Jurisdiction lackness in a family suit can be addressed at initial stages
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This case is about a husband, Muhammad Naeem, challenging a family court decision that dissolved his marriage to Robina Kausar on the basis of khula (a wife-initiated divorce). The wife had sued for dissolution of marriage, dower, maintenance for herself and her minor daughter, and dowry articles. The family court granted the divorce, denied her dower claim, awarded maintenance for her and the child, and ordered return of dowry articles. The husband challenged the divorce decree in the Lahore High Court, arguing the court lacked territorial jurisdiction and that since the wife's jewelry (Haq Mehr) hadn't been returned to him, the divorce decree was unlawful.
The High Court rejected both arguments. First, it held that jurisdictional objections must be raised at the earliest possible stage of a case, and since the husband had actually admitted in his written statement that the court had proper territorial jurisdiction, he could not raise the objection later. Second, the court explained that under amended family law provisions, return of dower to the husband is only required when a divorce is granted immediately after failed reconciliation attempts. Since this case went through full evidence and trial rather than an immediate decree, the wife was not obligated to return her gold jewelry. The petition was dismissed, upholding the divorce.
This case matters because it clarifies two important procedural rules: jurisdiction objections cannot be raised belatedly, and the law aims to protect wives from prolonged litigation in divorce cases.
یہ مقدمہ ایک شوہر، محمد نعیم، کی جانب سے فیملی کورٹ کے اس فیصلے کو چیلنج کرنے سے متعلق ہے جس میں اس کی اور روبینہ کوثر کی شادی کو خلع کی بنیاد پر ختم قرار دیا گیا تھا۔ بیوی نے تنسیخ نکاح، حق مہر، اپنے اور اپنی نابالغ بیٹی کے لیے نان و نفقہ، اور جہیز کے سامان کی واپسی کے لیے دعویٰ دائر کیا تھا۔ فیملی کورٹ نے خلع کی ڈگری دے دی، حق مہر کا دعویٰ مسترد کر دیا، بیوی اور بچی کے لیے نان و نفقہ منظور کیا، اور جہیز کا سامان واپس کرنے کا حکم دیا۔ شوہر نے خلع کی اس ڈگری کو لاہور ہائی کورٹ میں چیلنج کیا اور موقف اختیار کیا کہ عدالت کو علاقائی دائرہ اختیار حاصل نہیں تھا، اور چونکہ بیوی کے زیورات (حق مہر) اسے واپس نہیں کیے گئے تھے، اس لیے خلع کی ڈگری غیر قانونی تھی۔
ہائی کورٹ نے دونوں دلائل مسترد کر دیے۔ پہلی بات یہ کہ عدالت نے قرار دیا کہ دائرہ اختیار سے متعلق اعتراض مقدمے کے ابتدائی مرحلے میں ہی اٹھایا ج
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PLJ 2011 Lahore 59 [Bahawalpur Bench Bahawalpur] Present: Ijaz Ahmed, J. MUHAMMAD NAEEM--Petitioner versus JUDGE FAMILY COURT, etc.--Respondents W.P. No. 3675 of 2009/BWP, decided on 23.8.2010. Punjab Family Courts Act, 1964 (Amended Ordinance, 2002)-- ----S. 10(4)--Scope of--Suit for dissolution of marriage, recovery of dower, recovery of maintenance allowance for her and minor daughter--Object of lacked territorial jurisdiction to try the suit--Validity--Objection qua the territorial jurisdiction of a Court can only be raised at the earliest stage of litigation and cannot be entertained at such stage--Amendment in West Pakistan Family Courts Act, introduced by amending Ordinance is meant for expeditious adjudications of suits for dissolution of marriage--Purpose was to save the wife from protracted litigation and to enable her to earn a decree for dissolution of marriage before entering the sphere of superannuation, when her wrinkles would make her unacceptable to prospective suitors--Decree was not passed without jurisdiction--Petition was dismissed. [P. ] A Punjab Family Courts Act, 1964 (Amended Ordinance, 2002)-- ----S. 10--Scope of amendment--Reconciliation proceedings between the parties--In case of failure in reconciliation, the Court has to pass a decree for dissolution of marriage--When such an expeditious procedure is adopted, only then the Court can order the restoration of Haq Mehr in favour of husband--Provisions of amended S. 10(4) makes it clear that on the even to failure of the reconciliation, the restoration of Haq Mehr only follows the decree passed--Held: Amendment provides the plaintiff wife a chance to save some valuable part of her young age by getting an expeditious adjudication in return of the dower she had received at the time of her marriage. [P. ] B & C PLD 2007 Lah. 626, ref. PLJ 2003 Lah. 309, PLJ 2003 Lah. 760 & 2002 CLC 123, rel. Samina Qureshi, Advocate for Petitioner. Ch. Abdul Latif Shahid, Advocate for Respondents. Date of hearing: 23.8.2010. Order The petitioner impugns the Judgment and decree dated 24.3.2009 to the extent of dissolution of marriage passed by the Judge Family Court Tehsil Yazman, District Bahawalpur.
2. Respondent No. 2, Robina Kausar, instituted suit for dissolution of marriage, recovery of dower, recovery of maintenance allowance for her and Ayesha Naeem, the minor daughter and for recovery of dowry articles. The petitioner also filed a suit for restitution of conjugal rights against Robina Kausar, Respondent No. 2. All the suits were consolidated. The petitioner contested the respondent's suits. After framing the issues, the parties lead evidence. The suit of the petitioner for restitution of conjugal rights was dismissed by the learned Judge Family Court Yazman vide judgment and decree dated 24.3.2009. Through the same consolidated Judgment and decree, the suit of the Respondent No. 2/Robina Kausar for dissolution or marriage was decreed in her favour on the basis of Khula. Her suit for recovery of dower was also dismissed and she was held not entitled to the house in question. The Respondent No. 2 was entitled to recover maintenance allowance at the rate of Rs.3,000/- per month for the period of Iddat. Ayesha Naeem, the minor daughter, was also held entitled to the recovery of maintenance allowance at the rate of Rs.3,000/- from November till her marriage. The suit to the extent of recovery of dowry articles was also decreed holding the respondent wife entitled to recover Rs.2,00,000/- as alternate amount. The aggrieved petitioner preferred an appeal before the learned Additional District Judge Bahawalpur against the decree as far it related to the return of dowry articles and the maintenance allowance. The instant petition impugns the said decree to the extent of dissolution of marriage on the basis of Khula as under Section 14(2)(a) of the Family Court Act, 1964, an appeal is not maintainable.
3. It is contended by the learned counsel for the petitioner that the law provided under Section 10(4) of the Family Court Act, 1964 (Amended Ordinance, 2002) has been misapplied, it is argued that the decree for the dissolution or marriage should have followed the restoration of Haq Mehr received by the wife in consideration of the marriage. Since the restoration of Haq Mehr has not been ordered, the decree for dissolution of marriage has been passed illegally and without jurisdiction. It is further argued that in Para 18 of the impugned judgment, the learned Judge Family Court has observed that Haq Mehr comprising 4« Tolas of Gold Jewellery had been paid to the respondent/ wife. In view of this finding, the restoration of the said Haq Mehr was a necessary consequence. The territorial jurisdiction of the Court is also disputed by the petitioner.
4. On the other hand, the learned counsel appearing on behalf of Respondent No. 2 contends that the petitioner cannot raise objection regarding the territorial jurisdiction of the Judge Family Court as he had not done so while filing the written statement. In Para 11 of the written statement, the petitioner had admitted the residence of the parties being within the territorial jurisdiction of this Court. The learned counsel for Respondent No. 2 further contends that in the event of passing a decree for dissolution of marriage on the basis of Khula, the wife could not be obliged to return the Haq Mehr received by her. Reliance is placed on "PLJ 2003 Lahore 309" titled (Mst. Saiqa Vs. Addl: District Judge, etc) "PLJ 2003 Lahore 760" titled (Munawar Iqbal Satti. Vs. Mst. Uzma Satti and two others) and "2002 CLC 123" (Mst. Asghari Sultana Vs. Ch. Shamim Ahmed and two others).
5. I have heard the learned counsel for the parties and have also gone through the record.
6. As far the objection of the learned counsel for the petitioner that the Judge Family Court lacked territorial jurisdiction to try the suit of the petitioner is concerned, it is devoid of any force The petitioner, in his written statement, has admitted the residence of the parties being within the territorial jurisdiction of the Judge Family Court. Moreover, the objection regarding the territorial jurisdiction of a Court can only be raised at the earliest stage of the litigation, and cannot be entertained at this stage. The amendment in West Pakistan Family Court Act, 1964 introduce by amending Ordinance, LV of 2002 is meant for the expeditious adjudications of suits for dissolution of marriage. The purpose was to save the wife from protracted litigation and to enable her to earn a decree for dissolution of marriage before entering the sphere of superannuation, when her wrinkles would make her unacceptable to the prospective suitors. The provisions of the amended Section 10 of West Pakistan Family Courts Act provide for the reconciliation proceedings between the parties before recording of the evidence. In case of failure in reconciliation, the Court has to pass a decree for dissolution of marriage forthwith. When such an expeditious procedure is adopted, only then the Court can order the restoration of Haq Mehr in favour of the husband. The provisions of the amended Section 4 of Section 10 make it clear that on the event of the failure of the reconciliation, the restoration of Haq Mehr only follows the decree passed forthwith. In my humble view, the amendment provides the plaintiff wife a chance to save some valuable part of her young age by getting an expeditious adjudication in return of the dower she had received at the time of her marriage. In the instant case, the suit was not decreed forthwith after the reconciliation failed between the parties. Issues were framed and evidence was recorded. Now the respondent wife cannot be bound to return 4« Tolas of gold ornaments received by her from the petitioner as Haq Mehr. My view seeks support from the judgment cited as "PLD 2007 Lahore 626" titled (Khalid Mehmood Vs. Anees Bibi and 2 others) I do not find any illegality or any irregularity in the judgment passed and the decree drawn by the learned Judge Family Court. The decree has not been passed without jurisdiction. This petition has no force. It is, hereby dismissed. (R.A.) Petition dismissed.