) PLD 1982 Lah. 281 {{FOOT NOTE}}
3. So far as the next contention of learned counsel for the petitioner is concerned, the substance of his argument is that the dissolution of marriage was allowed on the basis of Khula but it was a conditional order. The argument is that the Court had allowed the dissolution of marriage in favour of respondent No. 1 against the petitioner subject to the return of the ornaments till 28-2-1982 and that if this was not done; her suit was to stand dismissed. It is contended by learned counsel for the petitioner that respondent No. 1 did not fulfill the condition. On 28-1-1982 she moved an application to the effect that she was ready to give the said ornaments into the custody of the Court. This application of respondent No. 1 was not accepted by the Judge Family Court which on 27-2-1982 ordered for the deposit of the said ornaments in a locker of any Bank. It is argued that the Judge Family Court did not extend the time but directed respondent No. 1 to deposit the said ornaments in a locker of any Bank on 27-2-1982. Respondent No. 1 did not comply with this direction within time but instead hired a locker on 3-3-1982 in her own name. The deposit, therefore, of the ornaments was not legal and, therefore, constituted a bar on the decree. According to learned counsel if the tender had not been made by her within the specific period, but thereafter the ornaments had been deposited-in the locker opened in her own name, it did not amount to a legal tender as held in Muhammad Umar v. Muhammad Yousaf (1). In that case it was held that the tender of rent not directly made to landlord after expiry of 30 days was not to be considered as a tender in the eye of law. Reliance was also placed on Allah Ditta v. Shahzadi Bilqis (2) in which it was held that omission to mention the name of the person on whose behalf the rent was tendered amounted to tender not being regarded as legal tender.
' In reply to these arguments of learned counsel for the petitioner, learned counsel for respondent No. 1 mainly argued that the Judge, Family Court granted decree of dissolution of marriage in favour of respondent No. 1 and against the petitioner on the ground of Khula. So far as the return of the ornaments is concerned, respondent No. 1 had tried her level best to return the said ornaments to the petitioner but she failed to do so. Consequently, before the target date she presented an application, before the Judge Family Court requesting that the petitioner be called to receive the ornaments. On this application proceedings were taken and vide order dated 27-2-1982 respondent No. 1 was directed to deposit the ornaments in some locker of the Bank. This was faithfully complied with and even now if the petitioner wants he could get the ornaments back.
Learned counsel for respondent No. 1 also argued that respondent No. 1 was entitled to Khula as of right as she had succeeded in satisfying the conscience of the Court that she, under no circumstances, was prepared to live with the petitioner. In that view of the matter, relying on Mst.
Khurshid Bibi v. Babu Muhammad Amin (3) it was urged that dissolution of her marriage on the basis of Khula was based on the fact that she had been successful in satisfying the conscience of the Court that it would otherwise mean forcing her into a hateful union with the petitioner. As for the condition of the return of specific ornaments is concerned, it was argued that it did not affect conclusion i. e. Dissolution of marriage by Khula` but only created a civil liability with regard to the benefits to be returned by the wife to the husband and did not affect dissolution itself. In this connection reliance was placed on Akhlaq Ahmad v. Kish war Sultana (4). {{FOOT NOTE}}
(1) PLD 1977 Lab. 676 (2) 1980 SCMR 41 (3)PLD 1967SC97 (4) PLD 1983 SC 169 {{FOOT NOTE}}
4. I have carefully considered the arguments of learned counsel for the parties. The perusal of the record indicates that the petitioner had not been condemned unheard as stated by him, but was afforded numerous opportunities to produce his witnesses which he did not avail of. Hence the Judge Family Court was justified in closing his evidence as held in Syed shoukat Abbas v. Mst.
Bushra Rani and another. I have also observed that a writ cannot be issued on a question of fact.
' It must be clearly understood that just as a husband is given the right to pronounce Talaq on his wife, in the same way a wife has a right to get the marriage dissolved on the basis of Khula if she could satisfy the conscience of the Court that she did not want to live with her husband and that she was prepared to return the benefits. There is no quarrel with the proposition as to what procedure is to be followed by the Judge, Family Court when a wife moves a plaint praying for the dissolution of her marriage on the ground of Khula`. Supposing a wife states in her plaint that she does not like the nose of her husband, therefore, she cannot bear living with him and that consequently her marriage should be dissolved on the basis of Khula as she was prepared to return the benefits given by her husband to her, the Judge Family Court would automatically summon the husband. If he appears, the exercise of exchange of pleadings may follow, and thereafter, an issue may be framed as to whether or not the wife le entitled to the dissolution of her marriage on the basis of Khula`. If the husband doe:, rot appear, the Judge, Family Court may order that he be proceeded against ex parte. Whether he proceeds against the husband ex parte or after the exchange of pleadings has framed an issue to the aforesaid effect, the relevant question is as to what kind of evidence would be required by him for deciding the matter. The Judge Family Court is only to satisfy his conscience that the marriage of the wife is to be dissolved on the basis of Khula` and that she is seeking the relief as a free agent and not under the influence of anyone. For this purpose he may record the statement of the wife and that of the husband, if he appears. In the meantime he is expected to attempt a reconciliation between them, if possible. But if the wife is adamant and categorically states that she was not seeking dissolution under the influence of anyone but as a free agent she felt that no reconciliation was possible, then it would make little difference whether the wife produced any witness in support of her assertion or the husband claimed or insisted to produce more witnesses for unnecessarily delaying the decision. What is required under law is that the Court should satisfy its conscience as to whether or not the wife is genuinely determined to get her marriage dissolved by returning the benefits of the husband. If the Judge Family Court arrives at the conclusion that no reconciliation was possible, that the wife was determined to get the marriage dissolved, and that not dissolving the marriage would amount to forcing or compelling her to live in a hateful union with the husband, then he must dissolve the marriage on the basis of Khula`. The conclusion in his judgment and decree would be dissolution of marriage but any condition to the effect that the dissolution of marriage would be subject to return of benefits by a specific date, otherwise the suit of the wife would stand dismissed, would have no bearing on and would not at all affect the decree of dissolution of marriage, for, the return of benefits would create only a civil liability and the law on this point has been clearly laid down in Akhlaq Ahmad v. Kishwar Sultana (1). In the instant case, the marriage was dissolved by the Judge Family Court on the basis of Khula` and the return of the benefits (specific ornaments, the details of which are given {{FOOT NOTE}}
(1) PLD 1983 SC 169 {{FOOT NOTE}} ' in the judgment) by respondent No. 1 to the petitioner does not and cannot affect the dissolution in any way but merely raises a civil liability. If respondent No. 1 is prepared to return these benefits to the petitioner, he may receive them. If not the petitioner may take steps by moving an appropriate forum and claiming the return of the said benefits as constituting a civil liability on respondent No. 1. However, the decree of dissolution of marriage remains unimpaired and it cannot be considered as conditional.
In the light of what has been discussed above I do not find any substance in this Writ Petition which is accordingly dismissed with costs.