Procedure Of Divorce In Pakistan : It is not with regard to proof of procedure of divorce in Pakistan that the Shia Law insists on two witnesses but to the very act of divorce and it cannot, therefore, be held that the matter related to proof and not to substantive law. Talaq in the manner categorical statement by husband before Family Court about having divorced his wife would by itself dissolve marriage between husband and wife. Where both man and woman accused had claimed themselves to be legally-wedded husband and wife in the statement, on the support of the written divorce deed by production of their Nikahnama and divorce deed by which complainant was alleged to have pronounced three Talaqs and said Talaqnanma was attested by a Magistrate and also a Notary Public and other witnesses, its verification being necessary, Trial is obliged to have verified the genuineness of said Talaqnama. Failure of the Court would render the conviction awarded as without any factual or legal basis. Onus to prove procedure of divorce in Pakistan would lie on the party alleging divorce to a wife. Onus to prove of procedure of divorce in Pakistan would lie on the party alleging divorce to a wife by her deceased husband. In absence of such proof, presumption could validly be raised that marriage between spouses remained intact till death of her husband. Facts considered in the light of the Talaqnama and notice issued by the Chairman, Arbitration Council supported by the oral testimony of witnesses proved divorce. Onus to prove Nadra divorce certificate in Pakistan was on husband. Factum of marriage was admitted, onus to prove divorce, heavily lay on the party objecting the same. Non-service of notice is a mere irregularity. Provisions of S. 7(1) and Rule 3(b) are directory in nature as no penalty is provided for their non-compliance. Non- service of notice is a mere irregularity and does not affect validity of a divorce validly pronounced and communicated. Petition of procedure of Divorce in Pakistan dismissed. Divorced Without Giving Notice: Divorced without giving notice of divorce to Chairman Union Council was irregularity. Recovery of maintenance Suit for recovery allowance and dower amount against the petitioner who was employed in Germany was maintained. Family Court awarding maintenance allowance at the rate of Rs.5, 000/- per month for her iddat period and for minor child @ of Rs.3, 000/- per month till his custody. Entitled to get maintenance allowance was maintained and appeal filed by petitioner was dismissed. Amount of maintenance allowance awarded was not excessive or exorbitant in the age of inflation/dearness. In light of admission in the written statement evidence on the file and Submissions made at bar, it transpired that controversy was correctly put to rest by both the Courts, without committing any error of law. Held, no case for interference in Constitutional jurisdiction of High Court was made out. Allowance/dower of maintenance or Petition for procedure of khula in Pakistan was dismissed. Pronouncement of divorce-Service of notice of divorce was mandatory. Whereby at time of pronouncement of talaq if not found available, union or town, where such wife last resides with such person, has jurisdiction. Point of jurisdiction is entirely resolved by referring Rule 3(b) of Rules, 1964. Petition was dismissed.' Change of residence of wife. Question of validity of Nadra divorce certificate in Pakistan was challenged. Contention of petitioner that service of notice at her current address, are of no legal effect, that should have been filed in union council where at the time of pronouncement of divorce she was residing. Held, Husband proceeded to take steps including pronouncement of divorce afresh and sent intimation to all concerned including the petitioner, her two brothers and Administrator Union Committee. Present petition was yet another attempt on the part of the petitioner to delay what had unfortunately become inevitable. Subsection (4) of section 7 of the Ordinance stipulates that within 30 days of the receipt of the notice of Talaq as provided in subsection (1), the Chairman shall constitute and Arbitration Council for the purpose of brining out a reconciliation between the parties and the Arbitration Council shall take all steps necessary to bring about such reconciliation. There are three important requirements under sub-section () of section 7 to make a Talaq pronounced by the husband effective:() Pronouncement of Talaq in accordance with Muslim Law (i) Service of notice on the Chairman (ii) Service of copy of the notice on the wife. If any one of these conditions is not satisfied the Talaq would not become effective even after 90 days. After sending intimation to chairman regarding pronouncement of Talaq husband ought to appear before chairman to verify that he had pronounced Talaq and sent notice to chairman. Effectiveness of such decree after the procedure of Divorce in Pakistan would be reckoned as from the date of due service and efflux of requisite period as be relevant in a given case. Divorce ipso facto would become effective on the expiry of ninety days from the date when notice is received by the Chairman. Divorce pronouncement by the husband upon the wife having not been revoked, becomes effective after the expiry of 90 days from the date of receipt of notice by the Nazim/Chairman, Arbitration Council. Family Court is under obligation to send by registered post Within 7 days of passing such decree, a certified copy of the same to appropriate Chairman whereupon Chairman would proceed as if he had received intimation of Talaq under this Ordinance. Muslim Family Laws Ordinance, 1961: Period of 90 days would start from the date the certified copy is sent to him by Court. Chairman Husband would be deemed to have divorced his wife on the date when he made statement in Court that he had divorced her. Proceedings under provisions of S. 7, Muslim Family Laws Ordinance, 1961, are primarily designed towards bringing about reconciliation between spouses. Husband having died, question of reconciliation does not arise and proceedings even if pending, stands frustrated. No notice of Talaq having been served upon wife during lifetime of her husband, proceedings concluded by Chairman on the application of brother of deceased husband are unlawful. Sanctity is attached to the certificate of effectiveness of divorce and the suit for restitution of conjugal rights would not be entertain able on production of such certificate when such certificate has neither been cancelled nor declared to be without jurisdiction even in procedure of khula in Pakistan.
Seeking The Valid Procedure of Khula In Pakistan : Impression could not be dispelled that it was the cruel conduct of defendant that compelled plaintiff to seek procedure of khula in Pakistan from defendant. Couple lived together as husband and wife for a number of years which must be regarded as a benefit received by husband also disentitling him to seek return of entire dower in case of procedure of khula in Pakistan. Plaintiff was not liable to return dower to defendant except part of dower i.e., Rs.1000/- which she voluntarily offered to return to defendant in consideration of dissolution of marriage on the ground of procedure of khula in Pakistan. High Court in exercise of Constitutional jurisdiction, maintained the judgment and decree passed by lower Appellate Court with the modification that plaintiff would return Rs.1000 to defendant. Petition was disposed of accordingly. Direction to return five tolas gold in lieu of procedure of khula in Pakistan was rejected. Suit for procedure of divorce in Pakistan, recovery of dower and dowry articles was filed. Pre-trial reconciliation proceedings failed, suit for procedure of khula in Pakistan was decreed on ground of divorce . Whereas in filing of Constitutional petition lapse of time or question of latches is to be examined on equitable principles for reason that exercise of Constitutional principles jurisdiction is always in nature of equitable relief. Petitioner had invoked Constitutional jurisdiction of High Court after a lapse of four years Petitioner invoking Constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity and gross negligence in enforcement of her right. Petition was liable to be dismissed on ground of laches. Petition was dismissed. Question Of Return Of Haq Mehr: Question of return of Haq Mehr (dower) received has to be adjudged in the light of conduct of husband. In case of procedure of divorce in Pakistan on the ground of Khula', question of return of Hag Mehr (dower) received has to be adjudged in the light of conduct of husband which means that where evidence indicates that dissolution of marriage is caused by or is attributed to faulty conduct of husband, then the husband would become disentitled to return of dower otherwise due. Such rule is based on a sound rationale as it would be unjust to deny dower to a wife who has been forced into seeking dissolution on account of reprehensible acts or omissions of her husband. 8. Suit for dissolution of marriage on ground of Khula' Restitution of dower Constitutional petition had impugned judgment of Family Defendant in amount. Court were by the Court had dissolved the marriage between the parties by way of procedure of khula in Pakistan. Plaintiff in her suit for procedure of divorce in Pakistan had categorically stated that she had developed hatred for the defendant; and that it was not possible for her to live with him within the limits prescribed by Almighty Allah; and she was not even ready to reconcile with him as she had suffered mental torture at the hands of defendant. Plaintiff, who was a doctor by profession, could not be compelled to live with the defendant as his wife against her wishes. Family Court, in circumstances, while passing impugned judgment and decree had not committed any illegality. Once the Family court came to the Conclusion that wife was entitled for procedure of khula in Pakistan it must pass such decree in her favor. Decision regarding the restoration of mutual benefits, would have to be taken in the light of facts of each case; and would have the effect of only creating a civil liability. If the contention of defendant that Khula' could not be granted without restitution of dower and other benefits were accepted, then destitute wife, who was found otherwise entitled of Khula', would stand deprived of the right simply because of her incapacity to return the benefits, which would be highly unfair and against the spirit of law and justice. It is not the requirement of law, that in case of "procedure of divorce in Pakistan, the wife would be compelled to return the entire Consideration, benefits/Haq Mehr" received by the wife. Suit was filed by wife against her husband, for recovery of gold ornaments. Family Court dismissed the Suit on the ground that matter was of civil nature. Lower Appellate Court allowed the appeal and decreed the suit in that appeal before lower Appellate Court was not in favor of wife. Plea raised by husband was that appeal before lower Appellate Court was not competent as no Court-fee was affixed by wife. Plea raised by husband was appeal competent as not Court-fee was affixed by wife. Family Court had jurisdiction under S. 5 of West Pakistan Family Courts Act, 1964, to entertain, hear and adjudicate upon matters specified in Part-I of the Schedule to West Pakistan Family Courts Act, 1964, while the Schedule had specified "personal property and belongings of a wife" in respect of which a family suit could be brought. Witness for husband did not state that gold ornaments were with wife but stated in his examination-in-chief that he did not know in whose possession the gold ornaments were lying. Such testimony of husband's witness was crucial and tilted balance in favor of finding that gold ornaments were with husband. No illegality or irregularity was found in judgment and decree passed in favor of wife to call for interference of High Court in exercise of Constitutional jurisdiction. Petition was dismissed in circumstances. Plaintiff (wife) filed suit for dissolution of marriage Plaintiff (wife) filed suit on the ground of procedure of khula in Pakistan . Dissolution of marriage on the ground of Khula and nonpayment of maintenance was upheld. Defendant (husband) contested the suit and filed suit for restitution of conjugal rights. Trial Court decreed the suit for dissolution of marriage where as dismissed the suit for restitution of conjugal rights. Appellate Court maintained judgments and decree passed by Trial Court. Contention by husband was that without the return of dower and other articles allegedly removed by the wife from his house, a decree for dissolution of marriage on ground of Khula could not have been passed. Rupees 1000/- Was Fixed as Dower And Paid At The Time Of Marriage: Husband, in the written statement had not specifically claimed the return of dower so an implied waiver was attracted on his part. Under the provision of waiver was attracted on his part. Under the provision of S. 10(4) of the West Pakistan Family Courts Act, 1964, it was mandatory for the Court to pass a decree for dissolution of marriage on failure of reconciliation proceedings and direct the return of "Haq Mehr" received by the wife in consideration of procedure of divorce in Pakistan and procedure of khula in Pakistan, however, if the husband did not claim the return of dower specifically an implied waiver would be attracted on his part and in such eventuality the wife reconciliation proceedings had failed, in the present case, but the wife had categorically stated on oath that she had severe hatred towards the husband. Husband had been living abroad throughout. Contention that the wife had taken ornaments, garments and cash amount from his mother could not be accepted and if in fact she had taken these articles from his mother, such would not amount to benefits of marriage taken from the husband.
Jurisdiction For Procedure Of Khula In Pakistan: Decree was passed by the Court of competent jurisdiction for procedure of khula in Pakistan and others and did not suffer from any illegality or infirmity due to alleged non- return of dower as the husband had not specifically claimed the same. Constitutional petition was dismissed in circumstances. Return of dower or benefits in procedure of khula in Pakistan was not mandatory. Return of dower or benefits of marriage was not condition precedent for a decree for procedure of khula in Pakistan in view of the provisions of S. 10(4) of the West Pakistan Family Courts Act, 1964. 13. It was mandatory for the Court to pass a decree for procedure of divorce in Pakistan on failure of reconciliation proceedings and direct the return of "Haq Mehr" received by the wife in consideration of decree for procedure of khula in Pakistan . It was mandatory for the Court to pass a decree for dissolution of marriage on failure of reconciliation proceedings and direct the return of "Haq Mehr' received by the wife in consideration of Khula procedure of divorce in Pakistan, however if the husband did not claim the return of dower specifically, an implied waiver would be attracted on his part and in such eventuality the wife was not obliged to even, return the dower. Suit for dissolution of marriage or grant of procedure Khula in Pakistan to return of title documents of house gifted by him to plaintiff was heard. Suit for dissolution of marriage of grant of Khula, return of title documents of house gifted by him to plaintiff in pursuance of compromise entered between parties in previous suit for recovery of dower amount. Dismissal of such application by Family Court was upheld. Main suit was still pending adjudication before Family Court meanwhile Nadra divorce certificate in Pakistan was issued. Defendant had gifted his house to plaintiff out of natural love and affection through a registered declaration of gift. Plaintiff had accepted such gift and taken possession of gifted house before the issuance of Nadra divorce certificate in Pakistan. Said house was not a part of dowry articles given by defendant to plaintiff at time of her marriage. Provision of S. 10(4) of West Pakistan Family Courts Act, 1964 did not provide for Surrender of gift by wife consequent upon grant of Khula. Family Court had rightly dismissed such application. High Court dismissed Constitutional: High Court dismissed Constitutional petition in Circumstances. Such of her husband filed suit for recovery of dowry articles against relatives of her deceased husband. Both the Courts below concurrently dismissed the suit and appeal filed by plaintiff on the ground that such suit was only maintainable between spouses. Word "party" had a very wide meaning and was not necessarily confined to spouses and it included "any person" which in the "consideration" of Family Court was "necessary" for "proper decision" of the "dispute" and whom the Family Court might add as a party to dispute Schedule to West Pakistan Family Courts Act, 1964, could be instituted before Family Court. Claim of plaintiff for recovery of dowry was available at Serial number 8 of the Schedule to West Pakistan Family Courts Act, 1964, Family Court had jurisdiction to try and adjudicate upon the matter of procedure of khula in Pakistan. High Court, in exercise of Constitutional jurisdiction, set aside the judgments and decrees passed by two Courts below and case was remanded to Family Court for decision afresh of procedure of divorce in Pakistan. Petition was allowed in circumstances. Dissolution of marriage on ground of Khula in Pakistan was maintained. Plea of husband that dower amount had been paid to wife on wedding night. Plea of husband that dower amount had been paid to wife on wedding night. Failure of conciliation proceedings between parties and wife's statement before Court that she would prefer to die than to live with the husband. Family Court after passing decree had not refused to restore dower to husband, but had postponed its return till decision of such issue after recording evidence of parties. Family Court had correctly put to rest controversy without committing any error of law or facts. Procedure Of Khula In Pakistan: Plaintiff filed suit for dissolution of marriage and started procedure of khula in Pakistan . Dowry articles and gold ornaments taken by the defendant were in his possession. Plaintiff filed suit for dissolution of marriage, recovery of dower in shape of gold ornaments weighing 29 tolas or the market value of the same; recovery of maintenance allowance; and recovery of dowry articles as per detail mentioned in the list or the market value of the said articles. Suit had concurrently been decreed by the Family Court and Appellate Court below. Nikah of the parties was performed in the year 1990 and 20 tolas gold ornaments were fixed as dower of the plaintiff. Defendant had divorced the plaintiff in the year, 2003 and ousted her in her wearing apparel from his house and since then the plaintiff was residing with her parents. Dowry articles and gold ornaments taken by the defendant were in his possession. Defendant had not paid maintenance allowance. Both the Courts below had granted decree for recovery of dower i.e., 29 tolas gold ornaments and the defendant had not sought for relief of the substitution of dissolution of marriage on the basis of "Khula". Plaintiff had proved on record that 20 tolas gold ornaments fixed as dower, was not paid by the defendant to her. Plaintiff being entitled for decree of dower amount same was rightly granted by the Courts below. Judgments and decrees of both the Courts below not suffering from any illegality, irregularity, misreading and non-reading or jurisdictional error, were maintained, in circumstances. High Court had no jurisdiction to substitute its own findings to the findings of the Tribunals below in Constitutional jurisdiction and ultimately Nadra divorce certificate in Pakistan should be issued. Constitutional petition was dismissed. Return of dower, gift or benefit. Return of dower, gift or benefit to husband in consideration of obtaining Khula' divorce by wife.