page 1 of 32 khula cases: s. 5, 10(4), 14 family courts act (scmr

of 32 Khula Cases: S. 5, 10(4), 14 Family Courts Act (SCMR)

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


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 M R 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


Peshawar High Court, Abbottabad Bench).


----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


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).


----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


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


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.


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


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).


----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---


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)---


----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.


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


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


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



----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/ex-

husband, 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 non-

service in the suit for dissolution of marriage, Supreme Court did not find it a fit case for

interference---Leave to appeal was refused.


2003 S C M R 1551


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.


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.


(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


Present: Ajmal Mian and Fazal Ilahi Khan, JJ

ABDULLAH---Petitioner

versus

Mst. ABIDA and another---Respondents


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).


----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


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).


-.---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


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


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).


----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


Present: Muhammad Rafiq Tarar and


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).


----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


1994 S C M R 1124


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).


----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).


---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.

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).


---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.


(On appeal from the order of the Lahore High Court, Lahore dated 13th September, 1987 in

Writ Petition No. 3375 of 1987).


---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



---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


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


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


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).



---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)

.


---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


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.


(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).


-- 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)----


----- 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].


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.


(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.


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.


(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


Present: Ajmal Mian and Fazal Ilahi Khan, JJ

ABDULLAH---Petitioner

versus

Mst. ABIDA and another---Respondents


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).


----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


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).


-.---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

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


1996 S C M R 411


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).



----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


1994 S C M R 1124


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).



----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


FALAK SHER--Petitioner


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


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


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)


---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


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



---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 Constitu-

tional 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)—


--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.

page 1 of 32 khula cases: s. 5, 10(4), 14 family courts act (scmr

Documents