IN THE HIGH COURT OF SINDH
CIRCUIT COURT,LARKANA.
CP S-280 of 2021 : Abdul Rehman Solangi v. Mst.Reema
For the petitioner : Mr. Muhammad Afzal Jagirani, Advocate
For the respondent : Mr. Akbar Ali Banwar, Advocate
Date of hearing : 20.01.2022
Date of announcement : 20.01.2022
O R D E R
Agha Faisal, J. The pertinent suit for dissolution of marriage was filed before Family / Civil Judge, Kashmore, being Family Suit No.46 of 2021, and the same was allowed vide order dated 02.8.2021, being the order impugned. It is considered illustrative to reproduce the impugned order herein below:
“The plaintiff named above filed the present suit for dissolution of her marriage on the ground of Khulla, against the defendant.
The defendant was served with the summons and filed written statement, wherein
he denied the allegation leveled by plaintiff in plaint and has prayed for
dismissal of suit. The Plaintiff and her counsel are present. Defendant and his
counsel are also present. Pre-trial proceedings held. Sufficient time was
allowed to the spouse for reconciliation talks but failed. The plaintiff
categorically refused to live with the defendant as his wife at any cost and
staled that she wants to get her marriage dissolved on the ground of Khulla.
The plaintiff further stated she has danger to life in the hand of defendant
and there is no possibility of reconciliation between them.
It is provided in proviso added as sub-section 4 of Section 10 of Family Courts Act 1964 that:
"Provided that notwithstanding any decision or judgment of any court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mahar received by the wife In consideration of marriage at the time of marriage”.
Perusal of material available in the file suggests. in the present case. the question of 7 Gower (Haq Mahar) is admitted by the plaintiff and she disclosed that dower amount was fixed 8 Tola silver which was paid by the defendant . The defendant disclosed in W/S in para no.1 that the Haq Mahar was fixed which was paid soon after the Nikkah, hence, it would not be just and proper to frame issue on the ground of mere denial nor it creates point in contest, rather it had to revert back to the old fashion of trial where both the parties would lead evidence, such process in all probabilities, would consume sufficient time and the very purpose intended to achieve through proviso to S.10(4) of West Pakistan Family Courts Act.1964 would be defeated, the sole object and intent of the legislatures is to ensure the expeditious disposal of such disputes particularly in the wake of afore-mentioned express provision of special law.
The plaintiff has satisfied the conscience of the court that there is no possibility of reconciliation between the parties and she does not want to join defendant as his wife and cannot maintain the limits as prescribed by Almighty Allah. Reliance is placed in case of Aurangzeb Vs. Mst. Gulnaz and another (PLD 2006 Karachi 563) wherein, the Honourable High Court of Sind has held as, “---Restitution of dower is not indispensable condition for grant of Khula, and non-restoration of dower and other benefits will not have any effect upon the validity of the decree--if the Family court comes to the conclusion that a wife was entitled for Khula it must pass such decree in her favour--Decision regarding to the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability” Further it has been held, regarding restitution of dower that wife lived with husband, such living can be treated as sufficient reciprocal benefit received by the husband for a dower.
In view of the above circumstances, I hold that the pre-trial proceedings as failed. The suit of the plaintiff Mst. Reema for dissolution of her marriage by way of Khulla is decreed under Section 10(4) of the West Pakistan Muslim Family Act 1964.The marriage/Nikah of plaintiff with defendant stands dissolved subject to payment of Haq Mahr. However, the decree shall take effect after expiry of 90 days…”
2. Aggrieved by the impugned order, the petitioner has filed present petition since it is averred that there is no provision of further appeal against such order of the learned Family Court.
3. It is settled law that an appeal is a creation of statute and in the absence thereof no presumption in such regard is merited. Prima facie it was the intention of the legislature to provide for expeditious disposal of family disputes and preclude the possibility of extended litigation, hence, the preclusionof appeal.
4. The absence of an appeal does not confer automatic jurisdiction upon High Court to act as the appellate court in exercise of its writ jurisdiction, which may only be invoked if the precepts of Article 199 are attracted.
5. Article 199 provides for invocation of writ jurisdiction, discretionary in nature, in absence of an alternate remedy. In the present case and circumstances there was existing remedy and the same has already been availed / exhausted.
6. Learned counsel has not argued that the impugned order suffers from any want of jurisdiction, excess of jurisdiction and / or any manifest illegality, hence no case of interference is made out there with.
7. In view hereof, this Court is constrained to observe that no case has been set forth for the invocation of the discretionary[1] writ jurisdiction of this Court, hence, this petition is hereby dismissed.
JUDGE
[1]Per Ijaz Ul Ahsan J. in Syed Iqbal Hussain Shah Gillani vs. PBC & Others reported as 2021 SCMR 425; Muhammad Fiaz Khan vs. Ajmer Khan & Another reported as 2010 SCMR 105.