1. ' The facts leading to the present petition are as under: ' The Family Suit No,356/1991 was filed by Syed Muhammad Aslam who is present petitioner against Mst. Sabina Wazir, who is respondent No,3 in this petition. The plaintiff/petitioner stated in his suit that he had married the defendant/respondent No,3 on 15th December, 1990 with dower amount of Rs,2,50,000 (rupees two lacs and fifty thousand) out of which half was prompt and half was on demand. According to plaintiff the whole amount had been paid before proceeding for honey moon in the month of March, 1991. On 28-3-1991 the defendant expressed her desire to visit her parents and the plaintiff had not objected. The defendant/respondent No,3 took away golden ornaments worth Rs,1,50,000 and other valuable clothes. On 1-4-1991 the plaintiff/petitioner visited the house of the parents of defendant/respondent No,3 but the parents of defendant/respondent No,3 insulted him and forced the plaintiff to divorce the defendant. On 2-4-1991 the plaintiff/petitioner received legal notice from the defendant/respondent No,3. Reply was sent on 6- 4-1991. Subsequently the plaintiff brought back the defendant on 26-4-1991 and they started living together. This continued up to June, 1991. On 2nd June, 1991 mother of defendant/respondent No,3 took her away and she was brought back on 9-6-1991. On 24-6-1991 the father, mother and brother of defendant came to the house of plaintiff and took away the defendant alongwith golden ornaments worth Rs,1,50,000 (Rupees One Lac Fifty Thousand). They demanded money from plaintiff/petitioner but it was beyond his capacity to fulfil such demand. It came to the knowledge of petitioner/plaintiff that the defendant had started job of beauty parlour/without his permission.
2. Thereafter he filed the present suit for restitution of conjugal rights.
3. ' The defendant/respondent No,3 had filed written statement stating that she had married the plaintiff on 15-12-1990 and dower amount Rs,2,50,000 (rupees two lac fifty thousand) was fixed. Out of this half was prompt and half deferred. The plaintiff had not paid the whole amount of dower to defendant and the receipt produced was forged. The defendant further stated that the plaintiff had three wives, the attitude of plaintiff was harsh and insulting and he had also threatened to throw the acid on the face of defendant. The plaintiff himself dropped the defendant at the house of her parents on 24-6-1991 and he had tried to blackmail the defendant and her parents. He had filed the suit for restitution of conjugal rights and also criminal case against the defendant, her mother, father and younger brother which was pending in the Court of A.C.M-IVth South, Karachi. The plaintiff was doing this to force the defendant to forgo her claim for dower amount as well as maintenance.
4. ' The XIth Civil and Family Judge, Karachi South decided the suit on 24-5-1993 mentioning as under:--- "Heard parties' counsel and perused the case papers which shows That on 21-7-1992 one Talaq (Talaq Rajai) was pronounced by plaintiff to the defendant and notice under section 7, Muslim Family Laws Ordinance, 1961 was also served on the Chairman, Punchayat Committee photostat copy of divorce deed and notice under section 7 of the Muslim Family Laws Ordinance 1961 is available on record which shows that plaintiff already pronounced the Talaq to the defendant and also Rajai Talaq become effective after 90 days and from 21-7-1992 till now Talaq has been effective and regarding notice under section 7 of Family Laws Ordinance, 1961 it is held in 1992 SCM R 1273 that notice of Talaq required by section 7 of Family Laws Ordinance, 1961 is not mandatory under Injunctions of Islam. Any divorce pronounced on written by husband cannot be ineffective or invalid in Shariah merely because its notice has not been given. In these circumstances there is no jurisdiction for pending of Suit No, 356/91 for restitution of conjugal rights.
5. Accordingly I allow the application for dismissal of suit while the Family Suit No,311/91 filed by wife Mst. Sabeena Wazir for recovery of prompt dower and maintenance is directed to be proceeded with separately, the parties are at liberty to lead their evidence with my above order, the Family Suit No,356/91 filed by husband Syed Muhammad Aslam is dismissed with no order as cost."
6. ' Against this order Family Appeal No,21/93 was filed in the Court of District Judge, South Karachi which was heard and decided by 4th Additional District Judge, Karachi South vide judgment dated 31-5-1994 whereby the appeal was dismissed with no order as to cost. Thereafter present petition has been filed by plaintiff/petitioner with the prayer that the judgments dated 31-5-1994 and 25-5- 1993 be set aside. There is a request also that the divorce which was revoked earlier to be declared as subsisting.
7. ' The learned advocate for petitioner submitted that dower was paid on 9-3-1991 and the respondent lived with petitioner up to 28-3-1991. The notice for dower is dated 1-4-1991 and reply of said notice is dated 6-4-1991. The respondent rejoined petitioner on 24-6-1991 but she again left respondent and filed Suit No,311/91 for maintenance and dower. The petitioner also filed suit for restitution of conjugal rights and both suits were consolidated on 15-1-1992. The respondent had filed application for dismissal of suit filed by defendant/petitioner stating that she had already been divorced through a divorce deed dateth21-7-1992 and the divorce had become effective, therefore, suit for restitution of conjugal rights be dismissed as it had become infructuous. The learned advocate for petitioner submitted that the trial Court on 24-5-1993 accepted the version of the respondent and passed order that the Family Suit No,356/91 filed by the husband Syed Muhammad Aslam was dismissed on 31-5-1995. The fact that two suits had been consolidated was overlooked and without deconsolidating the suits such order cannot be passed. The trial Court had not considered the fact of revocation' of divorce. No evidence was recorded on the point that divorce had become effective. The suit of maintenance is still pending. The learned advocate for petitioner submitted that objections filed by the petitioner in, consolidated suit were on page 55 wherein he had stated that Talaq was pronounced through divorce deed dated 21-7-1993 which should have been confirmed within the period of ninety (90) days. The divorce would have been effective from the date of confirmation. It was also stated that separate dismissal was not possible as suits were consolidated. The learned advocate for petitioner further submitted that there was no evidence recorded on the point that divorce had become effective. There is no confirmation of divorce on record. The divorce had been revoked within time. Revocation can be oral also but this point had not been dealt properly by the two Courts.
8. ' The learned advocate for respondent submitted that me stand of petitioner before this Court is different from the stand taken before the lower Courts. There is no suit for maintenance but it is suit for recovery of prompt dower and past maintenance. He submitted that the Fatwa at page 63 was not annexed with appeal but it was produced at the time of arguments. This was afterthought which was introduced after seven (7) months: In his statement dated 3-10-1995 the petitioner does not say that' he revoked the divorce but he wants that dower be forgiven and in that case he will not pursue this matter. The petitioner wants to marry 5th Wife. He placed reliance on decision reported in PLD 1975 Lahore page 147. He further submitted that there are concurrent finding and facts admitted need not be proved.
9. ' The main arguments and points of petitioner's are two. Firstly, according to him his suit for restitution of conjugal rights was wrongly dismissed as two suits were consolidated and there was no order of deconsolidation. His second point is that he had revoked the divorce within time and therefore, the respondent continued to be his wife and he has placed reliance on Fatwa which is available on record. These points have already been adequately dealt with by the lower Courts.
10. The relevant portion of the order of XIth Civil and Family Judge, Karachi, South, is as under:--- "On 21-7-1992 one Talaq (Talaq Rajai) was pronounced by plaintiff to the defendant and notice under section 7, Muslim Family Laws Ordinance was also served on the Chairman, Punchayat Committee, photostat copy of divorce-deed and notice under section 7 of the Muslim Family Laws Ordinance is available on record which shows that plaintiff already pronounced the Talaq to the defendant and also Rajai Talaq becomes effective up to 90 days and from 21-7-1992 till now Talaq has been effective and regarding notice under section 7 of Family Laws Ordinance, 1961. It is held in 1992 SCM R 1273 that notice of Talaq required by section 7 of Family Laws Ordinance is not mandatory under Injunctions of Islam. Any divorce pronounced on written cannot be ineffective or invalid in Shariah merely because its notice has not been given. In this circumstance there is no justification for pending of Suit No,356/91 for restitution of conjugal rights. Accordingly I allow the application for dismissal of suit while the Family Suit No,311/91 filed by wife Mst. Sabeena Wazir for recovery of prompt dower is directed to be proceeded with separately. The parties are at liberty to lead their evidence with my above order the Family Suit No,356/91 filed by husband Syed Muhammad Aslam is dismissed with no order as to cost."
11. It is clear that this order is the order of deconsolidation of suits as it is Mentioned in the order that the Suit No,311/91 filed by wife is directed to be proceeded separately. So this order is valid because the suit has been dismissed after deconsolidation. This argument of petitioner stands answered.
12. ' As regards his second argument that the petitioner revoked the divorce within time and he places reliance on Fatwa also holds no ground in view of his objections dated 2-3-1993 filed against application moved by respondent which is at page 55, In para. 3 the petitioner has stated as under:--- "Since the defendant by virtue of acceptance the effectiveness of divorce through this application it is evident that the defendant deliberately avoided to intimate the effectiveness of divorce within due time to this Court. It is very much in the knowledge of defendant that Suit No,356/91 is consolidated with suit bearing No,311/91 and subsequently consolidated issues framed thereof.
13. Hence its separate dismissal is not admissible on the ground mentioned hereinafter."
14. The divorce was pronounced in writing on 21-7-1992 and the objections to application were filed in the Court of XIth Civil and Family Judge, Karachi South on 2-3-1993. The petitioner has not mentioned in his objections dated 2-3-1993 that he had revoked the divorce. Therefore, the second argument of the petitioner is also not supported by record. In view of these facts it is not possible to grant relief to petitioner as is requested in this petition. The petition is, therefore, dismissed with no order as to cost.