Mst. Khurshid Bibi respondent filed a suit against the petitioner for dissolution of marriage on the ground of Khula'. Her, Rukhasti had not taken place. In the plaint, in lieu of grant of divorce on the basis of Khula', she offered to forego her right to recover the dower, which admittedly was fixed at Rs.2,000. The petitioner resisted the suit. The learned Judge Family Court, on the basis of the evidence of the parties, by his judgment, dated 10-6-1985 took the view that the relations bet-- ween the parties were so strained, that they could not live as husband and wife within the limits prescribed by God. The marriage was accordingly dissolved on the basis of 'Khula' and the respondent precluded from recovering her dower debt.
2. The validity of this judgment was assailed by the petitioner through Writ Petition No. 2977/85 on the plea that there was no material on the record to establish that the union between the parties would be hateful. This writ petition was dismissed by me in limine on 9-7-1985. Thepetitioner then filed I. C. A. No. 159/85 and raised the contention that as the legal requirements for dissolution of marriage under Khula' were not complied with, the marriage could not be dissolved. The Division Bench, however, found that this plea was not urged in the writ petition. Faced with this situation, the petitioner's learned counsel statedbefore the Bench that he would move the single Judge for review. The I. C . A . Was disposed of accordingly.
3. The petitioner thereafter, moved Writ Petition No. 983/86 but withdrew the same to file a fresh one. Hence the instant writ petition.
4. It appears that in the meanwhile, in pursuance of section 21 of the Family Courts Act, 1964, the Chairman of the Arbitration Council, respondent No. 1 herein, issued notice Annex: 'D' to the petitioner. This notice together with the proceedings pending before the Chairman, have been challenged in this writ petition. The petitioner has also sought declaration that the judgment, dated 10-6-1985, can only be affectuated after restoration of the benefits to him by the respondent andthe acceptance by the latter, of her offer regarding Zar-i-Khula. It has further been prayed that direction be issued to the Chairman, to attempt to obtain a reconciliation between the parties on the question of return of benefits and Zar-i-Khula.
5. I have heard the learned counsel at some length. He has drawn my attention to the written statement wherein it is averred that the respondent's father borrowered a sum of Rs.25,000 from the father of petitioner which he refused to return and wanted to grab the same.It has been argued that the refund of this amount to the petitioner should also have been made a condition precedent for grant of the divorce under Khula'. In the submission of the learned counsel dissolution of marriage without fully determining the benefits returnable by the respondent to the petitioner, including the amount aforesaid, the dissolution of marriage on the basis of Khula' was not effective and at the most the Family Court'sjudgment could be treated as an acknowledgment of the respondent's right to have the marriage dissolved on the ground of Khula'. In the same wake, the learned counsel contended that the issuance of a direction to the Chairman, requiring him to adopt reconciliation proceedings in a manner, that the question regarding determination of benefits and return thereof to the respondent was resolved, was imminently called for. When asked as to how successive writ petitions can be filed, the learned counsel stated that since the issues raised in the instant petition were not urged in the previous writ petition, the rule of res judicata was not attracted.
6. There is no substance in any of these submissions. The plaint when read as a whole amply demonstrates that the respondent offered to forego her right to recover the dower debt, in lieu of grant of divorce under Khula' which was the only benefit conferred on her by the petitioner, as Rukhsati had not taken place. As regards the recovery of Rs.25,000, according to the petitioner's own showing, the amount was paid by his father to the father of the respondent. The amount, therefore, can neither be treated as a benefit received by the respondent, from the petitioner nor the former can be held responsible for the refund thereof. In these circumstances, it cannot be said that the plaint lacked the necessary particulars as to the making of an offer regarding the return of benefits or that the learned Judge Family Court failed to make determination of such benefits. Even otherwise the law laid down on this point in Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others PLD 1983 SC 169 is:- "As regards the third submission of the learned counsel for the petitioner that dissolution of marriage by Khula' cannot stand whilst an inquiry on facts with regard to the terms on which it is to be granted is yet to take place, it appears plausible but is not quite sound. It was held in the case of Moonshee Buzul-ul--Raheem v. Luteefutoon Nisa that non-payment of stipulated consideration for Khula' does not invalidate the dissolution of marriage by Khula'. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God and the dissolution of marriage by Khula' must take place, the inquiry into the terms of which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself."
To the same effect is the judgment in Abdul Rahim v. Mst. Shahida Khan PLD 1984 SC 329. It is not a case of non-determination ok Zar-i-Khula or benefits returnable by the respondent to the petitioner. Even if it is so, such non-determination or non-payment of compensation to the respondent, is no ground to invalidate divorce granted by the Family Court. It is to be noticed that in the written statement, the benefits allegedly received by the respondent have not been particularized. .
7. There should be no doubt that the Chairman cannot ge behind the decree granted by the Family Court. After the dissolution of marriage by the Family Court, he has to proceed in accordance with the provisions of section 21 of the Family Courts Act, 1964. The learned counsel' himself agreed that the return of the benefits by the wife to the husband, is a civil liability which can be determined and enforced by the Civil Court alone. It being so, the Chairman cannot be expected to adjudicate upon such a liability and in case of failure of the reconciliation, to treat the decree as inaffective on the rights of the parties. Such a, course would evidently be inconflict with section 21 of the Act. The learned counsel has, however, relied on Mst. Balqis Fatima v. Najm-ul---Ikram Qureshi PLD 1959 Lah. 566, Mst. Manzoor v. Allah Wasaya etc. PLD 1973 B.J. 36 and Abdul Rahim v. Mst. Shaida Khan PLD 1984 SC 329, but none of these precedents have any bearing on the facts of the instant case.
8. It has also been argued that the Chairman wants to issue a certificate to the effect that the divorce has become affective. On the authority of Mst. Fahmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694, it is submitted that no power vests in the Chairman or the Arbitration Council to issue such a certificate.
9. There is nothing on the record to show that the Chairman is deviating from the provisions of section 21 (ibid) or otherwise is not acting in accordance with law. After receipt of the intimation from the Family Court as to the grant of the decree for dissolution of marriage, what the Chairman has to do is, to treat such decree as if he had received an intimation of 'Talaq' under the Muslim Family Laws Ordinance and to further conduct all necessary proceedings in this behalf. The divorce becomes effective after the expiration of 90 days unless there is re-conciliation between the parties within the said period. There is no reason to believe that the Chairman would not follow the mandatory) provisions of law.
10. The dissolution of marriage on the ground of 'Khula', furnished a cause of action to the petitioner, to seek removal of the Family Court's judgment through judicial review. It was on the basis of this cause of action, that he filed the first writ petition, which was dismissed in limine. It is not a case in which some new facts have come to light after the dismissal of the first writ petition. In such a case, as held in Mirza Muhammad Yaqoob v. The Chief Settlement Commissioner PLD 1965 SC 254 is:- ... . . . . A petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For a further plea the proper course would be to file a petition for review if such a petition be maintainable. The general principle of res judicata is applicable to writ petition also. "
Reference in this connection may also be made to Qasim Shah v. The Province of West Pakistan and another PLD 1960 Pesh. 68, Barkat v. Haji Ghulam Muhammad and another P I. D 1970 Quetta 10 and Tamiz-ud--Din Munshi v. Election Tribunal and Additional Deputy Commissioner PLD 1967 Dacca 303. The law is well settled that when first writ petition is disposed of on merits, the second petition on the same cause of action is not competent. See Abdul Hameed v. Muhammad Riaz Hasham 1968 SCMR 816. The instant writ petition, therefore, cannot be entertained.
11. The marriage between the parties took place in the year 1976. The suit for dissolution of marriage was filed by the respondent in 1983. All along she continued to reside with her parents, as Rukhsati had yet to take place when the relations of the parties became strained which led to some criminal litigation as well. The manner in which the petitioner is endeavouring to drag the respondent in the litigation, affirms my belief that he is interested more in wrecking vengeance on her than to seek a matrimonial union. Grant of relief under writ jurisdiction is essentially discretionary. Apart from other considerations in view of the facts of the case, would not like to exercise this discretion in favour of the petitioner Dismissed in limine.
M . B . A .Petition dismissed