1. ' I propose to dispose of Writ Petitions Nos. 637 and 638 of 1984 which raise identical questions of fact and law and arise out of one consolidated judgment relating to a family dispute between the parties.
2. Facts are that Mst. Hafizan was married to Yasin on 13-3-1977 when she was of 14 years 5 months and 25 days. Since the parties could not proceed in unison under the marriage contract, a suit for divorce was instituted by Mst. Hafizan. The grounds urged in support of the claim for divorce were
(i) habitual cruelty, (ii) misappropriation of the property, (iii) infamous way of living by the defendant, (iv) old age of the defendant husband and (v) extreme dislike and hatred. Muhammad Yasin entered appearance, filed written statement and controverted the averments made in the plaint. Learned Judge Family Court, after making efforts for a compromise/re-conciliation, in the light of the pleadings of the parties, framed the following issues:-
(1) Whether the defendant treated the plaintiff with habitual cruelty? O.P.P.
(2) Whether the defendant misappropriated the dowery of the plaintiff? O.P.P.
(3) Whether the defendant is a man of bad character? O.P.P.
(4) Relief.
2. ' The plaintiff concluded. her evidence on 14-2-1980 and then the suit for divorce was adjourned to 29-5-1980 for the evidence of the defendant husband. Since evidence was not present on the- adjourned date, the suit was further adjourned to 16-11-1980. Meanwhile, after the evidence of the plaintiff wife had been concluded and the suit adjourned for defendant/husband's evidence, a suit seeking restoration of marital relations was instituted by Muhammad Yasin before the same learned Judge where the suit for divorce was already sub judice. After usual formalities like the filing of written statement etc. the trial Judge on 20-7-1980 made the following order:- [URDU TEXT]
(1) Whether the defendant treats the plaintiff with cruelty? O.P.P.
(2) Whether the defendant has misappropriated the dowery of the plaintiff? 0.P.P.
(3) Whether the defendant is a person of bad character? O.P.P.
(4) Whether the defendant (plaintiff in suit for restitution of conjugal right) is entitled for decree of Restitution of conjugal right? O.P.P.
(5) Relief?
3. [URDU TEXT] for divorce and restitution of conjugal rights were consoli dated and the proceedings adjourned for recording the evidence of Muhammad Yasin, who produced his evidence. Vide order dated 29-11- 1980 Mian Khalid Saeed Akhtar, learned Judge Family Court, Kasur dismissed the suit for divorce and decreed the claim of Muhammad Yasin for restitution of conjugal rights. An appeal was filed against the above-noted decision before learned District Judge, Kasur. This appeal as placed on the file of learned Additional District Judge, Kasur. The appeal was dismissed on 9-1-1984. In the result, claim for divorce was disallowed and for restitution of conjugal rights succeeded.
4. Judgments of the Courts below refusing relief of divorce, have been brought under challenge in constitutional jurisdiction by Mst. Hafizan. Parties' counsel have been heard.
3. Mr. Abdullah Khan Dogar, Advocate, contended that suit for restitution of conjugal rights filed at belated stage when suit for divorce had reached an advanced stage, could not have been consolidated with the latter suit. Per mandatory requirements of section 10 of the Code of Civil Procedure made applicable to the proceedings before Family Courts, restitution suit was liable to be stayed till such time a final decision was recorded in the divorce suit. Consolidation of the suits at the stage, it had been ordered, caused serious prejudice to the rights of plaintiff in the earlier suit. It was also contended that the plaintiff Mst. Hafizan after the suits were consolidated, had not been afforded an opportunity of leading evidence in rebuttal of issue No.4. This too has prejudiced her rights. Further point was taken that Mst. Hafizan at the time of her marriage as is evident from the birth entry, was minor and as such even in the absence of pleadings, issue and the evidence on the point, was entitled to a decree of divorce on the ground of having exercised option of puberty.
5. In support, relied on PLD 1953 Lah. 131, PLD 1957 Lah. 615 and PLD 1965 Pesh. 5, to state that the option stands validly exercised with a simple declaration by the wife that she was not prepared to accept her counterpart as her husband. In this, he stated, that the plaintiff had in unequivocal terms expressed that she did not accept Muhammad Yasin as her husband and this was enough to order dissolution on the ground of exercise of right of option of puberty. It was not at all necessary to state specifically the facts in support of exercise of such right in the pleadings. The Court in its constitutional jurisdiction could take notice of such a plea even in the absence of pleading, issue, evidence and finding of the Courts below. Learned counsel, lastly contended, that the plaintiff in her plaint had specifically stated that she had developed dislike and hatred and that she could not live for a moment with her husband. This statement in pleading was supported by her statement in Court. In consequence it was asserted that in the presence of the material available on record this was a good ease for Khula divorce and the Courts below have acted illegally in not bestowing their attention to the plea of Khula raised by the plaintiff. Further, it was stated that evidence on record had been grossly misread by the Courts below in finding the issues against Mat. Hafizan. Evidence recorded was read out to me in Court. On point of Khula, learned counsel relied on the case Abdur Rahim v. Mat. Shahida Khan PLD 1984 SC 329, Riasat Ali v. Family Court and another 1984 CLC 1325 and contended that when evidence on record was sufficient to decide the issue of Khula, the Courts were obliged to attend and decide whether wife in the presence of the available material was entitled to separation through Khula. Ch. Arshad Mahmood, Advocate, learned counsel appeared in defence of impugned order. He submitted that the Family Court which had the exclusive jurisdiction to entertain, hear and adjudicate upon the matter in dispute had, after proper appreciation of evidence, come to a findings of fact against the writ petitioner holding that the issues raised had not been proved. These findings have received the approval of the Court of appeal. Concurrent findings of fact arrived at after thorough appreciation of evidence were not open to scrutiny in constitutional jurisdiction by this Court, as it is not a Court of facts.
6. ' It was also contended that the plaintiff (Mst. Hafizan) after an additional issue was framed and evidence produced by the respondent did not claim a right to produce fresh evidence, rather felt content with the evidence already brought on record by her. In this view of the matter she was estopped to take up this question for the first time in constitu tional jurisdiction on the ground of prejudice if any. It was also stated that the Courts below had not taken into consideration the evidence of the respondent led on the issue of restitution of conjugal rights when deciding the suit for. divorce. As regards Khula, it was stated by him that though an averment of hatred, dislike/discord was made in the plaint, yet the point was not pressed before the Judge Family Court when issues were framed and evidence adduced. Khula could not be granted on a mere asking of a wife without assigning good/valid reasons satisfying the judicial conscience of the Court for ordering separation of the spouses. In the case under consideration, learned counsel contended, that necessary material for such a course was not available.
7. ' In view of the order I propose to make, I need not discuss the grounds taken qua misreading/non- reading of the evidence. As regards option of puberty, no foundation was laid in the plaint necessary to attract the principle of exercise of right of option of puberty. Mere fact that she was below 15 years of age at the time of her marriage, A was too slender a basis to hold, in constitutional jurisdiction, that she had validly exercised the above-said right and terminated the marriage contract. As regards joint trial of the suits, the Court committed no illegality in ordering consolidation of the two suits which raised identical question of fact and law. In my view the Court could in exercise of its inherent powers order consolidation. In the result of consolidation order, all the issues were recast. In the altered circumstances, when issues were recast, it was imperative for the Court to ask the parties to lead evidence afresh in support of the issues recast. It was open to the plaintiff then to have placed reliance on the evidence already recorded or produced more evidence. Instead of adopting such a course, the Court straightaway adjourned the case for the defendant's evidence' and after it was closed, proceeded to decide the suit without giving a chance of producing any evidence in rebuttal to Mst. Hafizan in regard to issue No.4 also. Writ petitioner, therefore, is right in raising the grievance that she had been deprived of a right to produce evidence. Even otherwise, the plaintiff Mst. Hafizan though did not use the word "Khula",, had specifically stated in plaint that she has developed hatred for defendant and could not live with him. The words used are:- [URDU TEXT] ' This evidently was a plea in support of Khula divorce. Consequently, the learned Judge Family Court was bound to frame a separate issue on question Khula in view of section 10(4) of the Family Courts Act, 1964. The duty to frame proper issues arising out of the pleadings of the parties rests on the Court. It is equally true that in the discharge of this duty, the Court is assisted by lawyers representing the parties. Absence of the proper assistance however does not absolve the Court of its primary duty to have a look on the pleadings of the parties and then frame correct and proper issues arising therefrom. Purpose of framing of the issues is to invite the attention of the parties to the real points needing consideration on which they are supposed to .ring evidence. Looked at the matter from this angle, I find that the learned Judge Family. Court had failed in its duty to frame a proper issue which has prejudiced the real trial of the controversy. Trial Court has not adverted to the plea of Khula, obviously for the reason that there was no such issue present to the mind of the learned Tiral Judge. In appeal, however, learned Additional District Judge in paragraphs 8 and 9 of the judgment has adverted to the plea of Khula and observed:- "The learned counsel for the appellant further argued that the parties cannot live together within the limits prescribed by Almighty God and she is entitled for the decree of dissolution of her marriage on the basis of Khula.
8. ' The learned counsel for the respondent has drawn my attention towards the fact that the plaintiff-appellant failed to substantiate the fact. From the perusal of the testimony of the plaintiff- appellant it is obvious that she had simply stated that she cannot live together with the defendant- respondent as she had developed hatred against him. It is worth mentioning that the mere saying that she cannot live with the defendant is not sufficient for the dissolution of her marriage on the basis of Khula. The learned counsel for the plaintiff-appellant miserably failed to point out the circumstances wherein the spouses cannot live together within the limits ordained by Almighty God."
9. ' In a case of Full Bench Mst. Balqees Fatima v. Najmul Ikram Qureshi PLD 1959 (W.P.) Lah. 566, plea of Khula was allowed to be raised being a pure question of law at the stage of second appeal. In Riasat All v. Family Court and another 1984 CLC 1325, a decision from the Karachi jurisdiction, it was observed : - "On the evidence led by the respondent No.2, in my view, Khula, could be granted by the learned Family Judge. In so far as the contention relating to absence of prayer in the plaint filed by respondent No.2, it may be observed that in para. 8 of the plaint it has been stated by respondent No.2 that she had developed strong aversion against the petitioner and she would not be able to live with the petitioner as his wife within the limits prescribed by Shariat. The prayer is for dissolution of marriage and in view of the contents of the plaint it is apparent that dissolution of marriage was sought in the alternative on grounds of Khula also. As regards raising of an issue, in my view, there is an issue about dissolution of marriage and even otherwise on the bags--Or evidence that may come on record, a Family Judge is competent to disolve the marriage on grounds of Khula if a case is made out."
10. ' Supreme Court of Pakistan in the case of Abdur Rahim has discussed, if permitted to say so with immense respects, exhaustively the question of Khula and reiterating its earlier views has given guidelines for Courts called upon to decide issue of Khula divorce. In the case under consideration, may be in the absence of a distinct issue on Khula enough material could not be brought on record by the plaintiff. Plain tiff was of a very young age when she entered into a contract of marriage with defendant who was stated to be of old age. She lived with him for a short while and then separated. Admittedly there is no issue out of this wedlock. Mr. Abdullah Khan Dogar, Advocate, suggested that the respondent was debilitated. Something was said about his physical appearance/physique also and it was stated that due to this difference in age and physical condition of Muhammad Yasin, it was not at all possible for Mst. Hafizan to live with him as his wife and perform matrimonial obligations. Muhammad Yasin is not present in Court. So nothing need be said about the statement made by learned counsel for the petitioner. It is for the trial Court to examine this aspect of the matter also. In the result of what has been stated above, I find that the controversy has not been properly resolved by learned Judge Family Court. One course open to me was to remand the case back to learned Additional District Judge to re-decide the question of Khula in the light of the material available but then on reconsideration I decided to send the case to the Judge Family Court for it was his function first to determine the controversy in the light of the averments set out in the plaint. It is well-established that when a Court or a Tribunal is vested with jurisdiction, it is that Court or Tribunal which has to exercise its jurisdiction first and must be allowed to do so. Exercise of that jurisdiction by a higher Court/Tribunal without allowing the former to exercise it may be usurping the jurisdiction of the former Court/ Tribunal which is not permissible in law.
11. ' In the result both the writ petitions are allowed, judgments dated 29-11-1980 and 9-1-1984 passed by the learned Judge Family Court and learned Additional District Judge in appeal are set aside and declared to have been passed without lawful authority. In consequence the suits are remanded to learned Judge Family Court for decision afresh on issues (recast) and Khula to be framed, after affording an opportunity to the parties to lead evidence afresh. Parties are directed to appear before learned Judge Family Court on 3-3-1985. Since respondent Muhammad Yasin is not present today, the Judge Family Court In case of his non-appearance, is directed to issue a notice to him. Costs to be borne as incurred.