This is a constitutional petition filed against by the XXIVth Civil and Family Judge, Karachi in 977/83 decreeing the suit for dissolution of marriage 19-5-1984 on application under Rule 13 of the West Pakistan Family Courts Rules, 1965 read with Order IX, Rule 13 and section 151, C.P.C.
2. The facts leading to the present petition, briefly stated, are that the 'Nikah' ceremony of respondent No,1 with the petitioner was performed at Karachi on 14-12-1980 according to Sunni Muslim Law. Soon after the 'Nikah' the petitioner went back to America. There was no 'Rukhsati' and, thus, the marriage was not consumated. Before the 'Nikah' the petitioner and his family had given to understand the parents of respondent No,1 that the petitioner was a bachelor and was occupying a high position in America. Respondent No,1 and her parents were led away by the statement of the petitioner and his family had accepted the proposal of 'Nikah' which was performed hurriedly as the petitioner had to go back to America and did not have much time at his disposal. Sometime after the 'Nikah', brother of respondent No,1 namely Tariq who is employed in P.I.A. Went to America in 1981 and dropped at the house of the petitioner. He was then shocked to see that the petitioner had a wife and a six years old son. It was also revealed to the said brother of respondent No,1 that the petitioner had told a lie about his high position and was only a taxi driver in America. Respondent No,1 who is stated to be a B.Sc. (Pre-medical) from Apwa's Girls College and belongs to a highly respected family took it very seriously that the petitioner told a lie about his marital status and the profession. Respondent No,1 sent a notice to the petitioner through her counsel asking for Khula' but the matter could not be settled amicably. Having not been able to reconcile herself with such a situation, she filed a suit on 16-6-1983 seeking for dissolution of marriage with the petitioner by way of Khula' in the Court of Respondent No,2 stating that she had developed hatred with the petitioner and could not live with him within the limits prescribed by 'Allah'. She further stated that she had not gained anything out of her wedlock. She gave up her dower amount in lieu of Khula'. The learned Family Judge issued summons in the said suit to the petitioner on both the addresses of the petitioner in America as well as Karachi as shown in the plaint. The summons were also issued by registered post A.D. But the summons could not be served either through bailiff or through registered post. The petitioner was, however, served by publication in the Daily 'Dawn' Karachi, dated 1-12-1983 but again no appearance was made by or on behalf of the petitioner on 15-12-1983, the date fixed in the newspaper. The matter was then adjourned and the suit was ultimately decreed ex parte on 7-1-1984.
3. On 23-1-1984 one Muhammad Huraiz Jilani, stated to be the elder brother and attorney of the petitioner, filed an application under Rule 13 of the West Pakistan Family Courts Rules, 1965 read with Order IX, Rule 13 and section 151, C.P.C. For setting aside ex parte judgment and decree. The said application was heard and dismissed by the learned Family Judge by his order dated 19-5- 1984. The petitioner has now preferred this petition.
4. Mr. M. Faseeduddin Ahmad, Advocate for the petitioner has raised the following contentions:-
(i) There was no valid service on the petitioner in the suit.
(ii) No proceedings were held under sections 10 and 12 of the West Pakistan Family Courts Act, 1964.
The trial has, therefore, vitiated.
(iii) Divorce was illegally confirmed by the Chairman of the Union Committee.
(iv) The learned Family Judge was wrong in dismissing the application as incompetent.
5. Dealing with the first contention, learned counsel submitted that as the petitioner was in America he was not and could not have been served at his address of Karachi. The Daily 'Dawn' in which the Court notice appeared does not go to America. As such there was no valid service. The petitioner remained unaware of the proceedings and he was condemned unheard. I find no force in this contention for the simple reason that the stamp paper of the power-of-attorney produced by the petitioner's brother in his favour was purchased at Karachi on 5-11-1983. It seems to have been typed out in Karachi and sent to the petitioner to America which was authenticated there by a Notary Public on 16-11-1983. This Power-of-Attorney gives the complete detail of the suit in question.
This shows that the petitioner and his brother who is also his attorney were in the know of the proceedings of the suit much before the publication of the notice in the Daily 'Dawn' what to say of the ex parte proceedings against the petitioner on 15-12-1983 and the ex parte judgment on 7-1- 1984.
6. The second contention about not holding pre-trial and post-trial proceedings is also without any force. Section 10 which deals with the pre-trial proceedings presupposes the appearance of the parties in person and filing the statement by the defendant in person. The provision of Section 12 for post-trial proceedings can only be attracted after the close of the trial. Since none of the situations happened in the suit, there was no question of holding pre-trial or post-trial proceedings by the Family Judge. As such no illegality, as alleged, was committed by the learned Family Judge.
7. The third contention that the impugned judgment and decree was to be sent to the Chairman of the Union Committee concerned as required under section 21(2) of the West Pakistan Family Courts Act, 1964 read with section 7 of the Muslim Family Laws Ordinance, 1961 and, therefore, the decree of dissolution of marriage did not stand confirmed in the eye of law has also no force. The petitioner has filed a notice on Form II issued by the Chairman of the concerned Union Committee to the parties for appearance before him on 20-3-1984. The petitioner through his attorney was in the full know of the reconciliation proceedings. The Petitioner's Advocate had filed an application before the learned Family Judge for stay of proceedings pending before the Chairman. Mr. Khawaja Naveed Ahmad, learned counsel for respondent No, 1 has produced, during the course of arguments, a photo stat copy of the certified true copy of the order of the Chairman confirming the decree of Khula' which shows that the petitioner was duly represented through a nominee by his brother as attorney in the said proceedings. This order dated 18-4-1984 further shows that the decree of Khula' became effective from 16-4-1984 on the expiry of the prescribed period of ninety
(90) days from the date of the notice. It may be said that the certified copy of the judgment might have been produced by respondent No,1 before the Chairman. In any case I am mainly concerned with the setting aside of the ex parte judgment and decree of Khula' and not its confirmation by the Chairman.
8. As regards the last contention, Mr. Faseehuddin submitted that the attorney simply filed an application for setting aside the decree which he was competent to do. He, however, cited no case law on the point. Mr. Khawaja Naveed Ahmad relied on an unreported judgment of this Court in Constitutional Petition No, S-58 of 1983, which supports him. Mr. Faseehuddin did not submit any further on the point. The contention fails.
9. For the reasons discussed above, I find no force in the petition which is accordingly dismissed but, in the circumstances, there will be no order as to costs.