:
S. 5, 10(4), 14 Family Courts Act
(SCMR)
P L D 2013 Peshawar 12
P L D 2013 Peshawar 12
Before Mian Fasih-ul-Mulk and
Rooh-ul-Amin Khan, JJ
MUHAMMAD FAISAL KHAN---Petitioner
Versus
Mst. SADIA and another---Respondents
Writ Petition No.1405 of 2011, decided on 10th October, 2012.
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S.10---Pre-trial proceedings---Compatibility with Muslim Law---Scope---Provision of S.10 of West
Pakistan Family Courts Act, 1964 were fully in consonance with Muslim Law.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched. & S.10---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Dissolution of marriage
on ground of Khula'---Scope---Consent of husband for such dissolution would not be necessary---Judge,
in case of husband's dis-agreement to dissolve marriage, could determine question as to whether
spouses, if they continued living together, could observe limits of God or not---Duty of Judge to make
genuine attempt for reconciliation between spouses---Judge in case of failure of reconciliation efforts
could pass forthwith decree for dissolution of marriage---Where Judge while passing such decree,
observed that wife was not willing to live with husband without any fault of his, then Judge would have
no option but to restore to husband dower (Haq-e-Mehr) received by wife at time of marriage---Wife
seeking divorce for having developed extreme hatred and disliking for her husband would have to
restore the consideration of marriage (dower) to husband---Where in view of Judge husband by his
arrogant, cruel and obnoxious nature or behavior compelled wife to seek "Khula", then she
would be entitled to all due benefits along with dissolution of marriage---Principles and
illustration.
P L D 2013 Lahore 88
Before Muhammad Farrukh Irfan Khan, J
Major QAMAR ZAMAN QADIR---Petitioner
Versus
Page 2 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
JUDGE FAMILY COURT, JEHLUM and others---Respondents
Writ Petition No.1982 of 2011, decided on 19th October, 2012.
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Scehd.---Muslim Family Laws Ordinance (VIII of 1961), S.7---Constitution of Pakistan, Art.199---
Constitutional petition---Dissolution of marriage on the basis of Khula'---Scope---Khula' obtained from
wife under coercion---Effect---Suit for dissolution of marriage on basis of Khula' was decreed when
husband in his statement stated that he would have no objection to such decree---Special attorney
appeared on behalf of wife and she did not tender appearance in person and no pre-trial reconciliation
took place--Wife made statement before High Court that Khula' was not sought by her on her own
freewill and was procured by appointment of special attorney by her father under coercion---Contention
of the husband (petitioner) was that said decree was illegal and of no binding effect---Validity---Pivotal
question to be determined was as to what was the effect of decree of dissolution of marriage and
whether parties could rejoin as husband and wife after pronouncement of Khula' by court---Khula' was
repudiation with consent at instance of wife in which she agreed to give consideration to husband for
release from marital bond and it had the effect of "talaq bayen" (single divorce)---Pronouncement of
Khula' by court would amount to single divorce and husband would be at liberty to marry the wife again
after solemnization of nikah without intervention of a third person---Section 7(6) of the Muslim Family
Laws Ordinance, 1961 did not debar wife whose marriage had been terminated by divorce under S.7 of
the said Ordinance from remarrying the same husband without intervening marriage with a third
person---High Court set aside orders of courts below---Constitutional petition was allowed, accordingly.
2 0 1 0 S C MR 1403
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Ghulam Rabbani,
JJ
TAYYABA YUNUS---Petitioner
Versus
MUHAMMAD EHSAN and others---Respondents
Civil Petition No. 71 of 2010, decided on 12th February, 2010.
(On appeal from the judgment dated 19-11-2009 in W.P. No.297 of 2009 passed by the
Page 3 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Peshawar High Court, Abbottabad Bench).
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched & S. 14---Suit for dissolution of marriage on ground of Khula' and recovery
of dower amount---Family Court granted decree for dissolution of marriage, but refused to
grant relief of dower---Decree for dower granted by Appellate Court was set aside by High
Court on the ground that findings of Family Court for not granting dower could not be
reversed without disturbing ground of Khula', which would tantamount to an appeal against
dissolution, which was barred by law---Validity---Bar contained in S. 14(2)(b) of West Pakistan
Family Courts Act, 1964 would come in way only when decree passed for dower did not
exceed Rs.30,000---Family Court, in the present case, had not granted any amount of dower to
plaintiff, thus, she was not precluded from preferring an appeal for an appropriat e relief of
dower, which being a condition sine qua non for a valid marriage---Appeal was a
continuity of original proceedings of a suit---Question needing resolution by Appellate Court
would be whether plaintiff was entitled to dower amount on basis of material available on
record---Bar contained in S. 14(2) of West Pakistan Family Courts Act, 1964 would not
come in way of plaintiff---Supreme Court set aside impugned judgment and remanded case
to High Court for its fresh decision on merits after hearing both parties.
2008 S C M R 186
[Supreme Court of Pakistan]
Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ
MUHAMMAD BASHIR ALI SIDDIQUI----Petitioner
Versus
Mst. SARWAR JAHAN BEGUM and another----Respondents
Civil Petition No.413-K of 2006, decided on 2nd October, 2006.
(On appeal from judgment, dated 19-5-2005 passed by High Court of Sindh, Circuit Bench at
Hyderabad in C.P. No.S-179 of 2005).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art.185(3)---Dissolution of marriage on
ground of Khula---Parties were married in the year 1970---Nikahnama had provided that in case
respondent/wife obtained Khula, she would have to pay a sum of Rs.2,50,000 to the
petitioner/husband; and if the petitioner would divorce the respondent, he would pay a sum of
Rs.2,50,000 to her---Suit filed by respondent (wife) for obtaining dissolution of marriage on
ground of Khula was finally decreed---Petitioner (husband) had contended that Family Judge as
well as High Court had failed to take into account the Nikahnama-Contention of petitioner was
Page 4 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
that it was incumbent upon Family Court to award Rs.2,50,000 while granting decree by way of
Khula in favour of petitioner---Contention of petitioner was absolutely frivolous as it was against
the basic principle of law which required the parties to remain in marital tie in a peaceful and
tranquil atmosphere and were not required to be bound by stringent conditions to remain in
marriage bond.
2006 S C M R 1944
[Supreme Court of Pakistan]
Present: Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ
Dr. NOSHEEN QAMAR----Petitioner
Versus
SHAH ZAMAN KHATTAK and another----Respondents
Civil Petition No.132-P of 2003, decided on 30th May, 2006.
(On appeal from the judgment, dated 25-11-2002 passed by High Court of Peshawar in Writ
Petition No.1321 of 2000).
West Pakistan Family Courts Act (XXXV of 1964)--
----S. 5---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Civil Procedure Code (V
of 1908), O.XLI, R.22---Constitution of Pakistan (1973), Art.185(3)---Divorce---Recovery of
dower---Plea of cruelty---Non-filing of cross objections---Leave to appeal was granted by
Supreme Court to consider; whether finding of Family Court that issue of cruelty was not
proved, was not in accordance with the evidence and reasoning of Family Court itself; whether
in the circumstances of the case, could it not be said that Family Court had not dissolved the
marriage on the ground of Khula: whether High Court did not err in law by observing that wife
had not challenged the findings on issue of cruelty because decree was in her favour which she
could. under O.XLI, R.22 C.P.C. defend even on the ground decided against her; whether the
principle that if wife had been compelled by ill-treatment of husband to seek for divorce, it was
unlawful for him to take indemnity and if man had forced the woman to accept Khula, a Talaq
would take place without any liability to pay the indemnity; whether dower was not a benefit
arising out of marriage to be restored to husband in case of dissolution of marriage on the
ground of Khula; whether in absence of specific demand by husband or indemnity in the form
of waiver of cash dower of Rs.200,000, High Court could grant husband the indemnity;
whether rule laid by High Court in the cases titled Mukhtar Ahmed v. Mst. Ume Kalsoom and
another, reported as PLD 1975 Lah. 805 and Noor Muhammad v. Judge, Family Court.
Page 5 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Burewala, District Vehari and another, reported as PLD 1989 Lah. 31, did not lay down the
correct law; and whether decree of cash dower could be collaterally impeached before High
Court during pendency of appeal before Lower Appellate Court.
2006 S C M R 100
[Supreme Court of Pakistan]
Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ
ABID HUSSAIN---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, ALIPUR, DISTRICT MUZAFFARGARH and
another---Respondents
Civil Petition No.3444-L of 2004, decided on 18th October, 2005.
(On appeal from the judgment, dated 1-11-2004 passed by the Lahore High Court, Multan
Bench, in Writ Petition No.5915 of 2004).
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 14---Right of appeal, exercise of---Principles---Dissolution of marriage---Object behind
non-provision of appeal in case of dissolution of marriage was to protect women, an under
privileged and generally oppressed section of the society, from prolonged and costly litigation, as
such it aimed to put a clog on the right of husband---Improper to construe S.14 (2)(a) of West
Pakistan Family Courts Act, 1964, in a way so as to deprive a wife from appealing from the
decree refusing her relief on the grounds which according to Family Court had not been proved
but granting decree of dissolution on some other ground---Such interpretation would be in
violation of wholesome provision of appeal contained in S.14 (1) of West Pakistan Family
Courts Act, 1964, and to defeat the very object of introducing the Family Courts Act, 1964.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
---Ss. 5 & 14---Constitution of Pakistan (1973), Art.185(3)--Dissolution of marriage---Grounds
other than Khula---Wife filed suit for dissolution of marriage on the ground of Khula and other
grounds of habitual cruelty and non-payment of maintenance---Family Court decreed the suit on
the basis of Khula and directed the wife to return the house which was given to her as dower at
the time of her marriage---Appellate Court allowed appeal of wife and converted dissolution of
marriage on the basis of cruelty, whereby she was not obliged to return the house---
Page 6 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Constitutional petition filed by husband before the High Court, against the judgment and decree
passed by Appellate Court, was dismissed---Plea raised by husband was that the appeal filed by
wife before Appellate Court was not competent as marriage was dissolved on the ground of
Khula---Validity---As Family Court dismissed the suit of wife or did not decree the suit on the
grounds of cruelty and non-maintenance, such wife could file appeal under S.14 (1) of West
Pakistan Family Courts Act, 1964---Appeal under 5.14(1) of West Pakistan Family Courts Act,
1964, could be filed not only from the decree passed by Family Court but also from the `decision
given'---Appeal of wife was maintainable against the decision given by Family Court that wife
was not entitled to dissolution of marriage on the grounds of cruelty and / or non-maintenance---
Both the Appellate Court as well as High Court had rightly evaluated the evidence to conclude
that wife was entitled to dissolution of marriage on the ground of cruelty, which ground had been
established---Supreme Court declined to interfere in the judgment and decree passed by the
Courts below---Leave to appeal was refused.
P L D 2005 Supreme Court 293
Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ
Mst. NASEEM AKHTAR---Petitioner
Versus
MUHAMMAD RAFIQUE and others---Respondents
Civil Petition No.2470 of 2002, decided on 3rd December, 2004.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated
31-10-2002 passed in W.P. No.3183 of 2002).
(a) Muslim Family Laws Ordinance (VIII of 1961)---
---S.8---West Pakistan Family Courts Act (XXXV of 1964), S.5--Dissolution of marriage---Khula---Emotion
of hatred---Determination--No yardstick can be fixed to define or determine factum of hatred--Emotion
of hatred can be inferred on the basis of circumstances of each case specially from the statement of wife
recorded by Family Court--Emotion of love and hatred cannot be adjudged on rational basis---Only
aspect which requires consideration in such cases would be as to whether husband and wife can live
together in order to perform their matrimonial obligations and not the solid proof qua hatred or
aversion.
Amanullah v. District Judge, Jaranwala 1996 SCMR 411 rel.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
Page 7 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
----S.5---Muslim Family Laws Ordinance (VIII of 1961), S.8--Dissolution of marriage---Hatred towards
husband---Wife filed suit for dissolution of marriage but Family Court dismissed the same on the ground
that she could not substantiate the alleged hatred and aversion against her husband---Judgment and
decree passed by Family Court was maintained by Lower Appellate Court as well as by High Court---
Validity---Hatred and aversion could neither be prescribed nor confined within the limited sphere and no
mechanism had been evolved to express `hatred or aversion' precisely and in a definite manner---Suit
for dissolution of marriage was filed by wife on 6.12.2000, which itself was demonstrative of the fact
that she did not want to live with her husband which indicated the degree of hatred and aversion---Wife
personally submitted to Supreme Court that the Court might hang her and whatever might be the
circumstances, she was not prepared to live with her husband; as such the same was hatred or aversion
and nothing else--Judgments and decrees passed by the Courts below were set aside and petition for
leave to appeal was converted into appeal---Suit for dissolution of marriage was decreed in favour of the
wife---Appeal was allowed.
P L D 2005 Supreme Court 293
Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ
Mst. NASEEM AKHTAR---Petitioner
Versus
MUHAMMAD RAFIQUE and others---Respondents
Civil Petition No.2470 of 2002, decided on 3rd December, 2004.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated
31-10-2002 passed in W.P. No.3183 of 2002).
b) West Pakistan Family Courts Act (XXXV of 1964)---
----S.5---Muslim Family Laws Ordinance (VIII of 1961), S.8--Dissolution of marriage---Hatred
towards husband---Wife filed suit for dissolution of marriage but Family Court dismissed the
same on the ground that she could not substantiate the alleged hatred and aversion against her
husband---Judgment and decree passed by Family Court was maintained by Lower Appellate
Court as well as by High Court--Validity---Hatred and aversion could neither be prescribed nor
confined within the limited sphere and no mechanism had been evolved to express `hatred or
aversion' precisely and in a definite manner---Suit for dissolution of marriage was filed by wife
on 6.12.2000, which itself was demonstrative of the fact that she did not want to live with her
husband which indicated the degree of hatred and aversion---Wife personally submitted to
Supreme Court that the Court might hang her and whatever might be the circumstances, she was
not prepared to live with her husband; as such the same was hatred or aversion and nothing
else--Judgments and decrees passed by the Courts below were set aside and petition for leave to
Page 8 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
appeal was converted into appeal---Suit for dissolution of marriage was decreed in favour of the
wife---Appeal was allowed.
2003 S C M R 1325
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
ASHIQ HUSSAIN SAEED---Petitioner
Versus
Mst. FARZANA CHAUDHRY and others---Respondents
Civil Petition for Leave to Appeal No.2450/L of 2001, decided on 19th June, 2002.
(On appeal from the judgment dated 9-5-2001 of the Lahore High Court, Lahore, passed in Writ
Petition No.7615 of 2001).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5---West Pakistan Family Courts Rules, 1965, R.13---Constitution of Pakistan (1973), Art.
185(3)---Dissolution of marriage---Ex parte decree, setting aside of---Marriage after decree---
Marriage was dissolved on the basis of ex parte decree in favour of lady who after passing period
of Iddat, contracted second marriage---As service was duly effected on the defendant/exhusband,
Family Court dismissed the application for setting aside the ex parte decree and the
order was maintained by Appellate Court as well as by High Court ---Validity--Lady, after
obtaining ex parte decree for dissolution of marriage, contracted second marriage after passing
the period of Iddat and from that wedlock a daughter was born---Defendant/ex-husband had the
knowledge of pendency of the proceedings for dissolution of marriage and he deliberately
avoided his appearance---When the lady had already contracted a second marriage and was
living with her second husband, and the defendant/ex-husband had failed to, substantiate his nonservice
in the suit for dissolution of marriage, Supreme Court did not find it a fit case for
interference---Leave to appeal was refused.
Page 9 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
2003 S C M R 1551
[Supreme Court of Pakistan]
Present Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ
ABDUL FATEH BABAR SANI---Petitioner
Versus
Mst. NAUREEN and another---Respondents
Civil Petition No.309-K of 2000, decided on 24th May, 2001.
West Pakistan Family Courts Act (XXXV of 1964)----
----S.5 & Sched.---Constitution of Pakistan (1973), Arts. 185(3) & 199--Constitutional petition---
Dissolution of marriage by Khula---Restitution of conjugal rights---Family Court decreed wife's
suit, but dismissed husband's suit---High Court upheld both judgments---Validity---Wife would
be entitled to have dissolution of marriage on ground of Khula`, if she had made out a case under
law---Husband would be entitled to restitution of conjugal rights, if he had proved his case for
such rights--Family Court after properly appreciating evidence on record had come to the
conclusion that wife was entitled to dissolution of marriage on ground of Khula, while husband
was not entitled to restitution of conjugal rights---Family Court and High Court had concurred
findings of fact, wherein no misreading or non-reading of evidence was found--Apprehension of
husband that life and future of his son would be spoiled, could not be considered in law to be a
val;d ground for reversing impugned judgments---Wife before Supreme Court refused to live
with husband on the ground his being cruel to her and that she would not live with him within
limits of God, thus, there was no need to give parties further chance for reconciliation---Supreme
Court dismissed petition and refused leave.
P L D 2002 Supreme Court 273
Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ
MUKHTAR AHMED ---Appellant
Versus
ANSA NAHEED and 2 others---Respondents
Civil Appeal No.583 of 1995, decided on 29th October, 2001.
Page 10 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(On appeal from the judgment dated 27-10-1993 of Lahore High Court in Writ Petition No. 1660 of
1992).
(a) West Pakistan Family Courts Act (XXXV of 1964)-----
----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Where marriage was
dissolved on various grounds including Khula', then wife would be entitled to recover dower and dowry,
but where it was dissolved solely on the ground of Khula' then her offer made for getting marriage
dissolved on Khula' would be examined---Wife tiled suit for dissolution of marriage on various grounds
viz. cruelty, non-payment of maintenance, non-performance of marital obligations, impotency of
husband and Khula'---Wife also filed suit for recovery of dowry amount---Family Court decreed the suit
for dissolution of marriage on all such grounds holding that wife in lieu of Khula' would not be entitled
to claim dower, dowry and maintenance ---Husband, in view of such findings, filed in latter suit an
application for rejection of the plaint---Wife filed application for clarification of judgment and decree,
but it was dismissed by Family Court and its order was maintained by the Appellate Court---High Court
accepted Constitutional petition tiled by wife and set aside the conditions regarding relinquishment of
dower, dowry and maintenance---Contention of husband was that High Court in exercise of
Constitutional jurisdiction could not change judgment and decree passed by Family Court, especially
when the wife had not challenged same and her petition for clarification had been dismissed by Courts
below---Held': wife in her deposition recorded before Family Court had forgiven only her claim for
remaining amount of dower in lieu of Khula' and had not given up her claim of dowry---Marriage was
dissolved on various 'rounds including Khula'---Where marriage was dissolved on other grounds also,
then wife would be entitled to recover amount of dower and dowry, but where it was dissolved solely
on ground of Khula', then situation would be different and it would be examined keeping in view the
offer she had made for getting marriage dissolved on Khula'--Findings of High Court were correct and
not open to any exception--Supreme Court dismissed the appeal of husband while making it clear that
suit tiled by wife for recovery of dowry amount would be decided on its own merits.
1998 S C M R 954
[Supreme Court of Pakistan]
Present: Ajmal Mian and Fazal Ilahi Khan, JJ
ABDULLAH---Petitioner
versus
Mst. ABIDA and another---Respondents
Page 11 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Civil Petition for Leave to Appeal No.379 of 1995, decided on 15th November, 1995.
(On appeal from the judgment dated 24-4-1995 of. the Lahore High Court, Multan Bench,
Multan, passed in Writ Petition No.2816 of 1993).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)=--Dissolution of marriage on
ground of Khula'---Finding rendered by Family Court was maintained by High Court in
dismissing husband's Constitutional petition against judgment and decree of Family Court---
Validity---Petition for leave to appeal was barred by time by 35 days and ground for delay,
that petitioner had undergone eye operation seemed to be not sufficient for operation was
carried out prior to expiry of period of limitation for filing petition for leave to appeal--On
merits too, there seemed to be no infirmity in reasoning of High Court in upholding finding
of Trial Court---High Court was justified in not pressing into service its Constitutional
jurisdiction involving determination of question of fact which was competently concluded by
Family Court, inter alia, on basis of admission of petitioner in cross-examination---Petition
for leave to appeal was without merits---Leave to appeal was refused in circumstances
1997 SCMR 1601
[Supreme Court of Pakistan]
Present: Abdul Hafeez Memon, Mukhtar Ahmad Junejo and Raja Afrasiab Khan, JJ
SALEEM JAHANGIR---Petitioner
versus
Mst. KHATM-UN-NISA---Respondent
Civil Petition for Leave to Appeal No.45-Q of 1996, decided on 22nd May, 1997.
(On appeal from the judgment of the Balochistan High Court dated 22-4-1996 passed in Family
Appeal No.l of 1995 and Cross Objection No.2 of 1995).
West Pakistan Family Courts Act (XXXV of 1964)---
-.---S.5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)---Wife's suit for dissolution of
marriage on ground of Khula' decreed by High Court---High Court while reversing finding of
Trial Court noted that Court below had not taken note of its own observations made in its order,
regarding conduct of wife, in which she had explained extreme hatred---Prolonged litigation
between parties, which was full of allegations and counter-allegations against each other, itself as
a factor was sufficient to hold that wife had developed intense dislike towards her husband and it
was not possible for her to lead happy matrimonial life with him---Judgment of High Court
clearly indicated that it proceeded on correct principles of law and had also correctly appreciated
Page 12 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
evidence on record in reaching findings and acted rightly in setting aside judgment and decree
passed by Family Court---Judgment of High Court would warrant no interference---Leave to
appeal was refused in circumstances.
1997 SCMR 1599
[Supreme Court of Pakistan]
Present: Abdul Hafeez Memon, Mukhtar Ahmand Junejo and Raja Afrasiab Khan, JJ
ABDUL AZIZ---Petitioner
versus
Mst. MALIKA and another---Respondents
Civil Petition for Leave to Appeal No.24-Q of 1996, decided on 23rd May, 1997.
(On appeal from the judgment of the Balochistan High Court dated 6-3-1996 passed in
Constitution Petition No.25 of 1996).
West Pakistan Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Constitution of Pakistan (1973), Arts. 185(3) & 199--Marriage was dissolved
by Family Court---High Court declined to interfere with judgment of Family
Court---Validity---Husband's main argument, that suit was decreed on basis of solitary statement
of wife whereas other evidence also ought to have been led by her to substantiate her plea and
that in suit for dissolution of marriage she ought to have asked for Khula' was of no
consequence, for proof would depend ' on quality, and not quantity of evidence--Courts below in
considering evidence adduced by wife were convinced that parties would not be able to lead
happy and harmonious life and decreed wife's suit for dissolution of marriage---Judgments of
Courts below and evidence on record would show that wife had sufficiently proved her
case---Family Court was, thus, well within its jurisdiction and was justified in decreeing
suit---High Court acted rightly in declining to interfere with judgment and decree of Trial Court
in exercise of its Constitutional . jurisdiction---Leave to appeal was refused in circumstances.
1994 SCMR 2019
[Supreme Court of Pakistan]
Present: Muhammad Rafiq Tarar and
Page 13 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Saeeduzzaman Siddiqui, JJ
ABDUL RIAZ---Petitioner v
versus
HAMIDAN BEGUM and 2 others---Respondents
Civil Petition for Leave to Appeal No. 431 of 1993, decided on 27th November, 1993.
(On appeal from the judgment dated 28-6-1993 passed by a learned Single Judge of the Lahore
High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No. 607/92).
West Pakistan Family Courts Act (XXXV of 1964)---
----S, 5 & Sched: -Constitution of Pakistan (1973), Art. 185(3)---Dissolution of marriage---Issues
relating to non-payment of maintenance for over two years; failure to perform marital obligations
for over three years; habitual cruelty were decided in favour of wife and decree was passed in her
favour on basis of Khula` alone subject to return of land to husband which was gifted to her by
her father-in-law---Decree, so granted was maintained by the Appellate Court---High Court in
Constitutional jurisdiction, however, while maintaining decree of dissolution of marriage set
aside condition attached to the decree for return of land to husband---Validity---High Court's
finding wherein it found that findings of Family Court on questions relating to non-payment of
maintenance, non-performance of marital obligations, habitual cruelty entitled wife to decree for
dissolution of marriage, it was wholly unnecessary for marriage to be dissolved on ground of
Khula ; such finding was well reasoned and did not suffer either from any infirmity or legal
error---Land in question, however, as per entries in "Nikahnama" was gifted to wife by her
father-in-law in lieu of services rendered by her and not in consideration for marriage--Leave to
appeal was refused in circumstances.
1994 S C M R 1124
[Supreme Court of Pakistan]
Present: Saeeduzzaman Siddiqui and Wali Muhammad Khan, JJ
MUHAMMAD SHER ---Petitioner
versus
Mst. SALMA BIBI and another---Respondents
Civil Petition No. 213 of 1992, decided on 2nd September, 1992.
Page 14 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(From the judgment/order dated 20-4-1992 passed by Lahore High Court, Rawalpindi Bench,
Rawalpindi, in W.P. No. 194/90).
West Pakistan Family Courts Act (XXXV of 1964)--
----S. 5 & Sched: --Constitution of Pakistan (1973), Art. 185 (3)---Dissolution of marriage on
Khula'---Petitioner's claim for return of benefits---Petitioner raising a new point which he had not
raised before Court below ---Effect-- Petitioner could not be allowed to raise a point for the first
time before Supreme Court for which no foundation was laid at earlier stage---High Court had
categorically stated that Trial Court while dissolving marriage of petitioner with respondent had
directed that latter would not be entitled to recover the specified dower amount---High Court's
such observation clearly showed that respondent had disclaimed right of dower while praying for
dissolution of marriage by way of Khula'---There being no illegality in the judgment of High
Court, no interference was warranted therewith---Leave to appeal was refused in circumstances.
1988 S C M R 2099
Present: Muhammad Afzal Zullah, Javid Iqba1 and Saad Saood Jan, JJ
MUHAMMAD PARVEZ--Petitioner
versus
MUHAMMAD YUSUF and another--Respondents
Civil Petition for Special Leave to Appeal No.602 of 1984, decided on 8th May, 1988.
(On appeal from the order dated 24-3-1984 of the Lahore High Court, Lahore, passed in
Writ Petition No.1147 of 1984).
West Pakistan Family Courts Act (XXXV of 1964)--
---S.5 it Sched.--Constitution of Pakistan (1973), Arts.185(3) & 199-Dissolution of marriage--
Khula' decree passed by Trial Court challenged by husband on ground that there was no specific
finding that parties would not be able to keep limits of Allah which was an essential ingredient of
such a decree--Finding of fact on issue reached by Trial Court affirmed by High
Court--Discussion by Trial Court showing that it was fully conversant with rule that Khula'
decree could be granted when it was found that parties would not be able to keep limits of
Allah--High Court also examined arguments of counsel for petitioner regarding Khula' from that
angle and came to the same conclusion as reached by the Trial Court--Held, no interference was
called for with findings of fact challenged by petitioner in Constitutional jurisdiction of High
Page 15 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Court and they were unexceptionable whether looked at from point of legality or
propriety--Leave to appeal refused.
1988 S C M R 1283(1)
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ
NIMAT ALI—Petitioner
versus
Mst. HAFEEZ BIBI and others--Respondents
Civil Petition No.831 of 1987, decided on 11th May, 1988.
(From the judgment dated 6-10,1987 passed by the Lahore High Court, Lahore in Writ Petition
No.1427/87).
West Pakistan Family Courts Act (XXXV of 1964)--
---S.5--Constitution of Pakistan (1973), Arts.185(3) & 199--Suit for dissolution of marriage--Ex
parte decree upheld in appeal and Constitutional petition--Order impugned--Even if for some
reason orders of Family Court and Appellate Court were set aside, circumstances of case were
such that Khula' would be granted to wife--No purpose, held, would be served by driving parties
to another round of litigation--Petition dismissed.
1988 S C M R 273
Present: Aslam Riaz Hussain and Javid Iqbal ,JJ
MUHAMMAD YOUNIS—Petitioner
versus
Mst. ZAKIA BIBI—Respondent
Civil Petition for Leave to Appeal No. 713 of 1987, decided on 22nd November, 1987.
Page 16 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(On appeal from the order of the Lahore High Court, Lahore dated 13th September, 1987 in
Writ Petition No. 3375 of 1987).
West Pakistan Family Courts Act (XXXV of 1964)--
---Ss.10 & 11--Constitution of Pakistan (1973), Art. 185(3)--Dissolution of marriage--Petitioner
challenging decree based on Khula in writ jurisdiction--Contentions raised that he was not
afforded opportunity for effecting compromise or to produce evidence in rebuttal of evidence
produced by respondent against him--Same grounds urged in Suprem3 Court but not established
from record which showed that sufficient opportunities were provided to petitioner for the
purpose but he failed to avail the same--Leave to appeal refused.
1987 S C M R 1161
Present: Nasim Hasan Shah and Saad Saood Jan, JJ
Mirza DAUD BAIG--Petitioner
Versus
ADDITIONAL DISTRICT JUDGE,
GUJRANWALA and others--Respondents
Civil Petition No. 1031 of 1986, decided on 27th April, 1987.
(On appeal from the judgment, dated 1-10-1986 of the Lahore High Court, Lahore in Writ
Petition No.2181 of 1986).
West Pakistan Family Courts Act (XXXV of 1964)--
---Ss. 14, 7 & 19--Court Fees Act (VII of 1870), Sched. I, Art.1 and Ss. 6, 7 &
19--AISpeal--Memorandum of appeal to be filed before District Court falls under Sched.1, Art.1,
Court Fees Act, 1870 and court-fee is payable ad valorem on the subject-matter of dispute.
Ordinarily a plaint in a suit for maintenance falls under section 7(i) and (ii) of the Court Fees Act
and attracts ad valorem court-fee on the amount claimed to be computed in accordance with
Article 1 of Schedule I of the Court Fees Act. But section 19 of the West Pakistan Family Courts
Act, 1964, alters the law contained in the Court Fees Act, 1870 to the extent that the court-fee to
be paid on any plaint filed before a Family Court shall be Rs.15 (in the Punjab). The concession
with regard to the reduction in the court-fee is restricted only to the "plaint", and not to a
"memorandum of appeal". The omission of "memorandum of appeal" in this section is
Page 17 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
significant because both a "plaint" and a "memorandum of appeal" are included in Article 1 of
Schedule I of the Court Fees Act as attracting ad valorem court-fees. The express mention of one
implies the exclusion of the other (expressio unius, est exclusio alterius). The Legislature
intended to exclude from the purview of section 19 of the Family Courts Act the "memorandum
of appeal" and confined the concession with regard to payment of court-fees only on a "plaint".
A Family Court is a "Court of Justice", to which the Court Fees Act would apply in terms of
section 6 thereof.
The Family Court is a Civil Court and despite the exclusion of the Civil Procedure Code and the
Evidence Act in their application to proceedings before the Family Court it is a judicial Court in
every sense. The appeal was filed before the Additional District Judge, under section 14 of the
West Pakistan Family Courts Act, and the said Court is a Civil Court. Thus, a "memorandum of
appeal" to be filed before the District Court falls under Article 1 of Schedule I of the Court Act
and the court-fee in such cases is payable ad valorem on the subject-matter of the dispute.
1987 S C M R 684
Present: Muhammad Afzal Zullah and Javid Iqbal, JJ
Mst. KANIZ MAI--Petitioner
Versus
MUHAMMAD NAWAZ and another--Respondents
Civil Petition for Special Leave to Appeal No.944 of 1986, decided on 24th January, 1987.
(From the judgment/order of the Lahore High Court, Multan Bench, dated 28-4-1986 passed in Writ
Petition No.366 of 1986).
Constitution of Pakistan (1973)--
---Art. 185(3)--West Pakistan Family Courts Act (XXXV of 1964), Ss.5 & 1-4--West Pakistan Family Courts
Rules, 1965, Rr.3 & 13--Jurisdiction-Leave to appeal granted to examine inter alia the question of
jurisdiction of civil Court as to whether it could set aside an ex parte decree for dissolution of marriage
passed by a Family Court and in such behalf, effect of judgments of Supreme Court in 1983 S C M R 569
and P L D 1984 SC 95 could also be examined.
1985 S C M R 959
Present: Abdul Kadir Shaikh and Shafiur Rahman, JJ
Page 18 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
ALLAH BAKHSH--Petitioner
Versus
Mst. SHAMSHAD ZOHRA and others--Respondents
Civil Petition No.904 of 1984, decided on 9th October, 1984.
(Against the Judgment and Order of the Lahore High Court, Lahore, dated 4th June 1984 in Writ Petition
No.3762 of 1981).
West Pakistan Family Courts Act (XXXV of 1964)-
---Ss.14 & 17--Civil Procedure Code (V of 1908), Ss. 9 & 10--Appeal Single appeal filed against
consolidated judgment in two cases—Appeal dismissed on merits and on such technical ground--Order
impugned in Constitutional petition--Case remanded for decision afresh on ground that Courts below
had misdirected themselves in exercising jurisdiction possessed by them--Order of remand
challenged--Provisions of Civil Procedure Code other than Ss. 10 and 11 being inapplicable to
proceedings, technical objection of filing a single appeal against consolidated judgment, when it was
manifestly directed against decision in both, not to stand in way of adjudication--Trial Court to record its
own finding afresh after adverting to sources indicated in impugned judgment--Leave to appeal refused.
1985 S C M R 2079
Present: Aslam Riaz Hussain Nasim Hasan Shah and Shafiur Rahman, JJ
SIKANDER ALI KHAN –PETITONER
Versus
Mst. MUQARRAB JEHAN BEGUM AND OTHERS—Respondents
Civil Petition No.518 of 1984,decied on 30th April 1985
(On appeal from the judgment dated 21-03-1984of the Lahore High Court, Lahore in writ petition
No.1919 of 1982).
Page 19 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Constitution of Pakistan (1973)--
---Art. 185(3)--West Pakistan Family Courts Act (XXXV of 1964), S.5-Maintenance--Decree--Leave to
appeal granted to consider questions whether decree could be operative only from date of institution of
suit and not from date when wife started to live separately from husband and whether maintenance
allowance fixed by trial Court was inclusive of pocket allowance.
NASIM HASAN SHAH, J.--Submits firstly that the decree could be operative only from 30-4-1976,
namely, the date of the institution of the suit and not from 22-4-1974 when the wife started to live
separately from her husband; and secondly, that in any case' the maintenance allowance fixed by the
trial Court was Rs.100 (inclusive of Rs.50 per month as pocket allowance) and not Rs.150 as erroneously
assumed by the High Court.
These questions require further consideration. Leave to appeal is, accordingly, granted.
The interim stay order dated 5-3-1985 is modified to the extent that the petitioner shall pay the
maintenance allowance at the rate of Rs.100 from 30-4-1976 and this amount will be deposited with the
Assistant Registrar of this Court within two months who will deposit the same in a special account and
the amount will be payable to the respondent' as soon as she applies to this Court for its payment. In
case the petitioner fails to deposit the amount, as directed, the appeal shall be liable to dismissal for
non-prosecution.
1984 S C M R 1477
Present: Muhammad Afzal Zullah and M.S.H. Quraishi, JJ
MUHAMMAD IQBAL--Petitioner
Versus
Mst. SHAKILA KHATOON and another--Respondents
Civil Petition for Special Leave to Appeal No. 618-R of 1983, decided on 191h February, 1984.
(On appeal from the judgment of Peshawar High Court dated 19-7-1983 in Writ Petition No.37 of 1979)
.
Constitution of Pakistan (1973)--
---Art.185(3)--West Pakistan Family Courts Act (XXXV of 1964), S.14-Decree for dissolution of marriage
and for dower amount--District Court in appeal modifying decree in violation of intention and language
Page 20 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
of bar in S.t. of Act, 1964--Held, appellate judgment was rightly set aside by High Court--Leave to appeal
refused.
ORDER
MUHAMMAD AFZAL ZULLAH, J.-- This petition for leave to appeal is directed against the judgment
dated 19-7-1983 of the Peshawar High Court whereby, on a constitutional petition filed by the
respondent (wife! a two-fold decree for dissolution of her marriage with the petitioner, and also for
dower amount of Rs. 10,000 was restored.
The decree regarding dower was earlier set a side in appeal by the District Court on the ground that the
decree for dissolution should have peen on ground of Khulah in addition to grounds of non-maintenance
and cruelty. That being so the said modified decree, would oblige her to forgo the dower amount as
compensation for Khulah. The High Court however held that the decree for dissolution of marriage on
ground of non-maintenance and cruelty not being appeal able it could not have been modified by the
District Court in exercise of appellate jurisdiction so as to add the ground of Khulah.
Learned counsel for the petitioner has tried to defend the appellate judgd'e4t by the argument that the
appeal against decree for dower being competent, the District Court, notwithstanding the bar in section
14 of the Family Courts Act could allow the said appeal on any ground avail9ble to the petitioner.
We do not agree with him. The bar in section 14 is such that, in the circumstances of the case the
decree for dissolution of marriage could not have been modified (sic) in a collateral manner. The
intention as also the language of the bar in section 14 have been violated by the appellate judgment. It
was rightly set aside. This petition accordingly is dismissed.
1983 S C M R 398
Present : Aslam Riaz Hussain, Muhammad Afzal Zullah and M. S. H. Quraishi, JJ
MUHAMMAD JAMEEL-Petitioner
versus
Mst. SARWAR JEHAN AND 2 OTHERS-Respondents
Civil Petition No. K-223 of 1981, decided on 14th January, 1982.
Page 21 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(On appeal from the order dated 27th September 1981 of the High Court of Sind, Karachi, passed in
Writ Petition No. S-24 of 1981).
West Pakistan Family Courts Act (XXXV of 1964)---
-- S. 14-Constitution of Pakistan (1973), Art. 185 (3)-Suit for dissolution of marriage decreed by appellate
Court on basis of non-maintenance for more than two years for no fault of wife Husband claiming
dissolution of marriage on basis of Khula'-Parties not at issue on question of Khula'-Reluctance of High
Court to interfere with decree being not inconsistent with policy of law which confers a finality on such
decree, interference not justified in circumstances.
1982 S C M R 1223
Present : Zaffar Hussain Mirza and M. S. H. Qureshi, JJ
MUHAMMAD DEEN MALIK AND ANOTHER-Petitioners
Versus
IIND ADDITIONAL DISTRICT JUDGE, KARACHI AND OTHERS-Respondents
Civil Petition for Special Leave to Appeal No. K-235 of 1981, decided on 13th December, 1981.
(On appeal from the judgment and order of the High Court of Sind, Karachi, dated 28-10-1981,
passed in Constitutional Petition No. 19 of 1981).
(a) West Pakistan Family Courts Act (XXXV of 1964)----
---- Ss. 5 & 14-Jurisdiction-Appeal-Family Courts possess exclusive jurisdiction in matters
specified in Schedule to Family Courts Act, 1964 and custody of children and guardianship
included in such Schedule Section 14 of Act providing for appeal against decision given or
decree passed by Family Court to High Court in case of Family Court being presided over by a
District Judge an Additional District Judge, or a person of such rank and to District Court in all
other cases, forum of appeal in cases, in hand, held, clearly spelt out as High Court.-[Appeal
(civil)-Jurisdiction].
(b) Guardians and Wards Act (VIII of 1890)----
Page 22 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
----- S 47 [as amended by Guardians and Wards (Amendment) Ordinance (XI of 1980)] and
West Pakistan Family Courts Act (XXXV of 1964), Ss. 5, 14 & 25-Interpretation of
statutes-Leave to appeal-Contention that if S. 47 of Guardians and Wards Act be taken to have
been made dormant in view of combined effect of Ss. 5, 14 & 25 of Family Courts Act, 1964 and
right of appeal regulated by S. 14 of such Act, Amending Ordinance (XI of 1980) would be
rendered totally redundant and redundancy cannot be imputed to Legislature and further if effect
be given to Amending Ordinance it will have to be held that right of appeal would be regulated
by S. 47 and consequently no appeals lie from an order passed by Family Court under S. 12 of
Guardians and Wards Act, 1890-Submissions, held, raise serious question of law requiring
re-examination of view adopted in case reported as P L D 1981 S C 454, hence, leave to appeal
granted.-[Interpretation of statutes].
P L D 1983 Supreme Court 169
Present : Muhammad Afzal Zullah and Shafiur Rahman, JJ
DR. AKHLAQ AHMAD-Appellant
versus
Mst. KISHWAR SULTANA AND OTHERS-Respondents
Civil Petition for Leave to Appeal No. 114 of 1982, heard on 8th February, 1983.
(Against the order and judgment dated 17-11-1981 of the Lahore High Court in 1. C. A. No. 321 of 1981).
(a) West Pakistan Family Courts Act (XXXV of 1964)-
-- S. 7-Dissolution of marriage-Contention that whatever happens subsequent to institution of
proceedings in Family Court cannot all be made basis for granting or refusing relief-Held, cannot be
advanced as a proposition of law-Conduct of parties, during proceedings particularly during
reconciliation efforts by Judge-To be taken note of and given effect to-Question whether parties, if
made to live, as husband and wife, would live within limits of God-Held, to receive full and continuous
attention of Judge who has to attend to every factor which may contribute or detract from it.
Page 23 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(b) West Pakistan Family Courts Act (XXXV of 1964)-
-- S. 7--Dissolution of marriage-Khula'-Errant wife cannot make her own conduct basis for dissolution of
marriage even by Khula` in manner to aggravate and license evil-Facts of case not showing that wife was
adjudged to be in error to give impression that she benefited from her own misdeeds-Judge, Family
Court, on objective appraisal of evidence, recording a finding in favour of husband but with regard to
question of Khula` holding in favour of wife-Such conclusion being in domain of discretion exercised by
authority having advantage of observing closely over a long period of proceedings behaviour and
conduct of parties towards each other-Held, not open to interference unless discretion manifestly
exercised arbitrarily and capriciously Conclusion by Family Court that parties cannot remain within limits
of God and dissolution of marriage by Khula` must take place-Inquiry into terms on which such
dissolution shall take place-Held, does not affect conclusion but only creates civil liabilities with regard
to benefits to be returned by wife to husband and does not affect dissolution itself.
Moonshee Buzul-ul-Raheem v. Luteefutoon 1Visa 8 Moo;'s Ind. ,App. 379 ref.,
(c) Constitution of Pakistan (1973)-
-- Art. 185(3)-West Pakistan Family Courts Act (XXXV of 1960, S. 7-Dissolution of marriage-Contention
that conduct of proceedings by Judge, Family Court was not fair and honest particularly writing an
elaborate judgment in an hour or so-Held, cannot be collaterally raised in Constitutional petition-Mere
timing and sequence of order sheet-Held, not a sure guide in drawing conclusions concerning fairness
and honesty of proceedings and maintenance of record thereof.
P L D 2002 Supreme Court 273
Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ
MUKHTAR AHMED ---Appellant
Versus
ANSA NAHEED and 2 others---Respondents
Civil Appeal No.583 of 1995, decided on 29th October, 2001.
Page 24 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(On appeal from the judgment dated 27-10-1993 of Lahore High Court in Writ Petition No.
1660 of 1992).
(a) West Pakistan Family Courts Act (XXXV of 1964)-----
----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Where marriage
was dissolved on various grounds including Khula', then wife would be entitled to recover dower
and dowry, but where it was dissolved solely on the ground of Khula' then her offer made for
getting marriage dissolved on Khula' would be examined---Wife tiled suit for dissolution of
marriage on various grounds viz. cruelty, non-payment of maintenance, non-performance of
marital obligations, impotency of husband and Khula'---Wife also filed suit for recovery of
dowry amount---Family Court decreed the suit for dissolution of marriage on all such grounds
holding that wife in lieu of Khula' would not be entitled to claim dower, dowry and maintenance
---Husband, in view of such findings, filed in latter suit an application for rejection of the
plaint---Wife filed application for clarification of judgment and decree, but it was dismissed by
Family Court and its order was maintained by the Appellate Court---High Court accepted
Constitutional petition tiled by wife and set aside the conditions regarding relinquishment of
dower, dowry and maintenance---Contention of husband was that High Court in exercise of
Constitutional jurisdiction could not change judgment and decree passed by Family Court,
especially when the wife had not challenged same and her petition for clarification had been
dismissed by Courts below---Held': wife in her deposition recorded before Family Court had
forgiven only her claim for remaining amount of dower in lieu of Khula' and had not given up
her claim of dowry---Marriage was dissolved on various 'rounds including Khula'---Where
marriage was dissolved on other grounds also, then wife would be entitled to recover amount of
dower and dowry, but where it was dissolved solely on ground of Khula', then situation would be
different and it would be examined keeping in view the offer she had made for getting marriage
dissolved on Khula'--Findings of High Court were correct and not open to any exception---
Supreme Court dismissed the appeal of husband while making it clear that suit tiled by wife for
recovery of dowry amount would be decided on its own merits
1998 S C M R 954
[Supreme Court of Pakistan]
Present: Ajmal Mian and Fazal Ilahi Khan, JJ
ABDULLAH---Petitioner
versus
Mst. ABIDA and another---Respondents
Page 25 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Civil Petition for Leave to Appeal No.379 of 1995, decided on 15th November, 1995.
(On appeal from the judgment dated 24-4-1995 of. the Lahore High Court, Multan Bench,
Multan, passed in Writ Petition No.2816 of 1993).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)=--Dissolution of marriage on
ground of Khula'---Finding rendered by Family Court was maintained by High Court in
dismissing husband's Constitutional petition against judgment and decree of Family Court---
Validity---Petition for leave to appeal was barred by time by 35 days and ground for delay, that
petitioner had undergone eye operation seemed to be not sufficient for operation was carried out
prior to expiry of period of limitation for filing petition for leave to appeal--On merits too, there
seemed to be no infirmity in reasoning of High Court in upholding finding of Trial Court---High
Court was justified in not pressing into service its Constitutional jurisdiction involving
determination of question of fact which was competently concluded by Family Court, inter alia,
on basis of admission of petitioner in cross-examination---Petition for leave to appeal was
without merits---Leave to appeal was refused in circumstances
1997SCMR1601
[Supreme Court of Pakistan]
Present: Abdul Hafeez Memon, Mukhtar Ahmad Junejo and Raja Afrasiab Khan, JJ
SALEEM JAHANGIR---Petitioner
versus
Mst. KHATM-UN-NISA---Respondent
Civil Petition for Leave to Appeal No.45-Q of 1996, decided on 22nd May, 1997.
(On appeal from the judgment of the Balochistan High Court dated 22-4-1996 passed in Family
Appeal No.l of 1995 and Cross Objection No.2 of 1995).
West Pakistan Family Courts Act (XXXV of 1964)---
-.---S.5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)---Wife's suit for dissolution of
marriage on ground of Khula' decreed by High Court---High Court while reversing finding of
Trial Court noted that Court below had not taken note of its own observations made in its order,
regarding conduct of wife, in which she had explained extreme hatred---Prolonged litigation
between parties, which was full of allegations and counter-allegations against each other, itself as
a factor was sufficient to hold that wife had developed intense dislike towards her husband and it
was not possible for her to lead happy matrimonial life with him---Judgment of High Court
Page 26 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
clearly indicated that it proceeded on correct principles of law and had also correctly appreciated
evidence on record in reaching findings and acted rightly in setting aside judgment and decree
passed by Family Court---Judgment of High Court would warrant no interference---Leave to
appeal was refused in circumstances.
1996 S C M R 411
[Supreme Court of Pakistan]
Present: Saad Saood Jan and Muhammad Ilyas, JJ
AMANULLAH---Petitioner
versus
DISTRICT JUDGE, GUJRANWALA and 2 others---Respondents
Civil Petition for Leave to Appeal No. 858-L of 1994, decided on 31st October, 1995.
(From the judgment/order of Lahore High Court, Lahore, dated 4-5-1994 in Writ Petition No.
7160 of 1992).
Page 27 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)---Dissolution of marriage on
ground of Khula' ---Courts below dismissed plaintiff's (wife's) suit for dissolution of marriage
and decreed that of husband for restitution of conjugal rights---High Court decreed plaintiff's suit
on ground of Khula'--Validity---Wife had admittedly made complaint to Senior Superintendent
of Police that her husband had beaten her---Wife was sent to Darul Aman by way of protection
from her husband---When wife in such circumstances had stated that she had developed hatred
towards her husband, her assertion could not be rejected summarily---Relationship between
husband and wife being of very intimate nature, it would be too embarrassing for either of them
to disclose to Court what had transpired between them in privacy of their home---Such things
could, thus, hardly be any standard for assessing substance in wife's assertion that she had
developed hatred for her husband---Order of High Court in dissolving marriage on ground of
Khula' was thus, unexceptionable---Leave to appeal was refused in circumstances
Page 28 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
1994 S C M R 1124
[Supreme Court of Pakistan]
Present: Saeeduzzaman Siddiqui and Wali Muhammad Khan, JJ
MUHAMMAD SHER ---Petitioner
versus
Mst. SALMA BIBI and another---Respondents
Civil Petition No. 213 of 1992, decided on 2nd September, 1992.
(From the judgment/order dated 20-4-1992 passed by Lahore High Court, Rawalpindi Bench,
Rawalpindi, in W.P. No. 194/90).
West Pakistan Family Courts Act (XXXV of 1964)--
Page 29 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
----S. 5 & Sched: --Constitution of Pakistan (1973), Art. 185 (3)---Dissolution of marriage on
Khula'---Petitioner's claim for return of benefits---Petitioner raising a new point which he had not
raised before Court below ---Effect-- Petitioner could not be allowed to raise a point for the first
time before Supreme Court for which no foundation was laid at earlier stage---High Court had
categorically stated that Trial Court while dissolving marriage of petitioner with respondent had
directed that latter would not be entitled to recover the specified dower amount---High Court's
such observation clearly showed that respondent had disclaimed right of dower while praying for
dissolution of marriage by way of Khula'---There being no illegality in the judgment of High
Court, no interference was warranted therewith---Leave to appeal was refused in circumstances.
1989 S C M R 173
Present: Muhammad Afzal Zullah, Javid 1qbal, and Saad Saood Jan, JJ
JAN MUHAMMAD--Petitioner
versus
JUDGE FAMILY COURT and others--Respondents
Civil Petition No. 1030 of 1985, decided on 9th May, 1988.
(From the order dated 28-9-1985 of the Lahore High Court in W.P. No. 663/85).
Muslim Family Laws Ordinance (VIII of 1961)--
---S. 7-- West Pakistan Family Courts Act (XXXV of 1964), S. 5k& Sched.-Constitution of
Pakistan (1973), Art. 185(3)--Dissolution of marriage on ground of Khula' and
non-maintenance--Family Court decreeing suit of wife for dissolution of marriage on ground of
Khula with observation that she was not entitled to get back articles of dowry and that she should
surrender those articles as Zar-e-Khula'--Husband praying for return of benefits from wife which
she received from him--Sufficient material available on record to support decree of Family
Court--Husband in his statement before Family Court, made no claim that he had given any
property, movable or immovable etc. to his wife--Husband's Constitutional petition was
dismissed by High Court with observation that there was sufficient evidence to grant a decree of
dissolution even on ground of non-maintenance--Leave to appeal refused.
1988 S C M R 1288
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ
FALAK SHER--Petitioner
Page 30 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
versus
Mst. MEHTAB BIB.I and another--Respondents
Civil Petition for Special Leave to Appeal No.429 of .198;;, decided on 15th May, 1988.
(On appeal from the judgment dated 5-3-1985 of the Lahore High Court, Lahore, passed in Writ
Petition No.894 of 1985).
West Pakistan Family Courts Act (XXXV of 1964)-
--S.5--Constitution of Pakistan (1973), Art .185(3)--Petitioner trying to prevent dissolution of
marriage between him and his wife--Wife found entitled to Khula' decree--Finding being
unexceptionable and order of dissolution of marriage not suffering from any- infirmity, legal or
otherwise, leave to appeal refused.
1988 S C M R 1286
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ
MUHAMMAD SAN AULLAH—Petitioner
versus
MUHANIMAD ILYAS and others--Respondents
Civil Petition No.472 of 1987, decided on 11th May, 1988.
(From the judgment and order dated 23-5-1987 of the Lahore High Court in W.P. No.2593/85)
West Pakistan Family Courts Act (XXXV of 1964)--
---S.5—Constitution of Pakistan (1973), Arts .185(3)& 99- Constitutional jurisdiction--Exercise
of--Finding of fact—Interference with--Dissolution of marriage by Khula'--Return of dowry—
Appellate Court recording finding of fact after reappraisal of evidence—High Court declining to
interfere in its Constitutional jurisdiction--;No basis for taking a different view existing, leave to
appeal refused.
1988 S C M R 2099
Present: Muhammad Afzal Zullah, Javid Iqba1 and Saad Saood Jan, JJ
MUHAMMAD PARVEZ--Petitioner
Page 31 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
versus
MUHAMMAD YUSUF and another--Respondents
Civil Petition for Special Leave to Appeal No.602 of 1984, decided on 8th May, 1988.
(On appeal from the order dated 24-3-1984 of the Lahore High Court, Lahore, passed in Writ
Petition No.1147 of 1984).
West Pakistan Family Courts Act (XXXV of 1964)--
---S.5 it Sched.--Constitution of Pakistan (1973), Arts.185(3) & 199-Dissolution of marriage-- Khula'
decree passed by Trial Court challenged by husband on ground that there was no specific finding that
parties would not be able to keep limits of Allah which was an essential ingredient of such a
decree--Finding of fact on issue reached by Trial Court affirmed by High Court--Discussion by Trial Court
showing that it was fully conversant with rule that Khula' decree could be granted when it was found
that parties would not be able to keep limits of Allah--High Court also examined arguments of counsel
for petitioner regarding Khula' from that angle and came to the same conclusion as reached by the Trial
Court--Held, no interference was called for with findings of fact challenged by petitioner in Constitutional
jurisdiction of High Court and they were unexceptionable whether looked at from point of legality
or propriety--Leave to appeal refused.
1987 S C M R 699
Present: Muhammad Afzal Zullah, Mian Burhanuddin Khan and
Saad Saood Jan, JJ
MUHAMMAD SAEED--Petitioner
Versus
Mst. KHALIDA SHAHEEN and others--Respondents
Civil Petition for Special Leave to Appeal No. 22 of 1987, decided on
2nd February, 1987.
(On appeal from order of the Lahore High Court, Lahore dated
30-11-1986, in Writ Petition No.4244 of 1986) .
Constitution of Pakistan (1973)—
Page 32 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
--Arts. 185(3) & 199--West Pakistan Family Courts Act (XXXV of
1964), S.12--Dissolution of marriage on ground of Khula'--Prompt
dower-Petitioner neither in his written statement nor in his statement
before Family Court taking up position that if plea of Khula' was
allowed, amount of prompt dower should be refunded to him--Such
claim, held, could not be pressed by petitioner for first time in
constitutional jurisdiction in High Court--Petition for leave to appeal
dismissed.
(b) Muslim Family Laws Ordinance (VIII of 1961)--
--- S. 8--West Pakistan Family Courts Act (XXXV of 1964), Ss. 7 &
14--Constitution of Pakistan (1973), Art. 199-- Dissolution of marriage
on ground of Khula--Prayer for- -Constitutional jurisdiction, exercise
of--Concurrent finding of Family Court and Appellate Court below
refusing dissolution of marriage of petitioner wife on ground of Khula,
ignoring statement of wife that she would relinquish her dower and
claim for maintenance in lieu of grant of Khula, held, was without
lawful authority--High Court in exercise of constitutional jurisdiction
set aside concurrent order of Courts below and remanded case to Trial
Court to decide afresh after affording parties opportunity to adduce
evidence.
MUHAMMAD FAISAL KHAN---Petitioner
Versus
Mst. SADIA and another---Respondents
Writ Petition No.1405 of 2011, decided on 10th October, 2012.
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S.10---Pre-trial proceedings---Compatibility with Muslim Law---Scope---Provision of S.10 of West
Pakistan Family Courts Act, 1964 were fully in consonance with Muslim Law.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched. & S.10---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Dissolution of marriage
on ground of Khula'---Scope---Consent of husband for such dissolution would not be necessary---Judge,
in case of husband's dis-agreement to dissolve marriage, could determine question as to whether
spouses, if they continued living together, could observe limits of God or not---Duty of Judge to make
genuine attempt for reconciliation between spouses---Judge in case of failure of reconciliation efforts
could pass forthwith decree for dissolution of marriage---Where Judge while passing such decree,
observed that wife was not willing to live with husband without any fault of his, then Judge would have
no option but to restore to husband dower (Haq-e-Mehr) received by wife at time of marriage---Wife
seeking divorce for having developed extreme hatred and disliking for her husband would have to
restore the consideration of marriage (dower) to husband---Where in view of Judge husband by his
arrogant, cruel and obnoxious nature or behavior compelled wife to seek "Khula", then she
would be entitled to all due benefits along with dissolution of marriage---Principles and
illustration.
P L D 2013 Lahore 88
Before Muhammad Farrukh Irfan Khan, J
Major QAMAR ZAMAN QADIR---Petitioner
Versus
Page 2 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
JUDGE FAMILY COURT, JEHLUM and others---Respondents
Writ Petition No.1982 of 2011, decided on 19th October, 2012.
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Scehd.---Muslim Family Laws Ordinance (VIII of 1961), S.7---Constitution of Pakistan, Art.199---
Constitutional petition---Dissolution of marriage on the basis of Khula'---Scope---Khula' obtained from
wife under coercion---Effect---Suit for dissolution of marriage on basis of Khula' was decreed when
husband in his statement stated that he would have no objection to such decree---Special attorney
appeared on behalf of wife and she did not tender appearance in person and no pre-trial reconciliation
took place--Wife made statement before High Court that Khula' was not sought by her on her own
freewill and was procured by appointment of special attorney by her father under coercion---Contention
of the husband (petitioner) was that said decree was illegal and of no binding effect---Validity---Pivotal
question to be determined was as to what was the effect of decree of dissolution of marriage and
whether parties could rejoin as husband and wife after pronouncement of Khula' by court---Khula' was
repudiation with consent at instance of wife in which she agreed to give consideration to husband for
release from marital bond and it had the effect of "talaq bayen" (single divorce)---Pronouncement of
Khula' by court would amount to single divorce and husband would be at liberty to marry the wife again
after solemnization of nikah without intervention of a third person---Section 7(6) of the Muslim Family
Laws Ordinance, 1961 did not debar wife whose marriage had been terminated by divorce under S.7 of
the said Ordinance from remarrying the same husband without intervening marriage with a third
person---High Court set aside orders of courts below---Constitutional petition was allowed, accordingly.
2 0 1 0 S C MR 1403
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Ghulam Rabbani,
JJ
TAYYABA YUNUS---Petitioner
Versus
MUHAMMAD EHSAN and others---Respondents
Civil Petition No. 71 of 2010, decided on 12th February, 2010.
(On appeal from the judgment dated 19-11-2009 in W.P. No.297 of 2009 passed by the
Page 3 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Peshawar High Court, Abbottabad Bench).
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched & S. 14---Suit for dissolution of marriage on ground of Khula' and recovery
of dower amount---Family Court granted decree for dissolution of marriage, but refused to
grant relief of dower---Decree for dower granted by Appellate Court was set aside by High
Court on the ground that findings of Family Court for not granting dower could not be
reversed without disturbing ground of Khula', which would tantamount to an appeal against
dissolution, which was barred by law---Validity---Bar contained in S. 14(2)(b) of West Pakistan
Family Courts Act, 1964 would come in way only when decree passed for dower did not
exceed Rs.30,000---Family Court, in the present case, had not granted any amount of dower to
plaintiff, thus, she was not precluded from preferring an appeal for an appropriat e relief of
dower, which being a condition sine qua non for a valid marriage---Appeal was a
continuity of original proceedings of a suit---Question needing resolution by Appellate Court
would be whether plaintiff was entitled to dower amount on basis of material available on
record---Bar contained in S. 14(2) of West Pakistan Family Courts Act, 1964 would not
come in way of plaintiff---Supreme Court set aside impugned judgment and remanded case
to High Court for its fresh decision on merits after hearing both parties.
2008 S C M R 186
[Supreme Court of Pakistan]
Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ
MUHAMMAD BASHIR ALI SIDDIQUI----Petitioner
Versus
Mst. SARWAR JAHAN BEGUM and another----Respondents
Civil Petition No.413-K of 2006, decided on 2nd October, 2006.
(On appeal from judgment, dated 19-5-2005 passed by High Court of Sindh, Circuit Bench at
Hyderabad in C.P. No.S-179 of 2005).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art.185(3)---Dissolution of marriage on
ground of Khula---Parties were married in the year 1970---Nikahnama had provided that in case
respondent/wife obtained Khula, she would have to pay a sum of Rs.2,50,000 to the
petitioner/husband; and if the petitioner would divorce the respondent, he would pay a sum of
Rs.2,50,000 to her---Suit filed by respondent (wife) for obtaining dissolution of marriage on
ground of Khula was finally decreed---Petitioner (husband) had contended that Family Judge as
well as High Court had failed to take into account the Nikahnama-Contention of petitioner was
Page 4 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
that it was incumbent upon Family Court to award Rs.2,50,000 while granting decree by way of
Khula in favour of petitioner---Contention of petitioner was absolutely frivolous as it was against
the basic principle of law which required the parties to remain in marital tie in a peaceful and
tranquil atmosphere and were not required to be bound by stringent conditions to remain in
marriage bond.
2006 S C M R 1944
[Supreme Court of Pakistan]
Present: Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ
Dr. NOSHEEN QAMAR----Petitioner
Versus
SHAH ZAMAN KHATTAK and another----Respondents
Civil Petition No.132-P of 2003, decided on 30th May, 2006.
(On appeal from the judgment, dated 25-11-2002 passed by High Court of Peshawar in Writ
Petition No.1321 of 2000).
West Pakistan Family Courts Act (XXXV of 1964)--
----S. 5---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Civil Procedure Code (V
of 1908), O.XLI, R.22---Constitution of Pakistan (1973), Art.185(3)---Divorce---Recovery of
dower---Plea of cruelty---Non-filing of cross objections---Leave to appeal was granted by
Supreme Court to consider; whether finding of Family Court that issue of cruelty was not
proved, was not in accordance with the evidence and reasoning of Family Court itself; whether
in the circumstances of the case, could it not be said that Family Court had not dissolved the
marriage on the ground of Khula: whether High Court did not err in law by observing that wife
had not challenged the findings on issue of cruelty because decree was in her favour which she
could. under O.XLI, R.22 C.P.C. defend even on the ground decided against her; whether the
principle that if wife had been compelled by ill-treatment of husband to seek for divorce, it was
unlawful for him to take indemnity and if man had forced the woman to accept Khula, a Talaq
would take place without any liability to pay the indemnity; whether dower was not a benefit
arising out of marriage to be restored to husband in case of dissolution of marriage on the
ground of Khula; whether in absence of specific demand by husband or indemnity in the form
of waiver of cash dower of Rs.200,000, High Court could grant husband the indemnity;
whether rule laid by High Court in the cases titled Mukhtar Ahmed v. Mst. Ume Kalsoom and
another, reported as PLD 1975 Lah. 805 and Noor Muhammad v. Judge, Family Court.
Page 5 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Burewala, District Vehari and another, reported as PLD 1989 Lah. 31, did not lay down the
correct law; and whether decree of cash dower could be collaterally impeached before High
Court during pendency of appeal before Lower Appellate Court.
2006 S C M R 100
[Supreme Court of Pakistan]
Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ
ABID HUSSAIN---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, ALIPUR, DISTRICT MUZAFFARGARH and
another---Respondents
Civil Petition No.3444-L of 2004, decided on 18th October, 2005.
(On appeal from the judgment, dated 1-11-2004 passed by the Lahore High Court, Multan
Bench, in Writ Petition No.5915 of 2004).
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 14---Right of appeal, exercise of---Principles---Dissolution of marriage---Object behind
non-provision of appeal in case of dissolution of marriage was to protect women, an under
privileged and generally oppressed section of the society, from prolonged and costly litigation, as
such it aimed to put a clog on the right of husband---Improper to construe S.14 (2)(a) of West
Pakistan Family Courts Act, 1964, in a way so as to deprive a wife from appealing from the
decree refusing her relief on the grounds which according to Family Court had not been proved
but granting decree of dissolution on some other ground---Such interpretation would be in
violation of wholesome provision of appeal contained in S.14 (1) of West Pakistan Family
Courts Act, 1964, and to defeat the very object of introducing the Family Courts Act, 1964.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
---Ss. 5 & 14---Constitution of Pakistan (1973), Art.185(3)--Dissolution of marriage---Grounds
other than Khula---Wife filed suit for dissolution of marriage on the ground of Khula and other
grounds of habitual cruelty and non-payment of maintenance---Family Court decreed the suit on
the basis of Khula and directed the wife to return the house which was given to her as dower at
the time of her marriage---Appellate Court allowed appeal of wife and converted dissolution of
marriage on the basis of cruelty, whereby she was not obliged to return the house---
Page 6 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Constitutional petition filed by husband before the High Court, against the judgment and decree
passed by Appellate Court, was dismissed---Plea raised by husband was that the appeal filed by
wife before Appellate Court was not competent as marriage was dissolved on the ground of
Khula---Validity---As Family Court dismissed the suit of wife or did not decree the suit on the
grounds of cruelty and non-maintenance, such wife could file appeal under S.14 (1) of West
Pakistan Family Courts Act, 1964---Appeal under 5.14(1) of West Pakistan Family Courts Act,
1964, could be filed not only from the decree passed by Family Court but also from the `decision
given'---Appeal of wife was maintainable against the decision given by Family Court that wife
was not entitled to dissolution of marriage on the grounds of cruelty and / or non-maintenance---
Both the Appellate Court as well as High Court had rightly evaluated the evidence to conclude
that wife was entitled to dissolution of marriage on the ground of cruelty, which ground had been
established---Supreme Court declined to interfere in the judgment and decree passed by the
Courts below---Leave to appeal was refused.
P L D 2005 Supreme Court 293
Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ
Mst. NASEEM AKHTAR---Petitioner
Versus
MUHAMMAD RAFIQUE and others---Respondents
Civil Petition No.2470 of 2002, decided on 3rd December, 2004.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated
31-10-2002 passed in W.P. No.3183 of 2002).
(a) Muslim Family Laws Ordinance (VIII of 1961)---
---S.8---West Pakistan Family Courts Act (XXXV of 1964), S.5--Dissolution of marriage---Khula---Emotion
of hatred---Determination--No yardstick can be fixed to define or determine factum of hatred--Emotion
of hatred can be inferred on the basis of circumstances of each case specially from the statement of wife
recorded by Family Court--Emotion of love and hatred cannot be adjudged on rational basis---Only
aspect which requires consideration in such cases would be as to whether husband and wife can live
together in order to perform their matrimonial obligations and not the solid proof qua hatred or
aversion.
Amanullah v. District Judge, Jaranwala 1996 SCMR 411 rel.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
Page 7 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
----S.5---Muslim Family Laws Ordinance (VIII of 1961), S.8--Dissolution of marriage---Hatred towards
husband---Wife filed suit for dissolution of marriage but Family Court dismissed the same on the ground
that she could not substantiate the alleged hatred and aversion against her husband---Judgment and
decree passed by Family Court was maintained by Lower Appellate Court as well as by High Court---
Validity---Hatred and aversion could neither be prescribed nor confined within the limited sphere and no
mechanism had been evolved to express `hatred or aversion' precisely and in a definite manner---Suit
for dissolution of marriage was filed by wife on 6.12.2000, which itself was demonstrative of the fact
that she did not want to live with her husband which indicated the degree of hatred and aversion---Wife
personally submitted to Supreme Court that the Court might hang her and whatever might be the
circumstances, she was not prepared to live with her husband; as such the same was hatred or aversion
and nothing else--Judgments and decrees passed by the Courts below were set aside and petition for
leave to appeal was converted into appeal---Suit for dissolution of marriage was decreed in favour of the
wife---Appeal was allowed.
P L D 2005 Supreme Court 293
Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ
Mst. NASEEM AKHTAR---Petitioner
Versus
MUHAMMAD RAFIQUE and others---Respondents
Civil Petition No.2470 of 2002, decided on 3rd December, 2004.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated
31-10-2002 passed in W.P. No.3183 of 2002).
b) West Pakistan Family Courts Act (XXXV of 1964)---
----S.5---Muslim Family Laws Ordinance (VIII of 1961), S.8--Dissolution of marriage---Hatred
towards husband---Wife filed suit for dissolution of marriage but Family Court dismissed the
same on the ground that she could not substantiate the alleged hatred and aversion against her
husband---Judgment and decree passed by Family Court was maintained by Lower Appellate
Court as well as by High Court--Validity---Hatred and aversion could neither be prescribed nor
confined within the limited sphere and no mechanism had been evolved to express `hatred or
aversion' precisely and in a definite manner---Suit for dissolution of marriage was filed by wife
on 6.12.2000, which itself was demonstrative of the fact that she did not want to live with her
husband which indicated the degree of hatred and aversion---Wife personally submitted to
Supreme Court that the Court might hang her and whatever might be the circumstances, she was
not prepared to live with her husband; as such the same was hatred or aversion and nothing
else--Judgments and decrees passed by the Courts below were set aside and petition for leave to
Page 8 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
appeal was converted into appeal---Suit for dissolution of marriage was decreed in favour of the
wife---Appeal was allowed.
2003 S C M R 1325
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
ASHIQ HUSSAIN SAEED---Petitioner
Versus
Mst. FARZANA CHAUDHRY and others---Respondents
Civil Petition for Leave to Appeal No.2450/L of 2001, decided on 19th June, 2002.
(On appeal from the judgment dated 9-5-2001 of the Lahore High Court, Lahore, passed in Writ
Petition No.7615 of 2001).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5---West Pakistan Family Courts Rules, 1965, R.13---Constitution of Pakistan (1973), Art.
185(3)---Dissolution of marriage---Ex parte decree, setting aside of---Marriage after decree---
Marriage was dissolved on the basis of ex parte decree in favour of lady who after passing period
of Iddat, contracted second marriage---As service was duly effected on the defendant/exhusband,
Family Court dismissed the application for setting aside the ex parte decree and the
order was maintained by Appellate Court as well as by High Court ---Validity--Lady, after
obtaining ex parte decree for dissolution of marriage, contracted second marriage after passing
the period of Iddat and from that wedlock a daughter was born---Defendant/ex-husband had the
knowledge of pendency of the proceedings for dissolution of marriage and he deliberately
avoided his appearance---When the lady had already contracted a second marriage and was
living with her second husband, and the defendant/ex-husband had failed to, substantiate his nonservice
in the suit for dissolution of marriage, Supreme Court did not find it a fit case for
interference---Leave to appeal was refused.
Page 9 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
2003 S C M R 1551
[Supreme Court of Pakistan]
Present Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ
ABDUL FATEH BABAR SANI---Petitioner
Versus
Mst. NAUREEN and another---Respondents
Civil Petition No.309-K of 2000, decided on 24th May, 2001.
West Pakistan Family Courts Act (XXXV of 1964)----
----S.5 & Sched.---Constitution of Pakistan (1973), Arts. 185(3) & 199--Constitutional petition---
Dissolution of marriage by Khula---Restitution of conjugal rights---Family Court decreed wife's
suit, but dismissed husband's suit---High Court upheld both judgments---Validity---Wife would
be entitled to have dissolution of marriage on ground of Khula`, if she had made out a case under
law---Husband would be entitled to restitution of conjugal rights, if he had proved his case for
such rights--Family Court after properly appreciating evidence on record had come to the
conclusion that wife was entitled to dissolution of marriage on ground of Khula, while husband
was not entitled to restitution of conjugal rights---Family Court and High Court had concurred
findings of fact, wherein no misreading or non-reading of evidence was found--Apprehension of
husband that life and future of his son would be spoiled, could not be considered in law to be a
val;d ground for reversing impugned judgments---Wife before Supreme Court refused to live
with husband on the ground his being cruel to her and that she would not live with him within
limits of God, thus, there was no need to give parties further chance for reconciliation---Supreme
Court dismissed petition and refused leave.
P L D 2002 Supreme Court 273
Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ
MUKHTAR AHMED ---Appellant
Versus
ANSA NAHEED and 2 others---Respondents
Civil Appeal No.583 of 1995, decided on 29th October, 2001.
Page 10 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(On appeal from the judgment dated 27-10-1993 of Lahore High Court in Writ Petition No. 1660 of
1992).
(a) West Pakistan Family Courts Act (XXXV of 1964)-----
----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Where marriage was
dissolved on various grounds including Khula', then wife would be entitled to recover dower and dowry,
but where it was dissolved solely on the ground of Khula' then her offer made for getting marriage
dissolved on Khula' would be examined---Wife tiled suit for dissolution of marriage on various grounds
viz. cruelty, non-payment of maintenance, non-performance of marital obligations, impotency of
husband and Khula'---Wife also filed suit for recovery of dowry amount---Family Court decreed the suit
for dissolution of marriage on all such grounds holding that wife in lieu of Khula' would not be entitled
to claim dower, dowry and maintenance ---Husband, in view of such findings, filed in latter suit an
application for rejection of the plaint---Wife filed application for clarification of judgment and decree,
but it was dismissed by Family Court and its order was maintained by the Appellate Court---High Court
accepted Constitutional petition tiled by wife and set aside the conditions regarding relinquishment of
dower, dowry and maintenance---Contention of husband was that High Court in exercise of
Constitutional jurisdiction could not change judgment and decree passed by Family Court, especially
when the wife had not challenged same and her petition for clarification had been dismissed by Courts
below---Held': wife in her deposition recorded before Family Court had forgiven only her claim for
remaining amount of dower in lieu of Khula' and had not given up her claim of dowry---Marriage was
dissolved on various 'rounds including Khula'---Where marriage was dissolved on other grounds also,
then wife would be entitled to recover amount of dower and dowry, but where it was dissolved solely
on ground of Khula', then situation would be different and it would be examined keeping in view the
offer she had made for getting marriage dissolved on Khula'--Findings of High Court were correct and
not open to any exception--Supreme Court dismissed the appeal of husband while making it clear that
suit tiled by wife for recovery of dowry amount would be decided on its own merits.
1998 S C M R 954
[Supreme Court of Pakistan]
Present: Ajmal Mian and Fazal Ilahi Khan, JJ
ABDULLAH---Petitioner
versus
Mst. ABIDA and another---Respondents
Page 11 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Civil Petition for Leave to Appeal No.379 of 1995, decided on 15th November, 1995.
(On appeal from the judgment dated 24-4-1995 of. the Lahore High Court, Multan Bench,
Multan, passed in Writ Petition No.2816 of 1993).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)=--Dissolution of marriage on
ground of Khula'---Finding rendered by Family Court was maintained by High Court in
dismissing husband's Constitutional petition against judgment and decree of Family Court---
Validity---Petition for leave to appeal was barred by time by 35 days and ground for delay,
that petitioner had undergone eye operation seemed to be not sufficient for operation was
carried out prior to expiry of period of limitation for filing petition for leave to appeal--On
merits too, there seemed to be no infirmity in reasoning of High Court in upholding finding
of Trial Court---High Court was justified in not pressing into service its Constitutional
jurisdiction involving determination of question of fact which was competently concluded by
Family Court, inter alia, on basis of admission of petitioner in cross-examination---Petition
for leave to appeal was without merits---Leave to appeal was refused in circumstances
1997 SCMR 1601
[Supreme Court of Pakistan]
Present: Abdul Hafeez Memon, Mukhtar Ahmad Junejo and Raja Afrasiab Khan, JJ
SALEEM JAHANGIR---Petitioner
versus
Mst. KHATM-UN-NISA---Respondent
Civil Petition for Leave to Appeal No.45-Q of 1996, decided on 22nd May, 1997.
(On appeal from the judgment of the Balochistan High Court dated 22-4-1996 passed in Family
Appeal No.l of 1995 and Cross Objection No.2 of 1995).
West Pakistan Family Courts Act (XXXV of 1964)---
-.---S.5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)---Wife's suit for dissolution of
marriage on ground of Khula' decreed by High Court---High Court while reversing finding of
Trial Court noted that Court below had not taken note of its own observations made in its order,
regarding conduct of wife, in which she had explained extreme hatred---Prolonged litigation
between parties, which was full of allegations and counter-allegations against each other, itself as
a factor was sufficient to hold that wife had developed intense dislike towards her husband and it
was not possible for her to lead happy matrimonial life with him---Judgment of High Court
clearly indicated that it proceeded on correct principles of law and had also correctly appreciated
Page 12 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
evidence on record in reaching findings and acted rightly in setting aside judgment and decree
passed by Family Court---Judgment of High Court would warrant no interference---Leave to
appeal was refused in circumstances.
1997 SCMR 1599
[Supreme Court of Pakistan]
Present: Abdul Hafeez Memon, Mukhtar Ahmand Junejo and Raja Afrasiab Khan, JJ
ABDUL AZIZ---Petitioner
versus
Mst. MALIKA and another---Respondents
Civil Petition for Leave to Appeal No.24-Q of 1996, decided on 23rd May, 1997.
(On appeal from the judgment of the Balochistan High Court dated 6-3-1996 passed in
Constitution Petition No.25 of 1996).
West Pakistan Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Constitution of Pakistan (1973), Arts. 185(3) & 199--Marriage was dissolved
by Family Court---High Court declined to interfere with judgment of Family
Court---Validity---Husband's main argument, that suit was decreed on basis of solitary statement
of wife whereas other evidence also ought to have been led by her to substantiate her plea and
that in suit for dissolution of marriage she ought to have asked for Khula' was of no
consequence, for proof would depend ' on quality, and not quantity of evidence--Courts below in
considering evidence adduced by wife were convinced that parties would not be able to lead
happy and harmonious life and decreed wife's suit for dissolution of marriage---Judgments of
Courts below and evidence on record would show that wife had sufficiently proved her
case---Family Court was, thus, well within its jurisdiction and was justified in decreeing
suit---High Court acted rightly in declining to interfere with judgment and decree of Trial Court
in exercise of its Constitutional . jurisdiction---Leave to appeal was refused in circumstances.
1994 SCMR 2019
[Supreme Court of Pakistan]
Present: Muhammad Rafiq Tarar and
Page 13 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Saeeduzzaman Siddiqui, JJ
ABDUL RIAZ---Petitioner v
versus
HAMIDAN BEGUM and 2 others---Respondents
Civil Petition for Leave to Appeal No. 431 of 1993, decided on 27th November, 1993.
(On appeal from the judgment dated 28-6-1993 passed by a learned Single Judge of the Lahore
High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No. 607/92).
West Pakistan Family Courts Act (XXXV of 1964)---
----S, 5 & Sched: -Constitution of Pakistan (1973), Art. 185(3)---Dissolution of marriage---Issues
relating to non-payment of maintenance for over two years; failure to perform marital obligations
for over three years; habitual cruelty were decided in favour of wife and decree was passed in her
favour on basis of Khula` alone subject to return of land to husband which was gifted to her by
her father-in-law---Decree, so granted was maintained by the Appellate Court---High Court in
Constitutional jurisdiction, however, while maintaining decree of dissolution of marriage set
aside condition attached to the decree for return of land to husband---Validity---High Court's
finding wherein it found that findings of Family Court on questions relating to non-payment of
maintenance, non-performance of marital obligations, habitual cruelty entitled wife to decree for
dissolution of marriage, it was wholly unnecessary for marriage to be dissolved on ground of
Khula ; such finding was well reasoned and did not suffer either from any infirmity or legal
error---Land in question, however, as per entries in "Nikahnama" was gifted to wife by her
father-in-law in lieu of services rendered by her and not in consideration for marriage--Leave to
appeal was refused in circumstances.
1994 S C M R 1124
[Supreme Court of Pakistan]
Present: Saeeduzzaman Siddiqui and Wali Muhammad Khan, JJ
MUHAMMAD SHER ---Petitioner
versus
Mst. SALMA BIBI and another---Respondents
Civil Petition No. 213 of 1992, decided on 2nd September, 1992.
Page 14 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(From the judgment/order dated 20-4-1992 passed by Lahore High Court, Rawalpindi Bench,
Rawalpindi, in W.P. No. 194/90).
West Pakistan Family Courts Act (XXXV of 1964)--
----S. 5 & Sched: --Constitution of Pakistan (1973), Art. 185 (3)---Dissolution of marriage on
Khula'---Petitioner's claim for return of benefits---Petitioner raising a new point which he had not
raised before Court below ---Effect-- Petitioner could not be allowed to raise a point for the first
time before Supreme Court for which no foundation was laid at earlier stage---High Court had
categorically stated that Trial Court while dissolving marriage of petitioner with respondent had
directed that latter would not be entitled to recover the specified dower amount---High Court's
such observation clearly showed that respondent had disclaimed right of dower while praying for
dissolution of marriage by way of Khula'---There being no illegality in the judgment of High
Court, no interference was warranted therewith---Leave to appeal was refused in circumstances.
1988 S C M R 2099
Present: Muhammad Afzal Zullah, Javid Iqba1 and Saad Saood Jan, JJ
MUHAMMAD PARVEZ--Petitioner
versus
MUHAMMAD YUSUF and another--Respondents
Civil Petition for Special Leave to Appeal No.602 of 1984, decided on 8th May, 1988.
(On appeal from the order dated 24-3-1984 of the Lahore High Court, Lahore, passed in
Writ Petition No.1147 of 1984).
West Pakistan Family Courts Act (XXXV of 1964)--
---S.5 it Sched.--Constitution of Pakistan (1973), Arts.185(3) & 199-Dissolution of marriage--
Khula' decree passed by Trial Court challenged by husband on ground that there was no specific
finding that parties would not be able to keep limits of Allah which was an essential ingredient of
such a decree--Finding of fact on issue reached by Trial Court affirmed by High
Court--Discussion by Trial Court showing that it was fully conversant with rule that Khula'
decree could be granted when it was found that parties would not be able to keep limits of
Allah--High Court also examined arguments of counsel for petitioner regarding Khula' from that
angle and came to the same conclusion as reached by the Trial Court--Held, no interference was
called for with findings of fact challenged by petitioner in Constitutional jurisdiction of High
Page 15 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Court and they were unexceptionable whether looked at from point of legality or
propriety--Leave to appeal refused.
1988 S C M R 1283(1)
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ
NIMAT ALI—Petitioner
versus
Mst. HAFEEZ BIBI and others--Respondents
Civil Petition No.831 of 1987, decided on 11th May, 1988.
(From the judgment dated 6-10,1987 passed by the Lahore High Court, Lahore in Writ Petition
No.1427/87).
West Pakistan Family Courts Act (XXXV of 1964)--
---S.5--Constitution of Pakistan (1973), Arts.185(3) & 199--Suit for dissolution of marriage--Ex
parte decree upheld in appeal and Constitutional petition--Order impugned--Even if for some
reason orders of Family Court and Appellate Court were set aside, circumstances of case were
such that Khula' would be granted to wife--No purpose, held, would be served by driving parties
to another round of litigation--Petition dismissed.
1988 S C M R 273
Present: Aslam Riaz Hussain and Javid Iqbal ,JJ
MUHAMMAD YOUNIS—Petitioner
versus
Mst. ZAKIA BIBI—Respondent
Civil Petition for Leave to Appeal No. 713 of 1987, decided on 22nd November, 1987.
Page 16 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(On appeal from the order of the Lahore High Court, Lahore dated 13th September, 1987 in
Writ Petition No. 3375 of 1987).
West Pakistan Family Courts Act (XXXV of 1964)--
---Ss.10 & 11--Constitution of Pakistan (1973), Art. 185(3)--Dissolution of marriage--Petitioner
challenging decree based on Khula in writ jurisdiction--Contentions raised that he was not
afforded opportunity for effecting compromise or to produce evidence in rebuttal of evidence
produced by respondent against him--Same grounds urged in Suprem3 Court but not established
from record which showed that sufficient opportunities were provided to petitioner for the
purpose but he failed to avail the same--Leave to appeal refused.
1987 S C M R 1161
Present: Nasim Hasan Shah and Saad Saood Jan, JJ
Mirza DAUD BAIG--Petitioner
Versus
ADDITIONAL DISTRICT JUDGE,
GUJRANWALA and others--Respondents
Civil Petition No. 1031 of 1986, decided on 27th April, 1987.
(On appeal from the judgment, dated 1-10-1986 of the Lahore High Court, Lahore in Writ
Petition No.2181 of 1986).
West Pakistan Family Courts Act (XXXV of 1964)--
---Ss. 14, 7 & 19--Court Fees Act (VII of 1870), Sched. I, Art.1 and Ss. 6, 7 &
19--AISpeal--Memorandum of appeal to be filed before District Court falls under Sched.1, Art.1,
Court Fees Act, 1870 and court-fee is payable ad valorem on the subject-matter of dispute.
Ordinarily a plaint in a suit for maintenance falls under section 7(i) and (ii) of the Court Fees Act
and attracts ad valorem court-fee on the amount claimed to be computed in accordance with
Article 1 of Schedule I of the Court Fees Act. But section 19 of the West Pakistan Family Courts
Act, 1964, alters the law contained in the Court Fees Act, 1870 to the extent that the court-fee to
be paid on any plaint filed before a Family Court shall be Rs.15 (in the Punjab). The concession
with regard to the reduction in the court-fee is restricted only to the "plaint", and not to a
"memorandum of appeal". The omission of "memorandum of appeal" in this section is
Page 17 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
significant because both a "plaint" and a "memorandum of appeal" are included in Article 1 of
Schedule I of the Court Fees Act as attracting ad valorem court-fees. The express mention of one
implies the exclusion of the other (expressio unius, est exclusio alterius). The Legislature
intended to exclude from the purview of section 19 of the Family Courts Act the "memorandum
of appeal" and confined the concession with regard to payment of court-fees only on a "plaint".
A Family Court is a "Court of Justice", to which the Court Fees Act would apply in terms of
section 6 thereof.
The Family Court is a Civil Court and despite the exclusion of the Civil Procedure Code and the
Evidence Act in their application to proceedings before the Family Court it is a judicial Court in
every sense. The appeal was filed before the Additional District Judge, under section 14 of the
West Pakistan Family Courts Act, and the said Court is a Civil Court. Thus, a "memorandum of
appeal" to be filed before the District Court falls under Article 1 of Schedule I of the Court Act
and the court-fee in such cases is payable ad valorem on the subject-matter of the dispute.
1987 S C M R 684
Present: Muhammad Afzal Zullah and Javid Iqbal, JJ
Mst. KANIZ MAI--Petitioner
Versus
MUHAMMAD NAWAZ and another--Respondents
Civil Petition for Special Leave to Appeal No.944 of 1986, decided on 24th January, 1987.
(From the judgment/order of the Lahore High Court, Multan Bench, dated 28-4-1986 passed in Writ
Petition No.366 of 1986).
Constitution of Pakistan (1973)--
---Art. 185(3)--West Pakistan Family Courts Act (XXXV of 1964), Ss.5 & 1-4--West Pakistan Family Courts
Rules, 1965, Rr.3 & 13--Jurisdiction-Leave to appeal granted to examine inter alia the question of
jurisdiction of civil Court as to whether it could set aside an ex parte decree for dissolution of marriage
passed by a Family Court and in such behalf, effect of judgments of Supreme Court in 1983 S C M R 569
and P L D 1984 SC 95 could also be examined.
1985 S C M R 959
Present: Abdul Kadir Shaikh and Shafiur Rahman, JJ
Page 18 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
ALLAH BAKHSH--Petitioner
Versus
Mst. SHAMSHAD ZOHRA and others--Respondents
Civil Petition No.904 of 1984, decided on 9th October, 1984.
(Against the Judgment and Order of the Lahore High Court, Lahore, dated 4th June 1984 in Writ Petition
No.3762 of 1981).
West Pakistan Family Courts Act (XXXV of 1964)-
---Ss.14 & 17--Civil Procedure Code (V of 1908), Ss. 9 & 10--Appeal Single appeal filed against
consolidated judgment in two cases—Appeal dismissed on merits and on such technical ground--Order
impugned in Constitutional petition--Case remanded for decision afresh on ground that Courts below
had misdirected themselves in exercising jurisdiction possessed by them--Order of remand
challenged--Provisions of Civil Procedure Code other than Ss. 10 and 11 being inapplicable to
proceedings, technical objection of filing a single appeal against consolidated judgment, when it was
manifestly directed against decision in both, not to stand in way of adjudication--Trial Court to record its
own finding afresh after adverting to sources indicated in impugned judgment--Leave to appeal refused.
1985 S C M R 2079
Present: Aslam Riaz Hussain Nasim Hasan Shah and Shafiur Rahman, JJ
SIKANDER ALI KHAN –PETITONER
Versus
Mst. MUQARRAB JEHAN BEGUM AND OTHERS—Respondents
Civil Petition No.518 of 1984,decied on 30th April 1985
(On appeal from the judgment dated 21-03-1984of the Lahore High Court, Lahore in writ petition
No.1919 of 1982).
Page 19 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Constitution of Pakistan (1973)--
---Art. 185(3)--West Pakistan Family Courts Act (XXXV of 1964), S.5-Maintenance--Decree--Leave to
appeal granted to consider questions whether decree could be operative only from date of institution of
suit and not from date when wife started to live separately from husband and whether maintenance
allowance fixed by trial Court was inclusive of pocket allowance.
NASIM HASAN SHAH, J.--Submits firstly that the decree could be operative only from 30-4-1976,
namely, the date of the institution of the suit and not from 22-4-1974 when the wife started to live
separately from her husband; and secondly, that in any case' the maintenance allowance fixed by the
trial Court was Rs.100 (inclusive of Rs.50 per month as pocket allowance) and not Rs.150 as erroneously
assumed by the High Court.
These questions require further consideration. Leave to appeal is, accordingly, granted.
The interim stay order dated 5-3-1985 is modified to the extent that the petitioner shall pay the
maintenance allowance at the rate of Rs.100 from 30-4-1976 and this amount will be deposited with the
Assistant Registrar of this Court within two months who will deposit the same in a special account and
the amount will be payable to the respondent' as soon as she applies to this Court for its payment. In
case the petitioner fails to deposit the amount, as directed, the appeal shall be liable to dismissal for
non-prosecution.
1984 S C M R 1477
Present: Muhammad Afzal Zullah and M.S.H. Quraishi, JJ
MUHAMMAD IQBAL--Petitioner
Versus
Mst. SHAKILA KHATOON and another--Respondents
Civil Petition for Special Leave to Appeal No. 618-R of 1983, decided on 191h February, 1984.
(On appeal from the judgment of Peshawar High Court dated 19-7-1983 in Writ Petition No.37 of 1979)
.
Constitution of Pakistan (1973)--
---Art.185(3)--West Pakistan Family Courts Act (XXXV of 1964), S.14-Decree for dissolution of marriage
and for dower amount--District Court in appeal modifying decree in violation of intention and language
Page 20 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
of bar in S.t. of Act, 1964--Held, appellate judgment was rightly set aside by High Court--Leave to appeal
refused.
ORDER
MUHAMMAD AFZAL ZULLAH, J.-- This petition for leave to appeal is directed against the judgment
dated 19-7-1983 of the Peshawar High Court whereby, on a constitutional petition filed by the
respondent (wife! a two-fold decree for dissolution of her marriage with the petitioner, and also for
dower amount of Rs. 10,000 was restored.
The decree regarding dower was earlier set a side in appeal by the District Court on the ground that the
decree for dissolution should have peen on ground of Khulah in addition to grounds of non-maintenance
and cruelty. That being so the said modified decree, would oblige her to forgo the dower amount as
compensation for Khulah. The High Court however held that the decree for dissolution of marriage on
ground of non-maintenance and cruelty not being appeal able it could not have been modified by the
District Court in exercise of appellate jurisdiction so as to add the ground of Khulah.
Learned counsel for the petitioner has tried to defend the appellate judgd'e4t by the argument that the
appeal against decree for dower being competent, the District Court, notwithstanding the bar in section
14 of the Family Courts Act could allow the said appeal on any ground avail9ble to the petitioner.
We do not agree with him. The bar in section 14 is such that, in the circumstances of the case the
decree for dissolution of marriage could not have been modified (sic) in a collateral manner. The
intention as also the language of the bar in section 14 have been violated by the appellate judgment. It
was rightly set aside. This petition accordingly is dismissed.
1983 S C M R 398
Present : Aslam Riaz Hussain, Muhammad Afzal Zullah and M. S. H. Quraishi, JJ
MUHAMMAD JAMEEL-Petitioner
versus
Mst. SARWAR JEHAN AND 2 OTHERS-Respondents
Civil Petition No. K-223 of 1981, decided on 14th January, 1982.
Page 21 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(On appeal from the order dated 27th September 1981 of the High Court of Sind, Karachi, passed in
Writ Petition No. S-24 of 1981).
West Pakistan Family Courts Act (XXXV of 1964)---
-- S. 14-Constitution of Pakistan (1973), Art. 185 (3)-Suit for dissolution of marriage decreed by appellate
Court on basis of non-maintenance for more than two years for no fault of wife Husband claiming
dissolution of marriage on basis of Khula'-Parties not at issue on question of Khula'-Reluctance of High
Court to interfere with decree being not inconsistent with policy of law which confers a finality on such
decree, interference not justified in circumstances.
1982 S C M R 1223
Present : Zaffar Hussain Mirza and M. S. H. Qureshi, JJ
MUHAMMAD DEEN MALIK AND ANOTHER-Petitioners
Versus
IIND ADDITIONAL DISTRICT JUDGE, KARACHI AND OTHERS-Respondents
Civil Petition for Special Leave to Appeal No. K-235 of 1981, decided on 13th December, 1981.
(On appeal from the judgment and order of the High Court of Sind, Karachi, dated 28-10-1981,
passed in Constitutional Petition No. 19 of 1981).
(a) West Pakistan Family Courts Act (XXXV of 1964)----
---- Ss. 5 & 14-Jurisdiction-Appeal-Family Courts possess exclusive jurisdiction in matters
specified in Schedule to Family Courts Act, 1964 and custody of children and guardianship
included in such Schedule Section 14 of Act providing for appeal against decision given or
decree passed by Family Court to High Court in case of Family Court being presided over by a
District Judge an Additional District Judge, or a person of such rank and to District Court in all
other cases, forum of appeal in cases, in hand, held, clearly spelt out as High Court.-[Appeal
(civil)-Jurisdiction].
(b) Guardians and Wards Act (VIII of 1890)----
Page 22 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
----- S 47 [as amended by Guardians and Wards (Amendment) Ordinance (XI of 1980)] and
West Pakistan Family Courts Act (XXXV of 1964), Ss. 5, 14 & 25-Interpretation of
statutes-Leave to appeal-Contention that if S. 47 of Guardians and Wards Act be taken to have
been made dormant in view of combined effect of Ss. 5, 14 & 25 of Family Courts Act, 1964 and
right of appeal regulated by S. 14 of such Act, Amending Ordinance (XI of 1980) would be
rendered totally redundant and redundancy cannot be imputed to Legislature and further if effect
be given to Amending Ordinance it will have to be held that right of appeal would be regulated
by S. 47 and consequently no appeals lie from an order passed by Family Court under S. 12 of
Guardians and Wards Act, 1890-Submissions, held, raise serious question of law requiring
re-examination of view adopted in case reported as P L D 1981 S C 454, hence, leave to appeal
granted.-[Interpretation of statutes].
P L D 1983 Supreme Court 169
Present : Muhammad Afzal Zullah and Shafiur Rahman, JJ
DR. AKHLAQ AHMAD-Appellant
versus
Mst. KISHWAR SULTANA AND OTHERS-Respondents
Civil Petition for Leave to Appeal No. 114 of 1982, heard on 8th February, 1983.
(Against the order and judgment dated 17-11-1981 of the Lahore High Court in 1. C. A. No. 321 of 1981).
(a) West Pakistan Family Courts Act (XXXV of 1964)-
-- S. 7-Dissolution of marriage-Contention that whatever happens subsequent to institution of
proceedings in Family Court cannot all be made basis for granting or refusing relief-Held, cannot be
advanced as a proposition of law-Conduct of parties, during proceedings particularly during
reconciliation efforts by Judge-To be taken note of and given effect to-Question whether parties, if
made to live, as husband and wife, would live within limits of God-Held, to receive full and continuous
attention of Judge who has to attend to every factor which may contribute or detract from it.
Page 23 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(b) West Pakistan Family Courts Act (XXXV of 1964)-
-- S. 7--Dissolution of marriage-Khula'-Errant wife cannot make her own conduct basis for dissolution of
marriage even by Khula` in manner to aggravate and license evil-Facts of case not showing that wife was
adjudged to be in error to give impression that she benefited from her own misdeeds-Judge, Family
Court, on objective appraisal of evidence, recording a finding in favour of husband but with regard to
question of Khula` holding in favour of wife-Such conclusion being in domain of discretion exercised by
authority having advantage of observing closely over a long period of proceedings behaviour and
conduct of parties towards each other-Held, not open to interference unless discretion manifestly
exercised arbitrarily and capriciously Conclusion by Family Court that parties cannot remain within limits
of God and dissolution of marriage by Khula` must take place-Inquiry into terms on which such
dissolution shall take place-Held, does not affect conclusion but only creates civil liabilities with regard
to benefits to be returned by wife to husband and does not affect dissolution itself.
Moonshee Buzul-ul-Raheem v. Luteefutoon 1Visa 8 Moo;'s Ind. ,App. 379 ref.,
(c) Constitution of Pakistan (1973)-
-- Art. 185(3)-West Pakistan Family Courts Act (XXXV of 1960, S. 7-Dissolution of marriage-Contention
that conduct of proceedings by Judge, Family Court was not fair and honest particularly writing an
elaborate judgment in an hour or so-Held, cannot be collaterally raised in Constitutional petition-Mere
timing and sequence of order sheet-Held, not a sure guide in drawing conclusions concerning fairness
and honesty of proceedings and maintenance of record thereof.
P L D 2002 Supreme Court 273
Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ
MUKHTAR AHMED ---Appellant
Versus
ANSA NAHEED and 2 others---Respondents
Civil Appeal No.583 of 1995, decided on 29th October, 2001.
Page 24 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
(On appeal from the judgment dated 27-10-1993 of Lahore High Court in Writ Petition No.
1660 of 1992).
(a) West Pakistan Family Courts Act (XXXV of 1964)-----
----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Where marriage
was dissolved on various grounds including Khula', then wife would be entitled to recover dower
and dowry, but where it was dissolved solely on the ground of Khula' then her offer made for
getting marriage dissolved on Khula' would be examined---Wife tiled suit for dissolution of
marriage on various grounds viz. cruelty, non-payment of maintenance, non-performance of
marital obligations, impotency of husband and Khula'---Wife also filed suit for recovery of
dowry amount---Family Court decreed the suit for dissolution of marriage on all such grounds
holding that wife in lieu of Khula' would not be entitled to claim dower, dowry and maintenance
---Husband, in view of such findings, filed in latter suit an application for rejection of the
plaint---Wife filed application for clarification of judgment and decree, but it was dismissed by
Family Court and its order was maintained by the Appellate Court---High Court accepted
Constitutional petition tiled by wife and set aside the conditions regarding relinquishment of
dower, dowry and maintenance---Contention of husband was that High Court in exercise of
Constitutional jurisdiction could not change judgment and decree passed by Family Court,
especially when the wife had not challenged same and her petition for clarification had been
dismissed by Courts below---Held': wife in her deposition recorded before Family Court had
forgiven only her claim for remaining amount of dower in lieu of Khula' and had not given up
her claim of dowry---Marriage was dissolved on various 'rounds including Khula'---Where
marriage was dissolved on other grounds also, then wife would be entitled to recover amount of
dower and dowry, but where it was dissolved solely on ground of Khula', then situation would be
different and it would be examined keeping in view the offer she had made for getting marriage
dissolved on Khula'--Findings of High Court were correct and not open to any exception---
Supreme Court dismissed the appeal of husband while making it clear that suit tiled by wife for
recovery of dowry amount would be decided on its own merits
1998 S C M R 954
[Supreme Court of Pakistan]
Present: Ajmal Mian and Fazal Ilahi Khan, JJ
ABDULLAH---Petitioner
versus
Mst. ABIDA and another---Respondents
Page 25 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
Civil Petition for Leave to Appeal No.379 of 1995, decided on 15th November, 1995.
(On appeal from the judgment dated 24-4-1995 of. the Lahore High Court, Multan Bench,
Multan, passed in Writ Petition No.2816 of 1993).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)=--Dissolution of marriage on
ground of Khula'---Finding rendered by Family Court was maintained by High Court in
dismissing husband's Constitutional petition against judgment and decree of Family Court---
Validity---Petition for leave to appeal was barred by time by 35 days and ground for delay, that
petitioner had undergone eye operation seemed to be not sufficient for operation was carried out
prior to expiry of period of limitation for filing petition for leave to appeal--On merits too, there
seemed to be no infirmity in reasoning of High Court in upholding finding of Trial Court---High
Court was justified in not pressing into service its Constitutional jurisdiction involving
determination of question of fact which was competently concluded by Family Court, inter alia,
on basis of admission of petitioner in cross-examination---Petition for leave to appeal was
without merits---Leave to appeal was refused in circumstances
1997SCMR1601
[Supreme Court of Pakistan]
Present: Abdul Hafeez Memon, Mukhtar Ahmad Junejo and Raja Afrasiab Khan, JJ
SALEEM JAHANGIR---Petitioner
versus
Mst. KHATM-UN-NISA---Respondent
Civil Petition for Leave to Appeal No.45-Q of 1996, decided on 22nd May, 1997.
(On appeal from the judgment of the Balochistan High Court dated 22-4-1996 passed in Family
Appeal No.l of 1995 and Cross Objection No.2 of 1995).
West Pakistan Family Courts Act (XXXV of 1964)---
-.---S.5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)---Wife's suit for dissolution of
marriage on ground of Khula' decreed by High Court---High Court while reversing finding of
Trial Court noted that Court below had not taken note of its own observations made in its order,
regarding conduct of wife, in which she had explained extreme hatred---Prolonged litigation
between parties, which was full of allegations and counter-allegations against each other, itself as
a factor was sufficient to hold that wife had developed intense dislike towards her husband and it
was not possible for her to lead happy matrimonial life with him---Judgment of High Court
Page 26 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
clearly indicated that it proceeded on correct principles of law and had also correctly appreciated
evidence on record in reaching findings and acted rightly in setting aside judgment and decree
passed by Family Court---Judgment of High Court would warrant no interference---Leave to
appeal was refused in circumstances.
1996 S C M R 411
[Supreme Court of Pakistan]
Present: Saad Saood Jan and Muhammad Ilyas, JJ
AMANULLAH---Petitioner
versus
DISTRICT JUDGE, GUJRANWALA and 2 others---Respondents
Civil Petition for Leave to Appeal No. 858-L of 1994, decided on 31st October, 1995.
(From the judgment/order of Lahore High Court, Lahore, dated 4-5-1994 in Writ Petition No.
7160 of 1992).
Page 27 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)---Dissolution of marriage on
ground of Khula' ---Courts below dismissed plaintiff's (wife's) suit for dissolution of marriage
and decreed that of husband for restitution of conjugal rights---High Court decreed plaintiff's suit
on ground of Khula'--Validity---Wife had admittedly made complaint to Senior Superintendent
of Police that her husband had beaten her---Wife was sent to Darul Aman by way of protection
from her husband---When wife in such circumstances had stated that she had developed hatred
towards her husband, her assertion could not be rejected summarily---Relationship between
husband and wife being of very intimate nature, it would be too embarrassing for either of them
to disclose to Court what had transpired between them in privacy of their home---Such things
could, thus, hardly be any standard for assessing substance in wife's assertion that she had
developed hatred for her husband---Order of High Court in dissolving marriage on ground of
Khula' was thus, unexceptionable---Leave to appeal was refused in circumstances
Page 28 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
1994 S C M R 1124
[Supreme Court of Pakistan]
Present: Saeeduzzaman Siddiqui and Wali Muhammad Khan, JJ
MUHAMMAD SHER ---Petitioner
versus
Mst. SALMA BIBI and another---Respondents
Civil Petition No. 213 of 1992, decided on 2nd September, 1992.
(From the judgment/order dated 20-4-1992 passed by Lahore High Court, Rawalpindi Bench,
Rawalpindi, in W.P. No. 194/90).
West Pakistan Family Courts Act (XXXV of 1964)--
Page 29 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
----S. 5 & Sched: --Constitution of Pakistan (1973), Art. 185 (3)---Dissolution of marriage on
Khula'---Petitioner's claim for return of benefits---Petitioner raising a new point which he had not
raised before Court below ---Effect-- Petitioner could not be allowed to raise a point for the first
time before Supreme Court for which no foundation was laid at earlier stage---High Court had
categorically stated that Trial Court while dissolving marriage of petitioner with respondent had
directed that latter would not be entitled to recover the specified dower amount---High Court's
such observation clearly showed that respondent had disclaimed right of dower while praying for
dissolution of marriage by way of Khula'---There being no illegality in the judgment of High
Court, no interference was warranted therewith---Leave to appeal was refused in circumstances.
1989 S C M R 173
Present: Muhammad Afzal Zullah, Javid 1qbal, and Saad Saood Jan, JJ
JAN MUHAMMAD--Petitioner
versus
JUDGE FAMILY COURT and others--Respondents
Civil Petition No. 1030 of 1985, decided on 9th May, 1988.
(From the order dated 28-9-1985 of the Lahore High Court in W.P. No. 663/85).
Muslim Family Laws Ordinance (VIII of 1961)--
---S. 7-- West Pakistan Family Courts Act (XXXV of 1964), S. 5k& Sched.-Constitution of
Pakistan (1973), Art. 185(3)--Dissolution of marriage on ground of Khula' and
non-maintenance--Family Court decreeing suit of wife for dissolution of marriage on ground of
Khula with observation that she was not entitled to get back articles of dowry and that she should
surrender those articles as Zar-e-Khula'--Husband praying for return of benefits from wife which
she received from him--Sufficient material available on record to support decree of Family
Court--Husband in his statement before Family Court, made no claim that he had given any
property, movable or immovable etc. to his wife--Husband's Constitutional petition was
dismissed by High Court with observation that there was sufficient evidence to grant a decree of
dissolution even on ground of non-maintenance--Leave to appeal refused.
1988 S C M R 1288
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ
FALAK SHER--Petitioner
Page 30 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
versus
Mst. MEHTAB BIB.I and another--Respondents
Civil Petition for Special Leave to Appeal No.429 of .198;;, decided on 15th May, 1988.
(On appeal from the judgment dated 5-3-1985 of the Lahore High Court, Lahore, passed in Writ
Petition No.894 of 1985).
West Pakistan Family Courts Act (XXXV of 1964)-
--S.5--Constitution of Pakistan (1973), Art .185(3)--Petitioner trying to prevent dissolution of
marriage between him and his wife--Wife found entitled to Khula' decree--Finding being
unexceptionable and order of dissolution of marriage not suffering from any- infirmity, legal or
otherwise, leave to appeal refused.
1988 S C M R 1286
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ
MUHAMMAD SAN AULLAH—Petitioner
versus
MUHANIMAD ILYAS and others--Respondents
Civil Petition No.472 of 1987, decided on 11th May, 1988.
(From the judgment and order dated 23-5-1987 of the Lahore High Court in W.P. No.2593/85)
West Pakistan Family Courts Act (XXXV of 1964)--
---S.5—Constitution of Pakistan (1973), Arts .185(3)& 99- Constitutional jurisdiction--Exercise
of--Finding of fact—Interference with--Dissolution of marriage by Khula'--Return of dowry—
Appellate Court recording finding of fact after reappraisal of evidence—High Court declining to
interfere in its Constitutional jurisdiction--;No basis for taking a different view existing, leave to
appeal refused.
1988 S C M R 2099
Present: Muhammad Afzal Zullah, Javid Iqba1 and Saad Saood Jan, JJ
MUHAMMAD PARVEZ--Petitioner
Page 31 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
versus
MUHAMMAD YUSUF and another--Respondents
Civil Petition for Special Leave to Appeal No.602 of 1984, decided on 8th May, 1988.
(On appeal from the order dated 24-3-1984 of the Lahore High Court, Lahore, passed in Writ
Petition No.1147 of 1984).
West Pakistan Family Courts Act (XXXV of 1964)--
---S.5 it Sched.--Constitution of Pakistan (1973), Arts.185(3) & 199-Dissolution of marriage-- Khula'
decree passed by Trial Court challenged by husband on ground that there was no specific finding that
parties would not be able to keep limits of Allah which was an essential ingredient of such a
decree--Finding of fact on issue reached by Trial Court affirmed by High Court--Discussion by Trial Court
showing that it was fully conversant with rule that Khula' decree could be granted when it was found
that parties would not be able to keep limits of Allah--High Court also examined arguments of counsel
for petitioner regarding Khula' from that angle and came to the same conclusion as reached by the Trial
Court--Held, no interference was called for with findings of fact challenged by petitioner in Constitutional
jurisdiction of High Court and they were unexceptionable whether looked at from point of legality
or propriety--Leave to appeal refused.
1987 S C M R 699
Present: Muhammad Afzal Zullah, Mian Burhanuddin Khan and
Saad Saood Jan, JJ
MUHAMMAD SAEED--Petitioner
Versus
Mst. KHALIDA SHAHEEN and others--Respondents
Civil Petition for Special Leave to Appeal No. 22 of 1987, decided on
2nd February, 1987.
(On appeal from order of the Lahore High Court, Lahore dated
30-11-1986, in Writ Petition No.4244 of 1986) .
Constitution of Pakistan (1973)—
Page 32 of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)
--Arts. 185(3) & 199--West Pakistan Family Courts Act (XXXV of
1964), S.12--Dissolution of marriage on ground of Khula'--Prompt
dower-Petitioner neither in his written statement nor in his statement
before Family Court taking up position that if plea of Khula' was
allowed, amount of prompt dower should be refunded to him--Such
claim, held, could not be pressed by petitioner for first time in
constitutional jurisdiction in High Court--Petition for leave to appeal
dismissed.
(b) Muslim Family Laws Ordinance (VIII of 1961)--
--- S. 8--West Pakistan Family Courts Act (XXXV of 1964), Ss. 7 &
14--Constitution of Pakistan (1973), Art. 199-- Dissolution of marriage
on ground of Khula--Prayer for- -Constitutional jurisdiction, exercise
of--Concurrent finding of Family Court and Appellate Court below
refusing dissolution of marriage of petitioner wife on ground of Khula,
ignoring statement of wife that she would relinquish her dower and
claim for maintenance in lieu of grant of Khula, held, was without
lawful authority--High Court in exercise of constitutional jurisdiction
set aside concurrent order of Courts below and remanded case to Trial
Court to decide afresh after affording parties opportunity to adduce
evidence.
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