Brief facts of the instant writ petition are that the Nikah of the petitioner Mahpara was performed with the respondent on 16-1-1991 and according to her due to some unavoidable circumstances she was compelled to file a suit for dissolution of marriage in the Court of learned Judge, Family Court, Lahore on 1-9-1994.
2. According to the submissions of the learned counsel for the petitioner the summons were served by the Process Server but the respondent refused to receive the summons and thereafter, publication was made in the Frontier Post but the respondent did not appear. Therefore, ex parte proceedings were taken against the respondent on 3-10-1994. On 26-10-1994 ex parte evidence was recorded by the learned Judge, Family Court and ex parse decree was passed in favour of the petitioner on the basis of Khula for a consideration of Rs.500 as dower money on 31-10-1994 and thereafter, the petitioner sent a notice to the Chairman, Arbitration Council under section 7(3) of the Muslim Family Laws Ordinance, 1961 for further proceedings. Thereupon, the learned Chairman, Arbitration Council also issued notice to respondent No.2 who received the last notice on 14-1-1995 and made his statement before the learned Chairman, Arbitration Council on 19-2-1995 which is reproduced as under:-----
3. Thereupon, on 21-2-1995 Mahpara, the petitioner gave a statement that she was not willing for reconciliation and after the expiry of 90 days the certificate was issued by the learned Chairman, Arbitration Council on 23-2-1995. Respondent No.2 after the expiry of 112 days made an application for setting aside the ex parte decree on 19-2-1995 on the ground that he was never served. This application was contested by the petitioner being time-barred and was liable to be dismissed being false and vexatious as the same was filed after the expiry of 90 days when the Talaq had already become effective on 23-2-1995.
4. The following issues were framed by the learned Trial Court:
(1) Whether the petition is time-barred? O.P.R
(2) Whether the petitioner has got no cause of action against the respondent? O.P.R.
(3) Whether the petition is false, frivolous and mala fide as such liable to be dismissed? O.P.R.
(4) Whether there is a sufficient reason to set aside the ex parte decree, dated 31-10-1994? O.P.A.
(5) Relief.
5. The parties led their respective evidence orally as well as documentary evidence.
6. The learned Family Court while recording its finding on issues Nos.1 to 4 in favour of respondent No.2 set aside the ex parte decree, although during this period after the effectiveness of the Talaq the petitioner had remarried and she had one child out of the second wedlock.
7. Learned counsel for the petitioner submits that the learned Court below did not look into the fact that the Talaq had become effective on 23-2-1995 where the respondent No.2 was present and he explicitly in his statement allowed the learned Arbitration Council to issue the certificate. He could not have approached the learned Family Court after making his statement before the learned Chairman, Arbitration Council and the learned Judge, Family Court without giving any reasoning set aside the ex parte decree, although this fact was in the knowledge of the learned Judge, Family Court that the petitioner had remarried and there was a child out of the wedlock. He has further submitted that the respondent had also married which is admitted by the respondent who is present in person before this Court. He has finally submitted that the judgment of the learned Judge, Family Court is based on surmises and conjectures, therefore, the same is liable to be set aside.
8. Learned counsel for the respondent has submitted that the ex parte decree was passed against the respondent No.2 on 31-10-1994. On 21-11-1994 the notice was sent to the learned Chairman, Arbitration Council and also the notice was sent to the respondent No.2 on 1-12-1994. Respondent No.2 filed an application for setting aside the ex parte decree on 19-2-1995 before the learned Judge, Family Court alongwith the application for suspension of the impugned judgment and decree, dated 31-10-1994. On 20-2-1995 the learned Judge, Family Court suspended the operation of the impugned judgment and decree. An application was also moved to the learned Chairman, Arbitration Council about the same which was ordered by the learned Chairman, Arbitration Council to be annexed with the file on 21-2-1995 and on 23-2-1995 the certificate of effectiveness was issued by the learned Chairman, Arbitration Council and the learned Court while relying on the evidence of respondent No.2 set aside the ex pane decree on 20-2-1997.
9. Places reliance on Pervaiz Ahmad v. Tahra Shaheen alias Balquees Shahzadi 1988 CLC 1444 where it was held that the learned Judge, Family Court must hold an enquiry on an application for setting aside an ex parte decree whether the applicant had sufficient reasons for non-appearance in the Family Court to contest the proceedings of dissolution of marriage; Ainuddin Karikar v.
Salatanness Bibi PLD 1953 Dacca 216 wherein it is held that the subsequent marriage cannot effect the appeal on merit; Mst. Fahmida Bibi v. Mukhtar Ahmad another PLD 1972 Lah. 694 and Muhammad Shamim Siddiqui v. Mrs. Kausar Aziz and others 1982 CLC 1972 where it is held that the question of fact cannot be agitated in the writ petition.
10. I have heard the learned counsel for the parties and have also carefully perused the record.
11. The High Court has no supervisory jurisdiction upon special Tribunals of Family Court as provided by the Family Court Act, 1964. While sitting over a judgment passed by the Special Tribunals under the Family Court Act the High Court will hear the instant writ petition as a Family Court under Family Court Act, 1964.
12. In the instant case undoubtedly the learned Family Court dissolved the marriage through an ex parte judgment and decree, dated 31-10-1994 and the period of Iddat has to commence from the date of dissolution of marriage vide the judgment and decree passed by the learned Judge, Family Court, dated 31-10-1994. Respondent No.2 appeared before the learned Chairman, Arbitration Council alongwith his counsel on 19-2-1995. He was not compelled to make a statement before the learned Chairman, Arbitration Council that if the reconciliation fails the learned Chairman can issue the certificate of the effectiveness of divorce. However, he made the statement with the intention that there was no possibility of reconciliation between the parties before the learned Chairman, Arbitration Council and this statement binds him. The Judge, Family Court has entirely discarded this part of the evidence produced as Exh.R.2 and Exh.R.3 and also has completely ignored that by process of time from the date of the impugned judgment and decree, dated 31-10- 1994 and the date of setting aside ex parte decree, dated in 20-2-1997 the facts and circumstances have developed that the petitioner has remarried and there was a child out of the wedlock of the marriage and the respondent No.2 has also remarried and then before applying for setting aside the ex parte decree the respondent was not bound to make a statement before the learned Chairman, Arbitration Council that in case of non-reconciliation he had no objection for the issuance of the certificate of effectiveness in favour of the petitioner and that this part of the statement binds the respondent No.2 and stops him to bring further proceedings before the learned Judge, Family Court.
13. I have carefully perused the evidence produced by the parties in the application for setting aside ex parte decree. The evidence of A.W.1 Ishtiaq son of Abdul Aziz and A.W.2 Muhammad Arshad son of Muhammad Mansha is altogether not confidence inspiring and completely given without any source of information, surprising, wherefrom the learned Judge, Family Court gathered that the services were not duly effected upon the applicant. The applicant himself appeared as A.W.3 and denied that on the Nikahnama the address of Bahawalpur is written and he is holding a duplicate identity card and his address of Karachi and Bahawalnagar is written on the duplicate identity card. However, he deposed that he got the information of the dissolution of marriage's case in January, 1995 when he received a notice from the Arbitration Council. He denied the proclamation in the newspaper and the receipt of Frontier Post newspaper where the proclamation was given for service of summons. He denied that in August, 1994 he was residing in Bahawalnagar but admitted that after coming from America he was residing in Bahawalpur. However, he admitted that he came to Bahawalnagar many a times. He also admitted that he appeared before the Arbitration Council and gave a statement, dated 19-2-1995. Syed Noor Muhammad Shah appeared as R. W.1, Syed Maqbool Hussain Shah as R. W.2 and Syed Muhammad Shahjehan, father of the petitioner and general attorney, as R. W.3. All these witnesses supported the stance taken by petitioner that the respondent was in the knowledge of the suit for dissolution of marriage but deliberately avoided to appear in it because he showed his intention that he will destroy the life of the respondent in litigation. The petitioner also produced R.W.1 the power of attorney of respondent (under objection) the statement of the Chairman, Arbitration Council, dated 19-2-1995 Exh.R.2.
(under objection) and the statement of Arshad Mehmood Exh.R.3 (under objection) and the certificate of effectiveness of divorce Exh.R.4.
14. So far as Family Court Act, 1964 is concerned the Legislature had deviated from the complicated procedure of the Civil Procedure Code to make the procedure more easier for the marital spouses for settling their matrimonial affairs. Moreover, the learned Judge, Family Court while setting aside the ex parte decree should have judiciously applied its mind to the fact that the Iddat period started from the date of the judgment and decree, dated 31-10-1994 and the limitation to file the application for setting aside ex parte decree also ran from the date of judgment and decree or from the date of the knowledge of the same. Prior to giving the application for setting aside the judgment and decree the respondent No.2 had expressly given consent to the learned Chairman, Arbitration Council to issue a certificate of effectiveness of divorce and how could he come for setting aside of the ex pane decree where he is giving his consent to the learned Chairman, Arbitration Council to issue the certificate of effectiveness. Non-challenge of the certificate of effect-ness before the learned Collector also shows that the respondent had agreed to the issuance of certificate of effectiveness otherwise he had the right to challenge the same before the competent Authority bringing all the facts in the knowledge of the revising authority but the same was not done by him which shows that he had never challenged his consent before the learned Chairman, Arbitration Council and the finality was achieved to the order passed by the learned Chairman, Arbitration Council on 23-2-1995. The judgment and decree was delivered in favour of the petitioner on 31-10-1994 and she had remarried on 28-2-1995 after the period of Iddat.
15. Therefore, the finding of the learned Judge, Family Court being not based on sound reasoning and true appreciation of the documentary and oral evidence produced before him suffers from infirmity of law. Hence the instant writ petition is accepted and the order, dated 20-2-1997 is set aside.