2014 C L C 60
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
BIBI FEROZA and 5 others ----Petitioners
Versus
ABDUL HADI and another ----Respondents
Criminal Quashment No.201 of 2013, decided on 24th August, 2013.
(a) Muslim Family Laws Ordinance (VIII of 1961) ---
----S. 7 ---West Pakistan Family Courts Act (XXXV of 1964), Ss.5 & 10, proviso--- Dissolution
of marriage ---"Talaq" and "Khula" ---Non -return of benefits ---Effect ---Divorce on the basis of
Khula by wife is right at par with right of pronouncement of Talaq by husband, with one
difference that husband can pronounce Talaq himself but wife has to file suit in that behalf ---
Right of Khula is not contingent upon consent of husband but is dependent upon reaching
conclusion on the part of Court that spouses could no longer live within the limits of Almighty
Allah ---Wife is bound to return benefits which she received on account of marriage from
husband but Family Court determines as to what benefits have been received by wife and also to
direct their return ---Return of benefits is not a condition precedent to dissolution of marriage ---
Decree of dissolution of marriage on the basis of Khula, even though made condition upon return
of benefits, would operate to dissolve the marriage, when it is passed and effect thereof would
not be postponed till the benefits were returned--- Failure on the part of wife to return benefits
received by her from her husband within stipulated period would not adversely affect factum of
dissolution and return of bene fits by wife to husband remains merely a liability of civil nature,
which can be enforced by husband through appropriate means ---Similarly, dissolution of
marriage effected through Khula is neither revocable nor appealable and only decision regarding
dower is appealable.
(b) Criminal Procedure Code (V of 1898) ---
----S. 561 -A---Penal Code (XLV of 1860), Ss.494 & 493- A [as inserted by Protection of Women
(Criminal Laws Amendment)] Act (VI of 2006) ---Quashing of F.I.R.---Scope ---Marrying again
during li fetime of husband---Respondent was ex -husband of petitioner, who got F.I.R. registered
against petitioner and her new husband---Plea raised by petitioner lady was that F.I.R. was based
upon mala fide and she contracted second marriage after the first one had been dissolved on the
basis of Khula ---Validity ---Investigation was right of police and should come to its natural
conclusion without interference, however, proceedings under section 561- A, Cr.P.C. were
competent against any criminal inquiry or investig ation, if the same had encroached upon any
fundamental right guaranteed by the Constitution or had violated some other law or was
motivated by some mala fide reasons ---Continuance of proceedings against petitioner in a case
under S.494, P.P.C. read with S.493- A, P.P.C. [as added by Protection of Women (Criminal
Laws Amendment) Act, 2006, would amount to unnecessary harassment ---No Court on such
baseless and misconceived allegation could convict petitioner ---High Court in exercise of its
inherent jurisdictio n quashed F.I.R. registered against petitioner ---Petition was allowed in
circumstances.
Rizwana Bibi's case 2012 SCMR 94 rel.
Zaffar Hayat Mullazai for Petitioners.
Hamayun Tareen for Respondent No.12.
Miss Sarwat Hina, Addl. P.- G. for the State.
Date of hearing: 20th August, 2013.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. --- This is a petition for quashment of an
F.I.R. No.184 of 2012, dated 18th July, 2012, under section 494 read with sections 109 and 34 of
the P.P.C. and section 493 of the Woman Protection Act, 2006 of Satellite Town Police Station,
Quetta registered on the report of one Abdul Hadi son of Haji Agha Muhammad.
2. Briefly stated, the facts for disposal of the instant petition are that
complainant/respondent No.1, namely, Abdul Hadi, married with petitioner No.1 Mst. Bibi
Feroza but, subsequently, due to some differences, that had cropped up between the parties,
petitioner No.1 filed a suit for dissolution of marriage on the basis of khula before the Additional
Family Judg e, Quetta, in the month of June, 2011. The Court dissolved the marriage ties between
the parties on the basis of Khula due to failure of reconciliation proceedings by means of order
dated 18th August, 2011. It is the case of the complainant/respondent No.1 that despite of
challenging the dissolution order before this Court, the petitioner No.1 contracted second
marriage with one Nasrullah alias Kausar. He further alleged that the dissolution order passed on
the basis of Khula does not take effect within the purview of subsection (4) of section 10 of The
West Pakistan Family Courts Act, 1964 (the "Act of 1964"), unless the wife quit/waived off all
her rights and to return the benefits, which she had received on account of marriage from
husband. Thus, she is g uilty of Zina by contracting second marriage during subsistence of first
one.
3. Mr. Zafar Mullazai, learned counsel for the petitioners, contended that very registration
of F.I.R. appears to be product of mala fides, thus, the same is liable to be quash ed. He further
contended that, after dissolution of marriage ties between the parties by a competent Court of
law, petitioner No.1 Bibi Feroza, being sui juris, with her own free -will and consent and by
exercising her constitutional fundamental rights, contracted second marriage with one Nasrullah
in accordance with the injunctions of Islam and she is living with him as his legally wedded wife,
thus, the F.I.R., which is outcome of mala fides and dishonest intentions on the part of the
complainant, is liable to be quashed.
4. On the other hand, Mr. Hamayun Tareen, Advocate, appearing on behalf of the
complainant/respondent, has taken a stand that the truth or falsehood of the allegations in F.I.R.
will be seen by the police authorities during the course of investigation and, thereafter, by the
trial Court and the quashment thereof, at this stage, would be nothing, but tantamount to interfere
in the investigation of police. He further submitted that the petitioner, while contracting second
marriage prior to waiving off all her rights and returning all the benefits, which she had received
on account of marriage from husband, has committed an offence within the mischief of the
offences invoked in the F.I.R.
5. I have heard the learned counsel for the parties and given my anxious consideration to the
arguments advanced by them and have also gone through the material placed on file. Before
entering into the controversy, it would be in order to reproduce hereinbelow the proviso added to
section 10 of the Act of 1964, through Ordinance No.LV of 2002, published in the extraordinary
official Gazette dated 1st October, 2002, which is not only relevant for resolving the controversy
involved in the instant petition, but also furnishes a complete answer to it. The said proviso reads
as follows: ---
"Provided that notwithstanding any decision or judgment of any court or tribunal, the
Family Court in a suit for dissolution of marriage, if conciliation fails, shall pass decree for
dissolution of marriage forthwith and shal l also restore to the husband the Haq Mehr received by
the wife in consideration of marriage at the time of marriage."
6. The aforesaid provision of law clearly demonstrates that divorce on the basis of khula by
wife is a right at par with the right of p ronouncement of talaq by husband, with one difference
that husband can pronounce "talaq" himself, but the wife has to file a suit in that behalf. Right of
khula is not contingent upon the consent of the husband, but is dependent upon reaching a
conclusion on the part of Court that the spouses could no longer live within the limits of
Almighty Allah. It is true that wife would be bound to return the benefits, which she had
received on account of marriage from husband, but it is equally true that the Family C ourt would
determine as to what benefits had been received by wife and also to direct their return. Return of
benefits, however, is not a condition precedent to the dissolution of marriage. The decree of
dissolution of marriage, on the basis of khula, even though made conditional upon return of the
benefits, would operate to dissolve the marriage, when it is passed and effect thereof would not
be postponed till the benefits were returned. The failure on the part of wife to return the benefits
received by her from her husband within the stipulated period would not adversely affect the
factum of the dissolution, and return of benefits by wife to husband remained merely liability of
a civil nature, which could be enforced by the husband through appropriate means. Similarly,
dissolution of marriage effected through khula is neither revocable, nor appealable and only
decision qua dower is appealable. It would also be relevant to mention here that mere filing or
pendency of a constitutional petition against the judgment and decree passed by the Family Court
on the basis of khula does not invalidate the divorce.
7. The record also depicts that the suit for dissolution of marriage on the basis of khula was
instituted in the month of June, 2011 and after failure of r econciliation proceedings, the marriage
was dissolved on 18th August, 2011 by the learned Additional Family Judge, Quetta, on the basis
of khula in the following words: ---
"Efforts were made by the Court to remove the differences between the spouses, bu t
plaintiff straightaway refused to rejoin the defendant and was adamant to have developed fixed
aversion against her husband and stated that she cannot lead harmonious life with defendant
within the limits ordained by Allah."
The petitioner as per nikahnama, copy whereof is annexed with the petition, contracted second
marriage with one Nasrullah Khan alias Kausar on 11th February, 2012, on the expiration of
period of iddat. The judgment and decree dated 18th August, 2011 clearly show that the mischi ef
clauses of the provisions invoked in the F.I.R. are not attracted. The petitioner No.1, being a sui
juris, woman was entitled to contract second marriage of her own free -will. Although Article 35
of the Constitution of the Islamic Republic of Pakistan 1973 (the "Constitution") commands that
the State shall protect the marriage, the family, the mother and the child, yet it is textbook
example of a case of misexercise of powers on the part of public functionaries for illegal and ill -
gotten gains, while put ting in motion the machinery of criminal law to destroy the matrimonial
and harmonious life of a helpless lady.
8. The scope and importance of Article 35 of the Constitution as well as the question of
elimination of all forms of discrimination against wo men, were examined by Hon'ble Supreme
Court of Pakistan in Rizwana Bibi's case, 2012 SCMR 94, in which his lordship Mr. Justice
Tassaduq Hussain Jilani, who spoke for the Court while construing the meaning of Article 35 of
the Constitution and importance o f different conventions and declarations of the United Nations,
observed: ---
"13. The State functionaries are duty bound to obey the law of the land and also to realize that
Pakistan is a Member of United Nations and is signatory to the "Convention on the Elimination
of all Forms of Discrimination Against Women" which in its Article 16 enjoins all the member
states as under: --
"1. States Parties shall take all appropriate measures to eliminate, discrimination against
women in all matters relating to mar riage and family relations and in particular shall ensure on
the basis of equality of men and women: ---
(a) the same right to enter into marriage,.
(b) the same right freely to choose a spouse and to enter in marriage only with their free and
full cons ent;
(c) the same rights and responsibilities during marriage and at its dissolution."
8-A. So far as the contention of the learned counsel regarding investigation by police authorities
is concerned, it is true that the investigation is the right of police and should come to its natural
conclusion without interference, however, it is equally true that there is also no dispute on the
point that proceedings under section 561- A of the Cr.P.C. are competent against any criminal
inquiry or investigation, if the same encroaches upon any fundamental right guaranteed by the
Constitution or violates some other law or is motivated by some mala fide reasons.
9. For all that has been stated above, the continuance of the proceedings against the
petitioners in a cas e under section 494 read with sections 109 and 34 of the P.P.C. and 493 of the
Women Protection Act, 2006 will amount to unnecessary harassment. The result is obvious and
no Court on such baseless and misconceived allegation can convict the petitioners. The result is
that the petition is allowed; consequently, F.I.R. No.184 of 2012 registered at Satellite Town
Police Station, Quetta is hereby quashed.
These are the reasons of my short order dated 20th August, 2013 announced in the open
Court.
MH/89/Bal . Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.