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گواہ کو ای میل پیش کرنے اور اس سے سابقہ بیان پر جرح کرنے کی درخواست محض اس بنیاد پر مسترد کر دی گئی کہ ای میل دعویٰ یا جواب کے ساتھ منسلک یا ذکر نہیں کی گئی تھی۔۔ درستگی۔۔ قانونِ شہادت 1984 کی دفعات فیملی کورٹ کی کارروائی پر لاگو نہیں ہوتیں، تاہم شہادت ریکارڈ کرنے کے بنیادی اصول کو مدنظر رکھنا ضروری ہے -

فیملی کورٹ کوئی بھی ایسا طریقہ اختیار کر سکتی ہے جو قانون کے تحت واضح طور پر ممنوع نہ ہو۔ جرح (Cross-examination) گواہ کے بیانِ حلفی کی صداقت جانچنے کا ایک اہم معیار ہے۔ جرح کرنے والی فریق کو یہ حق حاصل ہے کہ وہ (Leading Questions) کرے اور گواہ کو اس کے سابقہ بیانات سے متصادم کرے، خواہ وہ بیانات کسی اور کارروائی یا واقعہ سے متعلق ہوں، بشرطیکہ ان کا تعلق زیرِ بحث معاملے سے ہو ۔ گواہ کی ای میل یا دیگر ڈیجیٹل مواصلات کو سابقہ بیان تصور کر کے جرح کے دوران پیش کیا جا سکتا ہے۔ فیملی مقدمے میں مدعا علیہ پر لازم ہے کہ وہ اپنے تمام انحصار شدہ دستاویزات ظاہر کرے۔ ای میل ایک دستاویزی شہادت کی شکل ہے اور بطور شہادت قبول کی جا سکتی ہے۔ ای میل کی صداقت اور سالمیت برقرار رکھنے کے لیے ڈیجیٹل دستخط اور انکرپشن جیسی حفاظتی تدابیر اپنانا ضروری ہے۔ اگرچہ ای میل یا دیگر الیکٹرانک دستاویزات کی اعتباریت کو چیلنج کیا جا سکتا ہے، لیکن کسی فریق کو یہ حق چھینا نہیں جا سکتا کہ وہ انہیں بطور شہادت عدالت میں پیش کرے۔ اگر ای میل یا ڈیجیٹل مواد گواہ نے خود تیار یا بھیجا ہو، تو جرح کے دوران اسے اس کے سامنے رکھا جا سکتا ہے۔ زیریں عدالتوں کے متنازعہ احکامات کالعدم قرار دیے گئے۔ درخواست گزار کو اجازت دی گئی کہ وہ جرح کے دوران گواہ کو اس کی تیار کردہ یا بھیجی گئی ای میلز یا سوشل میڈیا پیغامات سے متصادم کرے، بشرطیکہ ان کا تعلق مقدمے سے ہو۔ اس بنا پر آئینی درخواست منظور کر لی گئی۔

🔴 2020 C L C 1029 [Sindh]

Before Fahim Ahmed Siddiqui, J

TAIMOOR MIRZA----Petitioner

Versus

MALIHA HUSSAIN and others----Respondents

C.P. No.S-806 of 2019, decided on 1st August, 2019.

📍Guardians and Wards Act (VIII of 1890)---

----S.25---Family Courts Act ( # # of 1964), S. 17---Qanun-e-Shahadat (10 of 1984), Preamble---Petition for custody of a minor---Additional evidence, production of---Requirements---E-mail or other digital Communications---Evidentiary value---Scope---Confronting witness with his earlier statement---Scope---Application for production and confrontation of e-mail to the witness was dismissed on the ground that same was not annexed or mentioned in the pleadings---Validity---Provisions of Qanun-e-Shahadat, 1984 were not applicable to the proceedings before Family Court but basic principle for recording evidence should be considered---Family Court could adopt any procedure which was not expressly barred or prohibited by law---Cross-examination was a litmus test of the truthfulness of the statement made by a witness on oath in examination-in-chief---Party conducting cross-examination could ask leading questions and confront the witness with previous statements whether same pertained to some other proceedings or event, subject to relevancy with the issue---E-mail or other digital communication of a witness might be treated as previous statement and confronted during cross-examination---Defendant in a family suit had to disclose all the documents relied by him---E-mail was a form of documentary evidence and same could be admitted as evidence---Measures were to be taken to protect the integrity and authenticity of email by digital signature and encryption---Reliability of email or other electronically generated documents might be subject to attack but a party could not be restrained to present it in the Court as a documentary evidence---If e-mails or other digital documents were generated or originated by a witness then same could be confronted to him during his cross-examination---Impugned orders passed by the Courts below were set aside, in circumstances---Petitioner might confront the respondent in the witness box during cross-examination with all the digitally created and communicated documents by her through email or social media, subject to relevancy of the same---Constitutional petition was allowed, in circumstances.

Muhammad Ijaz Ahmed Chaudhri v. Mumtaz Ahmed Tarar 2016 SCMR 1; Anwar Ahmed v. Mst. Nafisa Bano 2005 SCMR 152; Abdul Aziz v. Gulzar Ahmed 2006 CLC 1237; Mrs. Nargis v. Muhammad Tariq Moten SBLR 2012 Sindh 542; Allied Bank Ltd v. Asif Aziz Memon 2006 PLC 448; Messers Asghar Ali & Bros v. United Bank Ltd. 1987 CLC 504; Khizar Hayat v. Judge Family Court, Sargodha and another 2018 MLD 1480; Mst. Talat Shaheen and others v. Muhammad Ibrar and others 2012 MLD 216 and Alamgir Khalid Chughtai v. The State PLD 2009 Lah. 254 ref.

Amjad Ali and another v. Mst. Samara Yasmeen and 2 others 2012 MLD 14 rel.

Amel Khan Kasi and Waqar Ahmed for Petitioner.

Rauf Ahmed Butt for Respondent No.1.

Date of hearing: 16th July, 2019.

🔴JUDGMENT

FAHIM AHMED SIDDIQUI, J.----Through the instant constitution petition, the petitioner impugns the order dated 23-05-2019 passed by the learned Additional District Judge-VII, Karachi South in Family Appeal No. 75/2019 as well as order dated 10-04-2019 passed by the learned XXI Family Court, Karachi South in G&W Application No.981 of 2015. Since, petitioner remained unsuccessful to confront respondent during cross-examination with some digital document as well as bringing them on record before the trial Court as additional evidence; therefore, he filed instant petition.

2. The factual matrix of the case are that the petitioner, who is an educationalist and the owner of 'the International School', entered into marital lock with respondent No. 1 in the year 2005. From the wedlock, the couple was bestowed by Almighty Allah with a daughter namely Rania Mirza (DOB 16-12-2006) and a son namely Saif Ali Mirza (DOB 03-08-2011). The marriage continued for some time but unfortunately it was ended through a divorce, which was finalised with mutual consent of the parties under a certificate dated 17-07-2014, issued by the Chairman Arbitration Council, Clifton Board. As per the Settlement, an arrangement for visitation right of the petitioner and maintenance of the minors was worked out, while it was also settled that the custody of the minors will remain with respondent No. 1. As per petition, the petitioner is continuously paying Rs.30,000/- as maintenance/expenses for minors while visitation was also continued in terms of the Settlement, and subsequently an additional amount of Rs. 5000/- was also started to be given as salary of maidservant on the demand of respondent No.1; while educational expenses of the minors were also borne by the petitioner being the students of his own school. Per memo. of petition, all of a sudden, respondent No. 1 restrained the minors from meeting with petitioner and then he received a legal notice from her demanding more money against the maintenance of minors and she also switched the school of minors. The petitioner filed aforementioned G&W Application and agitated the matter solely in the interest of minors up to the level of Apex Court and on the direction of the Hon'ble Supreme Court, meetings with minors were restarted and their education were resumed in the school of the petitioner.

3. Nevertheless, the aforementioned G&W Application proceeded further and evidence of the petitioner was recorded; thereafter respondent No. 1 entered into the witness box. At the time of her cross-examination, counsel for the petitioner confronted respondent No. 1 with a printout copy of an email. The counsel for the respondent No. 1 objected upon such confrontation and production of the said email on the ground that the same was not annexed or mentioned at the time of filing of application. Subsequently, the counsel for the petitioner filed an application for production of additional evidence to enable him to bring some documentary evidence on the record for producing and confronting the witness during cross-examination. Such application of the petitioner was dismissed by the learned Family Court and subsequently the appeal was also declined by the lower Appellate Forum through the impugned orders, as such the instant petition was filed.

4. Mr. Amel Kasi, learned counsel for the petitioner, while pressing the instant petition has argued at length. He submits that on the objection of the counsel for respondent, he was restrained from confronting an important witness with an e-mail being inadmissible. He submits that the email is admissible as a document and it cannot be objected. According to him, the trial Court has declined to entertain the document i.e. email as additional evidence on the score that it was not the primary evidence. He submits that not only the application of additional evidence was declined but even the review filed by the petitioner was also not entertained by the trial Court. After referring, paragraphs 6 and 7 of the review order, Mr. Kasi submits that the trial Court erred in holding that it was a photocopy but the fact is that it was a printout of the email received by the petitioner from respondent No.1. He submits that an application for additional documentary evidence was filed on the basis of the observation of the trial Court in the order dated 12-01-2019, but the same was dismissed by the trial Court through the impugned order dated 10-04-2019. He draws attention towards the appeal filed against the said order of the trial Court and submits that the same was also dismissed through another impugned order dated 23-05-2019. According to him, law does not prohibit to confront a witness with a document and its production during cross-examination. He further submits that even a party can have a right to produce a document at a subsequent time and even such request can be entertained at the appellate stage. He contends that in spite of non-applicability of Qanun-e-Shahadat and C.P.C.; such practice is allowed by the superior Courts since long. In support of his contentions, he relies upon a good number of case laws, which include;

i. Muhammad Ijaz Ahmed Chaudhri v. Mumtaz Ahmed Tarar (2016 SCMR 1).

ii. Anwar Ahmed v. Mst. Nafisa Bano (2005 SCMR 152).

iii. Abdul Aziz v. Gulzar Ahmed (2006 CLC 1237).

iv. Mrs. Nargis v. Muhammad Tariq Moten (SBLR 2012 Sindh 542).

v. Allied Bank Ltd v. Asif Aziz Memon (2006 PLC 448).

vi. Messers Asghar Ali & Bros v. United Bank Ltd. (1987 CLC 504).

vii. Khizar Hayat v. Judge Family Court, Sargodha and another (2018 MLD 1480).

viii. Mst. Talat Shaheen and others v. Muhammad Ibrar and others (2012 MLD 216).

ix. Amjad Ali and another v. Mst. Samara Yasmeen and 2 others (2012 MLD 14).

x. Alamgir Khalid Chughtai v. The State (PLD 2009 Lahore 254)

5. Mr. Rauf Ahmed Butt, advocate representing the respondent No.1, supports the impugned orders overwhelmingly. First of all, he clarifies that his objection before the trial Court was not regarding the admissibility of email but on the ground that it was not annexed or mentioned in the pleadings, as such the same cannot be produced even during cross-examination of a witness. After referring impugned order dated 12-01-2019 passed by the trial Court, Mr. Butt submits that findings and observations of the trial Court are not because of photocopy or printout but due to not filing or producing the same at the proper time. He emphasizes upon the exclusion of the provisions of Qanun-e-Shahadat and C.P.C. by referring Section 17 of the Family Courts Act, 1964 and submits that in view of such position; question of production of additional evidence does not arise in family cases. According to him, this point has properly adjudicated and elaborately discussed by the two forums below as such the instant petition is not maintainable against the concurrent findings. He submits that the petitioner is actually trying to delay the disposal of the Guardian and Ward proceedings before the Family Court in spite of directions of the Hon'ble Supreme Court. In this respect, he refers the order passed by the Apex Court in C.P. No. 465-K of 2016 in which a direction was given to the trial Court for disposal of the G&W case within a period of four months. In the end, he seeks dismissal of the instant petition with directions for early disposal of the case pending before the Family Court.

6. I have heard the arguments advanced and have gone through the available material and reliance placed before me. The controversy between the parties was evolved when the trial Court restrained the petitioner consul from confronting the respondent with an email printout during cross-examination. It was happened when an objection was placed by the learned advocate appearing for respondent before the lower forum. The learned trial judge considered the objection raised by the learned counsel for the respondent as reasonable and disallowed the presentation of such email as well as asking a question regarding the same during cross-examination through an order dated 12-01-2019 on the ground that it was not formally produced with the plaint. Facing such situation, an application for additional evidence was moved, which was also dismissed by the trial Court though impugned order after holding that the email is a photocopy, as such it is not a primary evidence. The appellate court also not entertained such request of the petitioner through another impugned order referred in the initial part of this judgment.

7. The whole controversy between the parties rests on this vital issue that which documents can be confronted during cross-examination and whether email is admissible in evidence. No doubt, provisions of the Qanun-e-Shahadat Order shall not apply to a proceeding before the Family Court but it does not mean that the basic principle of evidence will be overlooked at the time of recording evidence. Although, at the time of recording evidence, it is not necessary for a Family Court to follow the procedure laid down in different articles of the Qanun-e-Shahadat but at the same time it is necessary that the basic rules laid down under the jurisprudence of evidence should not be overlooked. The non-applicability of Qanun-e-Shahadat and Civil Procedure Code in family courts proceedings as provided under Section 17 is not amounting to a bar on family courts but its purpose is to give a freedom to family courts to adopt any procedure which is not expressly barred or prohibited by law. In this respect reliance may be placed upon the case reported as Amjad Ali and another v. Mst. Samara Yasmeen and 2 others (2012 MLD 14), wherein the learned writer judge of Lahore High Court has also quoted several celebrated judgements on the same issue, he speaks as:

"However, there is ample authority for the view that a Family Court can, for the purpose of settlement of matrimonial disputes, employ or adopt any procedure which is not expressly barred or prohibited by law. According to Muhammad Azam v. Muhammad Iqbal (PLD 1984 Supreme Court 95), a Family Court has been given a real inquisitorial jurisdiction by introduction of special procedure including an obligatory effort to discover possibilities of amicable settlement. A Family Court can, thus, follow a flexible and liberal procedure while proceeding with a family suit and can exercise all such powers as are not prohibited by the West Pakistan Family Courts Act, 1964. In Ejaz Mahmood v. Mst. Humaira and another (1983 CLC 3305) and Mirza Shahid Baig v. Lubna Riaz and 2 others (2004 CLC 1545), it was observed that the provisions of C.P.C. are not applicable to a family suit but the Family Judge can adopt any procedure which is not expressly barred by the Act and which is necessary to prevent the course of justice being deflected. Again in Abdul Majid v. Judge Family Court, Karore Pacca and 2 others (2003 YLR 884), it was held that a Family Court has to regulate its own procedure and can apply any procedure not prohibited by law. In this context, it may be added that although the provisions of the Code of Civil Procedure, 1908 and the Qanun-e-Shahadat, 1984, would not be applicable in stricto senso but the principles embodied therein sans technicalities could be applied by the Family Court to advance the ends of justice provided there is no conflict or inconsistency with the provisions of the West Pakistan Family Courts Act, 1964. In support, reference can be made to Akhtar Ali Said Bcha v. Mst. Naheed Bibi (PLD 2003 Peshawar 63) wherein it was observed that "The purpose of enacting Family Courts Act is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. The provisions of C.P.C. are not applicable in stricto senso to proceedings before the Family Court by virtue of section 17 of the West Pakistan Family Courts Act, 1964. The purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities. It is settled proposition of law that Judge Family Court is competent to regulate its own proceedings as the West Pakistan Family Courts Act, 1964, does not make provision for every eventuality and unforeseen circumstance."

8. From the above citation, it is clear that although provisions of Qanun-e-Shahadat are not applicable in family courts proceedings but the principle laid down in the Qanun-e-Shahadat can be followed. Hence, it is necessary for a family court to follow the principle or jurisprudence of evidence at the time of recording evidence. It is the jurisprudence of the law of evidence that cross-examination is a litmus test of the truthfulness of the statement made by a witness on oath in examination-in-chief, as such the objects of cross-examination are:

a) to demolish or decline the evidentiary value of the witness by his adversary;

b) to extract the true facts in favour of the cross-examining lawyer's client from the mouth of the witness of the opponent party;

c) Impeaching the trustworthiness and integrity of witness to show he is unworthy of belief; and

d) to shake his credibility by injuring his character.

9. It is now clear that jurisprudence of law allows that the questions to be addressed in the course of cross-examination as to test the veracity of witness and to discover who he is and what is his position in life. The principles laid down for examination-in-chief and cross-examination are altogether different. Since impeachment of a witness is required; therefore, sufficient liberty has been provided to a party conducting cross-examination like asking of leading question and confronting the previous statements of the witness whether the same pertains to some other proceeding or event, no doubt subject to relevancy with the issue. It is worth noting that the word 'examination-in-chief' and 'cross-examination' are not distinctly mentioned in the Family Court Rules but the Family Courts used to follow the same, meaning thereby that though the provisions of Qanun-e-Shahadat are not applicable but the basic principle of evidence are to be considered by a Family Courts during recording of evidence, as such the same cannot be overlooked or avoided under the garb of non-applicability of Qanoon-e-Shahadat Order. Nevertheless, as it is a settled principle of cross-examination that a witness may be confronted with his or her previous statement. Email or other digital communication of a witness comes under the definition of previous statement, as such the witness may be suitably confronted during cross-examination with such digital document. After inception of electronic mail and in the era of social media, the mode of communication has been amazingly changed, and the courts should not be oblivion of the abundance of flow of communication and information through these mediums. If it is established that any information communicated by a person from his account through email, Facebook, WhatsApp, twitter etc., the same may conveniently be referred during cross-examination. It is my considered view that even the courts can use electronic mail and WhatsApp for communication to a party in respect of service etc., as these are the medium from which the delivery of message and its perusal by the party can easily be established. Thus any email written by a witness or addressed to him and received in his inbox is his document and the same can be used to confront him by just referring it or producing it if attention of witness is required to draw toward certain portion of the document. Even any other sorts of digital documents in the shape of messages, photographs or movie clips can be referred and used during cross-examination of a witness, provided it is established that the same had been shared by him on social media from his personal account.

10. As far as, the annexing of documents with the pleadings is concerned that is a legal requirement but its purpose is altogether different. Such documents may be used during cross examination but the intention of the legislature to annex them or refer in a list is entirely different. In Section 7(3)(i), the clause 'a plaintiff sues or relies upon a document' indicates that only those documents are required to be produced by the plaintiff on which his claim rests, so that other side may comprehend his claim properly and tailor his defence. Similarly, the defendant in a family suit has to disclose all the documents, relied by him but it does not mean that the cross-examination of a witness is restricted to those documents only. As per settled principle of evidence, if a witness speaks in a different tone during examination in chief or cross-examination, his adversary has a full right to confront him either from his previous statement or his own document. I am of the view that it is least necessary to file an application for additional evidence regarding some documents intending to produce and confront a witness during cross-examination, if those documents were originated or initiated by him. The trial Court has discarded the production of e-mail considering the same as secondary evidence by holding that it is just a photocopy or printout. I am of the view that during cross-examination, if e-mail is referred as a previous statement of the witness, its production is not necessary. However, if the lawyer conducting cross-examination is having an intention to draw attention of the witness towards the content or some portion of the e-mail then its production is necessary during cross-examination of the witness as exhibit and marking of the portion of email so confronted. It is rational that the learned trial judge was sceptical regarding admissibility of email as evidence, if he has not faced such situation before. In fact, email is a form of documentary evidence and the same can be admitted as evidence in court in the same way as other forms of documentary evidence. However, the reliability of such email will always be a question and the same will be subject to scrutiny. An email can be produced as a document in shape of hard-copy i.e. printout, but one may not consider an email or other form of electronic text message as a 'smoking gun' in favour of his case. This can be a particular issue and measures should be taken to protect the integrity and authenticity of email by digital signature (if available) and encryption etc. and insuring that the same should be available in his inbox or transferred to some other mailbox in his email account so that its genuineness can be established in case of denial. The major evidentiary issue for a trial judge arises in respect of a private digital communication to reach at a conclusion that the texts of electronic document were genuinely written by the other party or not. Besides getting some technical and expert assistance, a judge can overcome this problem of authentication of an e-mail or text message through different ways, which are;

i) the adverse party admits that the texts were written by him.

ii) a witness may come in witness box and say that he saw the message created.

iii) characteristic of the message itself speaks that it was created by the author for whom it is claimed as author of the same.

iv) circumstances of the case proof that it was created as claimed.

v) a 'reply authentication' specially for e-mail, i.e. an electronic reply showing both parties e-mail addresses and text messages clearly indicating that the same was sent in response to the text message that was initially sent.

11. Nevertheless, reliability of email or other electronically generated documents may be subject to attack but a party cannot be restrained to present it in the Court as a documentary evidence. As far as confrontation to a witness during cross-examination is concerned, in view of the above discussion, the same is also allowed if emails or other digital documents are generated or originated by the witness, who is facing cross-examination or on his behalf. The ultimate outcome of the above discussion is that the petitioner may confront the respondent with her previous statement either oral or in shape of document including digital document like email or any other form of electronically generated or created document communicated through the medium of internet. With these observations, the instant petition is allowed and the impugned orders are set aside. The petitioner may confront the respondent in the witness box during cross-examination with all the digitally created and communicated documents by her through e-mail or social media subject to relevancy of the same. The learned Family Court may form its opinion regarding the admissibility of the same on the parameters mentioned above. Petition allowed.

ZC/T-18/Sindh Petition allowed.

بیانِ حلفی بطور شہادت - جرح نہ کرنے کا اثر - بیانِ حلفی یا تحریری بیان بذاتِ خود قانونی اور معتبر شہادت نہیں ہوتا. اگر بیانِ حلفی یا تحریری بیان پر جرح نہ کی جائے تو اسے شہادت کے طور پر زیرِ غور نہیں لایا جا سکتا۔

🔴 2020 Y L R 1586 [Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD ARIF---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE-VIII, KARACHI WEST and 2 others---Respondents

Constitutional Petition No. 2342 of 2018, decided on 10th January, 2020.

📍(a) Islamic law---

----Maintenance for wife and children---Principles---Husband is under obligation to maintain his wife and children.

📍(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 132--- Affidavit-in-evidence---Failure to cross-examine---Effect---Affidavit-in-evidence/Written statement does not constitute or otherwise cannot be treated as a legal and valid evidence---Affidavit-in-evidence/Written statement if not cross-examined has to be excluded from consideration.

📍(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Concurrent findings of two courts below---Scope---High Court under Constitutional jurisdiction cannot interfere in concurrent findings of two courts below otherwise it may go beyond scope of Art. 199 of Constitution.

📍(d) Family Courts Act ( # # of 1964)---

----S. 5, Sched.---Maintenance, recovery of---Concurrent finding of facts by two courts below---Marriage not consummated---Petitioner was ex-husband of respondent and he after Nikah, did not get Rukhsati of respondent for 13 years---Respondent sought Khula and suit for past maintenance was decreed in her favour by Family Court---Judgment and decree passed by Family Court was maintained by Lower Appellate Court---Validity---Rukhsati of respondent since her Nikah on 24-12-1999 till her Khula on 10.04.2013 under decree of court had not taken place and marriage was also not consummated as such---Respondent was entitled to claim for her maintenance as upon performance of her Nikah, she had attained status of wife and remained in such capacity till 10-04-2013 when she was granted Khula by Family Court---Such release of respondent did not affect liability of husband during subsistence of marriage---Petitioner did not take any positive/concrete steps for taking Rukhsati of respondents---Respondent was not only subjected to 'cruel behavior' but was also deprived for almost 13 years to enjoy a happy married life---Both courts below had rightly observed that a great injustice was caused to respondent who waited for Rukhsati for a long time of almost 13 years and got married at the age of 36 years but only after passing of decree for Khula---High Court declined to interfere in concurrent judgment and decree passed by two courts below as same were not suffering from any illegality, irregularity, infirmity, misreading or non-reading of evidence/ materials available on record---Petition was dismissed in circumstances.

Mst. Rubina Bibi v. Muhammad Bashir Ahmed 2006 YLR 633; Syed Rashid Ali Shah v. Mst. Haleema Bibi and 2 others PLD 2014 Pesh. 226; Mst. Farhat Jabeen v. Muhammad Safdar 2011 SCMR 1073; Muhammad Ilyas and others v. Muhammad Sharif and others 2001 CLC 1194; Messrs Society Oil Dealers, Karachi v. District Judge, Karachi and another 2003 MLD 205; Abdul Majeed v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391; Hakim-Ud-Din through L.Rs and orthers v. Faiz Bakhsh and others 2007 SCMR 870; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719 and Muhammad Sardar and 3 others v. Federal Land Commission through the Chairman Inland and 27 others 2004 YLR 1689 ref.

Khudinoor v. District Judge Pashin and 2 others 2017 YLR 2349; Mst. Shamim Akhter v. Additional District Judge, Sialkot and another 1991 CLC 1142 and Mst. Farah Naz v. Judge Family Court Sahiwal and others PLD 2006 SC 457 rel.

📍(e) Family Courts Act ( # # of 1964)---

----S. 19---Appeal---Court-fee, non-affixation of---Effect---Petitioner did not pay requisite court fee on memo of appeal and same was dismissed by Lower Appellate Court--- Validity--- Lower Appellate Court had rightly dismissed appeal in circumstances.

Hameeda Begum v. First Additional District Judge and another 1988 CLC 1645 rel.

Altamash Arab and Muhammad Rehan for Petitioner.

Nemo for Respondent No.2.

Mian Muhammad Akram for Respondent No.3.

Dates of hearing: 23rd October and 29th November, 2019.

🔴 JUDGMENT

AZIZ-UR-REHMAN, J.---Through this Constitutional Petition No.S-2342 of 2018, the Petitioner herein viz. Muhammad Arif son of Ali Asghar, has called in question judgment dated 30.08.2018 [Annexure 'A' to the Memo of Petition], passed by the learned VIIIth Additional District and Sessions Judge, Karachi-West, in Family Appeal No.101 of 2017 [Muhammad Arif v. Mst. Shahnaz], whereby, the 'judgment' and 'decree' both dated 16.09.2017, [Annexure 'E/3' to the Memo of Petition], passed in Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], by the learned IXth Civil and Family Judge Karachi-West, were 'maintained' and consequently, Family Appeal No.101 of 2017, was dismissed, however, with no order as to cost. The prayer sought in the Memo of Petition [In short MoP], reads as follows:

i]. to set aside the impugned judgment dated 30.08.2018 passed by the learned Additional District and Sessions Judge No.8 at Karachi West in Family Appeal No.101 of 2017, and so also the judgment and decree dated 16.09.2017, passed by learned IXth Family Judge at Karachi West in Family Suit No.153 of 2012 and hold that the Petitioner is not liable to pay any maintenance to the Respondent No.3.

ii]. To call for the record, paper and proceedings of the learned IXth Family Court at Karachi West in Family Suit No.1653 of 2012 as well as the learned Additional District and Sessions Judge No.8 at Karachi West in Family Appeal No.101 of 2017.

iii]. To grant such other reliefes as this Hon'ble Court being just and proper in the circumstances of the case.

iv]. To grant cost of the petition.

2. Resume of the facts forming the background of the instant Petition is that; the 'Nikah' of Respondent No.3 herein [Plaintiff] namely Mst. Shahnaz daughter of Khalil-ur-Rehman was performed with the Petitioner herein [Defendant], namely Muhammad Arif son of Ali Asghar on 24.12.1999, at Karachi, according to Muslims Personal Law against the 'dower amount' of Rs.30 000/- but Rukhsati, never took place.

3. Per assertions made in the plaint, at the wish and inducement of the Petitioner herein [Defendant] and his parents, 'Nikahnama' of such marriage was also registered, as it was much needed/required by the Petitioner, for arranging a house/residence from the Petitioner's employer viz. Pakistan Atomic Energy Commission of Pakistan, Islamabad. As per pre-condition imposed by the employer, according to which, only a 'married employee' was eligible to apply and get a residential accommodate/ House/Plot in Islamabad, on the basis of a registered 'Nikahnama'.

4. The Petitioner herein [Defendant] succeeded in obtaining a residence/house from the employer but avoided to take the 'Rukhsati' of Respondent No.3 herein [Plaintiff]. Instead, the Respondent No.3 herein [Plaintiff] and her other 'family members' were kept assured but on the basis of false hopes and promises. The Petitioner herein [Defendant], through 'lame excuses', such as; some time there is a winter season, sometime there is a 'summer season' and sometime, there is a 'holy month of Ramzan', 'Moharram' etc. etc. repeatedly delayed the 'Rukhsati', of the Plaintiff [Respondent No.3 herein], in a very clever manner.

5. Later on, when the parents of Respondent No.3 herein [Plaintiff] again asked the Petitioner herein [Defendant], to arrange 'Rukhstati' of their daughter namely Ms. Shahnaz then, also the Petitioner herein [Defendant], very cleverly, postponed the 'Rukhsati' of Respondent No.3 herein. Thereafter, about six months back, the father of the Petitioner herein [Defendant], came to Karachi, but for the purpose of attending a 'funeral ceremony' of a relative/brother-in-law. During such period, as per Petitioner's version, the Petitioner's father stayed at the house of a 'common relative'. During such stay at Karachi, he also met with the father Respondent No.3 herein [Plaintiff's] and, as asserted, he had assured for the arranging of 'Rukhsati' i.e. after 40 days but this time, as well, the Rukhsati of Plaintiff [Respondent No.3 herein], as promised, could not take place. The Respondent No.3 herein [Plaintiff] and her parents, on account of such continued 'breach of promises' and 'routine excuses', not only suffered 'mental agony', 'defamation' but also faced insult in brathery/closed and known relatives, who were not only making jokes but also they were then raising fingers for and on account of non-taking place of 'Rukhsati' of Mst. Shahnaz daughter of Khalil-ur-Rehman since, 24.12.1999. According to Respondent No.3's stand, mother of Respondent No.3 herein [Plaintiff] thereafter, also died/expired, as alleged, due to 'shocks'/'worries' caused to her and her family members by the Petitioner herein [Defendant] and his parents, that is to say, since, 24.12.1999, when 'NIKAH' of the Petitioner herein [Defendant], was performed with Respondent No.3 herein [Plaintiff].

6. Under the foregoing scenario, the Petitioner herein [Defendant] was thus called upon through a Legal Notice [Exh.'P/1-C'] by Plaintiff's counsel to immediately pronounce 'Divorce', to the Respondent No.3 herein [Plaintiff] i.e. within seven [7] days, from receipt of such Legal Notice dated 24.09.2012, failing which, Respondent No.3 herein, [Plaintiff] would have no 'alternate' except to seek appropriate remedy by way of approaching a court of law, as well as, to other competent authorities including Pakistan Atomic Energy Commission of Pakistan, Islamabad etc. regarding the Defendant's-Petitioner's illegal, un-justifiable and immoral acts. The Petitioner herein, despite receipt of such legal notice, however, failed to give any positive response.

7. On account of 'passive attitude'/ 'dis-inclined behavior' of Petitioner [Defendant], in the heart of Respondent No.3 [Plaintiff], hatred was gradually developed thus she finally compelled to approach the court of learned Xth Family Judge, Karachi-West, by way of filing a Suit on 27.11.2012, for 'Dissolution' of her Marriage by way of 'Khula', and recovery of 'past maintenance' with the prayers as follows:-

1) It is therefore, prayed that this Hon'ble Court may pleased to pass a Judgment and decree in favour of the Plaintiff and against the Defendant, thereby dissolving the marriage of the Plaintiff with the Defendant, thereby declaring the marriage of the Plaintiff with the Petitioner herein [Defendant] or in the alternative , the Plaintiff may be awarded KHULA for which she is ready forego her Dower amount.

2) To direct the Defendant to pay the past maintenance of the Plaintiff at the rate of Rs.30,000/- per month since 24-12-1999 which is approx. calculated to Rs.46,80,000/- for last 156 months and also till she get Khulla, further the Defendant be directed to pay maintenance in addition to the abovementioned maintenance at the rate of Rs.2000/- per month already settled in between the parties in Nikkah Nama against 156 months i.e. total amounting to Rs.3,12,000,00/- and onwards till disposal of suit.

3) Costs of this suit, any other/further relief which this Honorable Court may deem fit and proper.

8. Upon service, the Petitioner herein [Defendant], filed his 'written statement' wherein, the 'allegations levelled' and 'adverse assertions' made in plaint were denied/controverted. In the 'written statement' however, the factum of 'NIKAH' on 24.12.1999, according to Muslim Personal Law, against the Dower amount of Rs.30,000/- [Rupees Thirty Thousand only], was not denied. Besides, 'Registration' of NIKAH and receiving the Registered Copy of 'NIKAHNAMA' [Exh. 'P/1-C'] was also not denied.

9. Per Petitioner's stand, he is still residing in a 'Government Hostel', and has never obtained any accommodation from the 'Employer Department' [Dr. A.Q. Khan Research Lab Kahutta], because of the Plaintiff's 'non-co-operation' though, the Plaintiff is a 'wedded wife' of the Defendant [Petitioner herein].

10. As averred in the 'written statement', the Petitioner [Defendant], has neither kept the Respondent No.3 herein [Plaintiff] nor her parents, as alleged, on false hopes in respect of Plaintiff's Rukhsati. Per Petitioner's stand, he and his family always wished/ wanted to take the 'Rukhsati' of the Plaintiff namely Ms. Shahnaz after 'performance of her Nikah' on 24.12.1999, with Petitioner herein [Defendant]. Per assertions, Defendant's father and other family members regarding 'Plaintiff's Rukhsati', though had made requests to the Plaintiff's family members but they despite such requests did not agree for the Rukhsati of Respondent No.3 [Plaintiff] since, 24.12.1999, when her Nikah was performed with the Petitioner [Defendant]. Per Petitioner's stand, Plaintiff's father in fact, before Rukhsati of Respondent No.3 [Plaintiff] wanted first to arrange the marriages of his elder daughters, construct a house in Orangi Town, Karachi and set-up a transport business.

11. During the entire period i.e. since, the performance of Plaintiff's 'Nikahnama' with the Petitioner herein [Defendant] on 24.12.1999, it was the Plaintiff's father, who wasted long time for fulfilling of his wishes. The 'Rukhsati' of the Respondent No.3 herein [Plaintiff], namely Mst. Shahnaz daughter of Khalil-ur-Rehman thus became a hurdle for the Petitioner herein [Defendant], as well as, his family. Per Defendant's version/stand, no delay, 'irreparable losses', 'mental agony' and/or 'great inconvenience', as alleged, in the plaint, was ever caused to Plaintiff, as Petitioner [Defendant], is not only a law abiding citizen of Islamic Republic of Pakistan but also a responsible Government employee. Per version of the Petitioner herein [Defendant] sometime in the Month of April, 2012, when father of Petitioner herein [Defendant], came to Karachi along with the Defendant's uncles namely [i]. Muhammad Ashraf and [ii]. Muhammad Riaz for attending a 'funeral ceremony' of his brother-in-law namely Khursheed [late] then, also after the attending the 'funeral ceremony', they had also gone to the house of Plaintiff's father, situated in Orangi Town, Karachi, with a request for the Plaintiff's Rukhsati but then, instead of allowing the Rukhsati, a promise for allowing Rukhsati was made but only after the Chehlum of Khursheed [late], is over.

12. With regard to the death of Plaintiff's mother, per Defendant's stand, she did not expire much-less, to say due to 'shock'/ 'worries' caused to her on account of Plaintiff's 'Non-Rukhsati', rather to say, she had died, on account of acute 'blood pressure' and 'heart attack' in a Hospital. The 'funeral ceremony' of the Plaintiff's mother, was also attended by the Defendant [Petitioner herein], as well as, his mother who is a real sister of the Plaintiff's deceased's mother. According to Defendant's version, this time, as well, after ten [10] days, from the death of Plaintiff's mother, the Defendant's mother had asked for 'Rukhsati' of the Plaintiff [Respondent No.3 herein], but then, also, as asserted, father of the Plaintiff had said that the matter of 'Rukhsati' would be dis-cussed later-on i.e. after Chehlum of Plaintiff's mother. On saying so, the Petitioner [Defendant] left for Peshawar, without taking 'Rukhsati' of Mst. Shehnaz daughter of Khalil-ur-Rehman.

13. Thereafter, some weeks' later, family members of the Defendant again requested to Plaintiff's father to give the 'Rukhsati' of Plaintiff but then, also the 'Rukhsati' of the Plaintiff was denied by demanding/imposing some new conditions i.e. [i]. 'Dower amount' must be of Rs.10 Lacs [ii]. 'Monthly Maintenance' amount must be of Rs.10,000/- per month and [3]. The 'gold ornaments' must be of 15 Tolas. Otherwise, the 'Rukhsati' of his daughter [Plaintiff], would not be allowed. Later-on, per Petitioner's stand, a letter dated 07.2.2012, was sent through registered A/D to Plaintiff's father, in which a request for effecting 'Rukhsati' of Plaintiff [Respondent No.3 herein], was made/reiterated. Moreover, in the said letter of 07.02.2012, imposition of new conditions was stated to be against the 'Sharia'. The father of Plaintiff, somehow, was no more interested in the 'Rukhsati' of the Plaintiff, though in this regard, repeatedly requests were made on the part of Defendant's kith and kin but to no avail.

14. In the legal notice dated 27.9.2012 [Exh.'A/1-B'], received to Defendant [Petitioner herein], from Plaintiff's side, a clear demand for 'Divorce' of the Plaintiff [Respondent No.3 herein] was made. The Defendant's father, thereafter, came to Karachi, along with his relatives namely [i] Muhammad Bashir and [ii]. his son named Shakeel Ahmed who also went to the house of the Plaintiff's father with an 'aim to resolve' the issue/dispute of 'Rukhsati' of the Plaintiff [Respondent No.3 herein] but then father of the Plaintiff stated/said that he has taken a Swear [QASAM] not to give 'Rukhsati' of Plaintiff to the Defendant. In this regard, as asserted in the 'written statement', the Petitioner's father had also approached some other 'relatives' / 'family members' of Plaintiff's father i.e. [i]. Shah Zaman who is the brother of Plaintiff's father and [ii]. Shafiq-ur-Rehman. Per Defendant's versions, they had also requested to the Plaintiff's father for allowing 'Rukhsati' of the Plaintiff [Respondent No.3 herein], but father of Respondent No.3 [Plaintiff] did not bother to even consider such requests.

15. In the 'written statement', it has further been asserted that after the Defendant's 'Nikah' his father and other family members always used to send 'gift items', as well as, 'cash amount' for/to the Plaintiff [Respondent No.3 herein] i.e. on each 'occasion of Eid' etc. as the Defendant's sister is also married at Karachi, as such, when the Defendant's family sent anything to his sister then, gift items, were also sent for the Plaintiff [Respondent No.3 herein], that is to say, sometime by hand and sometime through money order, despite the fact that the Plaintiff's 'Rukhsati' had not taken place. Per 'averments' made in the 'written statement', the Plaintiff is not entitled for any 'maintenance' as claimed, in Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], because it was the Plaintiff and her family, who not only refused the 'Rukhsati' but the Plaintiff herself had also refused/ avoided the performance of 'marital obligation' with the Defendant. The Plaintiff [Respondent No.3 herein], as such, is not entitled for recovery of any 'past maintenance' as claimed.

16. Later on, when Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], came-up before the Court of learned Xth Family Judge, Karachi-West, for 'pre-trial' proceedings on 10.4.2013 then, the following order was passed :-

Case called. Today the matter is fixed for pre trial proceedings. The plaintiff is present with her counsel so also the defendant counsel is present. The plaintiff stated that she does not want to live with the defendant at any cost and request for dissolution of marriage by way of khulla and is ready of to forego her dower amount Rs.30,000/- which is still unpaid to her and rukhsati did not take place. On the other hand, the defendant in his written statement admitted that he had not paid the dower and his counsel contended that any appropriate order may be passed. [Emphasis Supplied].

The facts of the plaintiff case are the plaintiff filed a suit for dissolution of marriage by way of khulla and recovery of past maintenance against the defendant.

It is pertinent to mention here that in view of the amendment in section 10 of the W.P. Family Courts Act, 1964, Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage for with and shall also restore the husband Haq Mehar received by the wife in consideration of marriage at the time of marriage.

Since, the dower is not disputed, thus no question of returning the same arises. Hence I hereby declare the pre-trial proceedings failed and dissolve the marriage between the plaintiff and defendant and from the pleading of parties following issues were framed:--

1. Whether no cause of action accrued to the plaintiff? [OPD]

2. Whether the plaintiff is entitled for maintenance, if so, at what rate and from which period?

3.What should the decree be?

Let the 'preliminary decree' be prepared and sent to the concerned authorities for information and compliance.

Announced in open court

Given under my hand and the seal of the court

This 10th--------day of--------April ------2013

Sd/-

[Mrs. Shehnaz Bohyo]

Xth Family Judge

Karachi West.

17. In compliance with the Order dated 10.4.2013, a 'PRELIMINARY DECREE', was accordingly prepared/ passed on 10.4.2013. The marriage of the Plaintiff [Respondent No.3 herein], namely Mst. Shahnaz daughter of Khalil-ur-Rehman with the Defendant namely Muhammad Arif son of Ali Asghar was thus dissolved. The Plaintiff in Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], thereafter, it appears, had filed her own 'Affidavit-in-Evidence' on 27.11.2012, wherein, the 'averments' and 'assertions' vis-a-vis 'dissolution of her marriage' with Defendant [Petitioner herein] and he claim pleaded/put forward for 'MAINTENANCE' in plaint were 're-affirmed'/'reiterated'. Later on, the Plaintiff's 'Examination-in-Chief' and 'Cross-Examination' was recorded on 17.9.2013. In the Plaintiff's 'Examination-in-Chief', the deponent namely Mst. Shehnaz [PW-1] besides, producing here 'Affidavit-in-Evidence' as Exh 'P/1-A' also produced here 'Nikahnama' dated 24.12.1999, 'TCS Receipt' and 'Legal Notice' dated 24.09.2012 as Exh. 'P/1-B' and Exh. 'P/1-C'. Thereafter, the evidence of Plaintiff's 2nd witness namely Muhammad Saleem ['PW-2'], was recorded on 12.11.2013 and thereafter, Plaintiffs side of evidence was closed.

18. The Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif] thereafter, was posted for Defendant's side of evidence on 02.12.2013. On 02.12.2013 and thereafter, on so many dates right upto 27.08.2014, the Family suit was adjourned for one reason or the other. On 27.08.2014, an Application for re-opening of the Plaintiff's side of evidence was filed, as then, the Plaintiff wanted to examine a 3rd witness namely Muhammad Shafiq. On 05.10.2019 the Defendant filed, objections in response to the Plaintiff's such Application. On 29.01.2014 the said application was heard and allowed. For ready reference, Order dated 29.01.2016 is reproduced herein-below:-

"By this order, I intend to dispose of an application for re-opening the side of the Plaintiff to examine her witness namely Muhammad Shafiq, which is filed by Plaintiff through her counsel notice of said application was duly served upon defendant learned counsel for Plaintiff contended that this Hon'ble court may be pleased to reopen her side of Plaintiff of witness her side of evidence and permit her to examine her witness namely Muhammad Shafiq in this suit as earlier due to bonafide mistake of advocate for Plaintiff he closed her side of evidence but later on when the Plaintiff informed her advocate that she wants to examine her important witness Muhammad Shafiq who is brother of the Plaintiff and he can depose properly in respect of documents which were filed by the defendant in this case with his written statement hence he is important witness therefore he may be examined in the interest of Justice earlier her father was cited as such witness but he then. Hence, now her brother is important witness in this case.

Learned counsel for the Plaintiff relied upon the case reported as Umar Hayat v. Additional District Judge and others (2004 SCMR 1637 Supreme Court of Pakistan), Mrs Shahnaz Begum and 4 others (1995 CLC 327 LHR), Mrs. Hidayat Khatoon v. Munir Ahmed and others (1999 MLD 2153 KHI), Abdul Khaleeq v. Rashid Ahmed (1999 MLD 2156 LHR) respectively.

On the other hand, the defendant filed counter affidavit through his counsel wherein he submitted that application for reopening the side of the Plaintiff to examine her witness is not maintainable as the same had been filed without mentioning the proper section of law. He next stated that the name of deposed witness had not been mentioned in the list of the witnesses of the Plaintiff. He next submitted that reason had not been explained in the application that the said witness is necessary and affective. He next submitted that the application is only filed to pressurized the defendant. He next submitted that the said application had been filed without any valid reasons. He further stated that the said application had been filed without any valid reasons. He further stated that the said application is groundless and the same is liable to be dismissed.

Considering the above facts and circumstances, it would be better to give ample opportunity to the Plaintiff to contest the matter rather than to decide the case on technical ground as law would favour adjudication on merits. With regard to contention of production of the witness the West Pakistan Family Courts Act, 1964 could not be confined to Plaints only both Plaintiff and defendant could be allowed to produce evidence beyond the list appended with the pleadings. Thus, keeping this view in the interest of justice and to decide the case on merit the Plaintiff application is hereby allowed subject to payment of a sum of Rs.500/- as cost by the Plaintiff to the defendant and order dated 12-11-2013 is hereby recalled, the Plaintiff is also allowed to produce the witness namely Muhammad Shafiq to establish her claim. The Plaintiff is directed to produce the witness till the next date of hearing without fail. [Emphasis Supplied]."

19. On granting the aforesaid Application on 29.01.2016 the 'affidavit-in-evidence' of Plaintiff's 3rd witness namely Muhammad Shafiq son of Khalilur Rehman ['PW-3'], was filed on 16.02.2016. Lateron, on 17.04.2016, his evidence was also recorded. Thereafter, Plaintiff's side of evidence, i.e. after recording of Plaintiff's evidence ['PW-1'] and other two [2] witnesses i.e. ['PW-2' and 'PW-3'], was closed in presence of Defendant's counsel and then, the case was put-up to 23.04.2016, for Defendant's side of evidence. On 23.04.2016, for want of Defendant's side evidence, the case was put-up to 29.04.2016. On 29.04.2016, again none was present from the Defendant's side. Nonetheless, then, also as 'last' and 'final' chance, the case was adjourned to 16.05.2016. Once again for the same purpose, the case was adjourned to 30.05.2016. Again on 30.05.2016 as a 'last' and 'final' chance, the case was adjourned to 21.07.2016. On 21.07.2016, again the case was put-up to 11.08.2016 for Defendant's evidence. Even, thereafter again and again, the case was posted/fixed for Defendant's evidence that is to say from 11.8.2016 till 26.11.2016.

20. From the record, it reveals that later on, the Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], was transferred from the Court of learned VIIIth Family Judge, Karachi-West, to the Court of learned IXth Civil/Family Judge and JM, Karachi-West, vide order dated 23.11.2016, passed by learned District and Sessions Judge, Karachi-West. On transfer of the suit, when the Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], came-up before the Court of learned IXth Civil/Family Judge and JM, Karachi-West, on 02.12.2016, for Defendant's side of evidence then, again, as a 'last' and 'final' chance, the Family Suit, was adjourned to 16.12.2016, for recording of Defendant's evidence. Even thereafter, on 10.12.2016, the Defendant, failed and/or avoided to come forward and record his evidence. The Defendant's side of evidence, under the foregoing circumstances, was 'closed' and resultantly, the suit was fixed on 14.12.2016 for 'POST TRIAL PROCEEDINGS'. Lastly, on 17.01.2017, when the Family Suit No.1653 of 2012 came-up before the Court of learned IXth Civil/Family Judge, Karachi-West, then, the 'Post Trial Proceedings' were declared as failed. For ready reference, order dated 17.01.2017, is reproduced herein-below:-

"Case called. Counsel for plaintiff is present. None is present from defendant side. Perusal of record shows that matter was fixed for post-trial proceedings but neither Plaintiff nor Defendant appeared before this Court. Therefore, post-trial proceedings failed. Now the matter is fixed for final arguments on next date of hearing."

21. As a routine, even on 17.01.2017, none was present from the Defendant's side. Nonetheless, then, the case was posted for 'arguments' on 17.01.2017. Per record, thereafter, for the same purpose, on nine [9] occasions i.e. from 17.01.2017 to 17.04.2017, the case was adjourned. As per earlier 'LATE DIARY' dated 10.12.2016, the Defendant [Petitioner herein], had opted to file an Application for re-opening of Defendant's side of evidence/ recalling of order dated 10.12.2016, whereby, not only the Defendant's side of evidence was closed, but the Application for re-opening the Defendant's side of evidence was also dismissed. The relevant part of Order dated 17.01.2017, reads as follows:--

..

"The learned counsel for the defendant filed an application for adjournment where it has been on record that since long defendant is absent and since last four dates of hearing matter is fixed for evidence of the defendant but on each and every date an adjournment application is filed on the date of hearing. The defendant if did not appear his side shall be closed. Last chance was then given but today again, is the same position. The application filed by the learned counsel for the defendant stands dismissed and the side of defendant is hereby closed.

22. The Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif] thereafter, was coming-up for 'final arguments'. Lastly, on 17.04.2017, when the said suit was fixed for 'final arguments', then the Defendant's counsel, opted to file another Application for re-calling/setting aside of order dated 10.12.2016, as being evident from the Late Diary of 17.4.2016. The said Application, later on, was 'allowed' on 27.4.2016, however, subject to a condition that the Petitioner herein [Defendant], be produced within fifteen [151 days for recording his evidence and in case of his 'failure' heavy cost shall be awarded. Then, as appears, the case for such purpose, was adjourned to 13.05.2017.

23. On 13.05.2017, counsel for the Defendant's, filed an 'Affidavit-in-Evidence' and copy thereof, was supplied to the Plaintiff's counsel. The matter, thereafter, was adjourned to 29.05.2017, for recording of Defendant's evidence but again, as a 'last' and 'final chance'. Being relevant, Order dated 29.05.2017, is also reproduced herein-below:--

Learned counsel for defendant filed application for adjournment. Learned counsel for the plaintiff also present. The photocopy of the certificate also annexed with the application. It shows that the matter is pending since 2012 and defendant filed his affidavit in evidence on 13.5.2017. In the above circumstances the application is allowed with the condition that on next date of hearing if the defendant does not appear his side shall be closed and cost of Rs.5000/- shall also be imposed [Emphasis Supplied].

24. Even thereafter, the Family Suit was adjourned on 'several occasions' i.e. 04.07.2017, 26.07.2017 and 09.08.2017, for want of Defendant's evidence. Some of the 'more relevant' trial court's diaries i.e. 10.12.2016, 17.01.2017, 25.04.2017, 27.04.2017, 29.05.2017 and 17.08.2017, are reproduced herein-below respectively:-

a. 10.12.2016

Case called. Counsel for Plaintiff is present. Lr. Counsel for defendant is present but defendant called absent. Order passed on separate sheet. Defendant side is closed and matter adjourned to 14.12.2016 for post trial [Emphasis Supplied].

b. 17.01.2017

Case called. Counsel for Plaintiff is present. None present for defendant side. Order passed on separate sheet. Post trial proceedings failed and matter adjourned to 24.01.2017 for final arguments. [Emphasis Supplied]

c. 25.04.2017

Counsel for both parties are present. Counsel for Plaintiff received copy of application for re-call/set aside the order dated 10.12.2016 filed by the counsel for defendant. Adjourned to 27.04.2017 for hearing on said application. [Emphasis Supplied].

d. 27.04.2017

Counsel for both parties are present. Arguments heard on application for re-call/set aside the order dated 10.12.2016 filed by the counsel for defendant. Application is allowed with the condition that within 15 days defendant be produced in case of failure heavy cost shall be awarded. Adjourned to 13.05.2017 for defendant evidence. [Emphasis Supplied].

e. 29.05.2017

Case called. Counsel for both parties are present. Counsel for defendant filed adjournment application. Detail order passed on said application and said application is allowed with the condition that on next date of hearing, if the defendant does not appear, his side shall be closed and a cost Rs. 5000/- shall also be imposed. Adj. to 04-07-2017 for cross-examination of defendant. [Emphasis Supplied].

f. 29.05.2017

Case called. Counsel for both parties are present. Counsel for defendant filed adjournment application. Detail order passed on said application and same is dismissed. The side of the defendant is hereby closed and matter upto 28.08.2017 for final arguments. [Emphasis Supplied].

25. On 16.09.2017, the Family Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], was consequently decreed in the following manner:

[i] The Defendant is directed to pay maintenance of the Plaintiff at the rate of Rs.25,000/- per month for 3 years [total Rs.900,000/-] within one month [excluding deposited amount, if any];

[ii]. Cost shall follow the events.

26. Not only the 'assertions' made in the plaint but the evidence led from the Plaintiff's side, in support of her stand/claim, as well, was gone un-rebutted, as Defendant [Petitioner herein] failed to establish his stand. The Plaintiff's Suit No.1653 of 2012 [Mst. Shahnaz v. Muhammad Arif], for recovery of 'past maintenance', against the Defendant, was consequently decreed on 16.09.2017, in the above manner by the learned IXth Civil and Family Judge Karachi-West, after giving the brief facts in the background as follows:-

"The Plaintiff performed Nlkah with the defendant on 21.12.1999 at Karachi per sharia against the dower amount of Rs.30000/- but Rukhsati never took over Nikahnama was registered by the defendant and said that if the Nikahnama will be registered he will seek accommodation for the residence as the defendant is working in Pakistan Atomic Energy Commission, Islamabad and as per their rules for the accommodation, he has to submit the registered Nikahnama. Therefore, father of the plaintiff continuously requested the parents of the defendant for Rukhsati but they always gave lame excuses and sought time. Lastly, before the filing of the present suit before 8 months, father of plaintiff strictly asked the defendant's family for Rukhsati but defendant refused to perform the Rukhsati after 13 years of the Nikah, Hence the present suit was filed by the plaintiff with the following prayers:

[a] To direct the defendant for performing of the marriage or alternative the plaintiff be awarded Khula in lieu of dower amount.

[b] To direct the defendant to pay the past maintenance of the plaintiff at the rate of Rs.30,000/- per month since 24.12.1999 which approx. calculated Rs.40,80,000/- for the last 156 months till the Order of the khula.

[c] To direct the defendant to pay maintenance in addition as per condition of Nikahnama at the rate of Rs.2,000/- per month of last 156 months.

[d] Any other or further relief[s] which this Honourable Court may be pleased to grant under the circumstances of the case.

The defendant was served and filed his written statement. The Defendant besides denying the adverse allegations admitted the factum of marriage. The defendant stated that the father of plaintiff was not ready for performing the Rukhsati of the plaintiff. Plaintiff has not performed any legal duty of defendant. It is all fault of the plaintiff that the Rukhsati could not take place. Lastly, he prayed for dismissal of the suit of the plaintiff.

27. Upon passing of Decree on 16.09.2017, the Defendant [Petitioner herein], instead of paying the 'decretal amount' somehow, feeling himself 'aggrieved' by and 'dis-satisfied' with judgment and decree, opted to file Family Appeal No.101 of 2017 [Muhammad Arif v. Mst. Shahnaz], before the court of learned Addl. District Judge No.VIII Karachi-West 'inter alia' with a prayer for setting aside the Judgment and decree dated 16.09.2017, whereby, the Plaintiff's suit was decreed. The prayers sought in the Memo of Appeal No.101 of 2017 [Muhammad Arif v. Mst. Shahnaz], reads as follows:--

In view of the above, it is therefore, very respectfully prayed that this appeal may very kindly be accepted and impugned judgment dated 16.09.2017 and decree may very graciously be set-aside in the interest of justice after calling record and proceedings from the trial Court.

It is further prayed that the matter may very graciously be remanded to the trial Court for decision afresh after hearing the appellant and opportunity may be given to the appellant.

Any other relief/relives this Hon'ble Court may be deem fit and proper in the circumstances, of the case in the interest of justice.



28. The aforesaid Family Appeal No.101 of 2017 [Muhammad Arif v. Mst. Shahnaz], when came-up before the learned VIIIth Addl. District Judge and Sessions Judge Karachi-West, on 30.08.2018, then, upon hearing learned counsel for the parties, the same was dismissed, however, with no order as to costs. The 'material portion' of the Appellate's court judgment dated 30.08.2018 passed in Family Appeal No.101 of 2017, reads as follows:

Primarily, under section 277 of Muhammadan Law, a husband is bound to maintain his wife unless she is too young for matrimonial in*******se, so long she is faithful to him and obeys his reasonable orders. In the present case, the nikahnama reveals that the girl/respondent was 18 years old and since no rukhsati had taken place, thus, the question of faithfulness and obeying the orders does not strictly applicable to the case. Even, if we consider the contention of the learned appellant's counsel that in absence of rukhsati no maintenance can be given, because no favour had extended from wife to husband, respectfully is misconceived. In his book namely Digest of Muhammadan Law Baillie has mentioned that;

"when an adult women, who has not yet removed to her husband's house, ask for maintenance, she is entitled to it unless he has called upon her to remove;"

This shows that mere fact of no rukhsati would not debar a wife from claiming her maintenance unless she refuses to remove herself from her father's house on the orders of husband. In this case, respondent took plea that it was on the part of appellant that he did not called for rukhsati and she waited for 13 years. From the available evidence, especially the letter of appellant's father, it is not difficult to deduce that there was some delay on the party of appellant's side, which the father of the appellant tried to clarify. The appellant on the other hand, though cross-examined, the respondent/plaintiff, but chose nor to lead his evidence or produce any witness, which goes against his plea. It cannot be ignored that in our society the age of a girl is very crucial for the purpose of marriage and it is not difficult to foresee what actually went through the lady who waited for 13 years after nikkah for her rukhsati and indeed from the record she got married in 2017 at the age of 36 years of age. Thus, without any doubt, I am of the view that appellant being husband of the respondent was bound to maintain his wife and in the given circumstances when he had failed to prove that rukhsati was on account of failure of respondent side.

The learned trial court had fixed the amount of maintenance at Rs.25,000/- per month, which in my view is not exorbitant keeping in view that appellant is serving in BPS-20 in a prestigious department and his salary would not be less than Rs.200,000/- at present. Though the amount so decreed by the court cannot be a compensation for a time respondent had suffered, but at least in accordance with law, some compensation would relieve her pain [Emphasis Supplied].

Moreover, the instant family appeal is also not maintainable on account of non-payment of Court fee. It is admitted position that appeal is not filed on any stamp paper. I have gone through the case law of Hameeda Begum v. 1st ADJ and another [1988 CLC 1645] whereby Honourable Divisional Bench hold that Family Court is in fact a civil Court and any appeal under section 14 of Family Court Act filed before District Court falls under Article 1 of Schedule 1 of Court Fees Act and in case of non-payment, the appeal is liable to be dismissed. Thus, on the basis of above observations, the point No.1 is answered as Negative.

(Point No.1 was/is to the effect and extent as to Whether the Judgment and decree dated 16.09.2017, passed by the learned 9th Family Judge Karachi-West, in Family Suit No.1653 of 2012 suffers from any illegality and require interference?'



29. The Petitioner herein, [Defendant], once again feeling 'aggrieved' by and 'dis-satisfied' with the 'concurrent findings' of the courts below, has now approached this Hon'ble court by way of filing the instant Constitutional Petition No.S-2342 of 2018, [Muhammad Arif son of Ali Asghar v. Additional Sessions Judge No. VIII Karachi West and others], 'inter alia' with a prayer that 'Judgment' and 'decree' passed by the learned IXth Civil and Family Judge Karachi-West [Annexure 'E/3' to the MoP] and maintained by the learned Additional District Judge, Karachi-West, through the 'impugned judgment' of 30.08.2018, herein [Annexure 'A' to the MoP], be set aside, as the same, besides being erroneous have been passed 'contrary to law' and without properly appreciating the 'materials'/'evidence' available on record. Further, both the impugned 'Judgments' and 'Decrees' (Annexure 'A' and 'E/3' to the MoP] even otherwise, are bad in law, as per the Petitioner's version, the 'MONEY DECREE', in fact has been passed without affording a chance to the Petitioner herein [Defendant], to 'examine' himself on oath.

30. On 29.10.2018, when the instant Constitutional Petition No.S-2342/ 2018 [Muhammad Arif son of Ali Asghar v. Additional Sessions Judge No. VIII Karachi West and others], came-up before this Court, on the Petitioner's urgent Application, then while, granting the urgent Application, the following order was passed:

29.10.2018

Mr. Altamash Faisal, Advocate for the Petitioner.

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1. Granted.

2. Deferred till the next date of hearing.

3. Granted subject to just all legal objections.

4&5. Per learned counsel for petitioner, petitioner and Respondent No.3 married on 24.12.1999, but no Rukhsati took place till this date. However, per learned counsel for the petitioner Respondent No.3 filed Family Suit No.1653/2012 in the Court of X Family Judge, Karachi West for dissolution of marriage by way of Khulla and recovery of past maintenance. Per learned counsel for the petitioner, petitioner contested the aforesaid suit but as petitioner was posted at Haripur, therefore, he could not contest the suit properly and his evidence was not recorded, though he filed affidavit-in-evidence but was not cross-examined before the trial Court. The trial Court on 16.09.2017 decided the matter and partly decreed the suit of the Respondent No.3 by judgment dated 16.09.2017. Per learned counsel for the petitioner, petitioner filed Family Appeal No.101/2017 against the aforesaid judgment in the Court of District Judge, Karachi West and by judgment dated 30.08.2018, learned Additional Sessions Judge No.8, Karachi West, dismissed the appeal. Learned counsel for the petitioner contends that the judgments of both the trial Court and Appellate Court are patently illegal as no Rukhsati took place therefore, awarding the maintenance is illegal and unlawful. Point raised requires consideration. Issue notice to the Respondent No.3. Subject to furnishing of surety to the extent of Rs.900,000/- [Rupees Nine Lacs], to the satisfaction of the Nazir of this Court, operation of the impugned judgments/decree shall remain suspended till the next date of hearing. [Emphasis Supplied].

Adjourned to 19.11.2018.

31. It appears that pursuant to and in compliance with order dated 29.10.2018, the 'requisite security' was not furnished. The 'non-furnishing' of the security/ surety is evident from the 'endorsement' of Deputy Nazir dated 23.11.2018 and 18.12.2018. Nonetheless, when later on, the matter came-up before the court on 21.05.2019, then, it was observed that order dated 29.10.2018, does not rule-out a 'Bank Guarantee' and resultantly Nazir of this Court was directed to accept the same. Accordingly, Bank Guarantee bearing No.ABL-176PB181025 dated 18.07.2019, M/s. Askari Bank Limited Sumbalhag Branch, 'Kahutta', in the sum of Rs.9,00,000/ - [Rupees Nine Lac only], was accepted. The Deputy Nazir report dated 13.09.2019, in this regard reads as follows:

NAZIR'S ENDORSEMENT IN COMPLIANCE OF COURT'S ORDER DATED 30.08.2019

In compliance of Court's order dated 30.08.2019, Bank Guarantee bearing No.3ABL-176PB181025 dated 18.07.2019 furnished by the authorized officers namely Messrs Hafiz Muhammad Fareed Haseeb son of Muhammad Haseeb and Syed Asif Haider son of Syed Razi Haider of Askari Bank Limited, Sumbalhag Branch Kahuta in the sum of Rs.9,00,000/- [Rupees Nine Lac only] on behalf of Petitioner vide Bond No.80149 dated 12.09.2019. This Guarantee has been accepted after obtaining NOC regarding amount from the learned counsel for Respondents

32. Lastly, on 23.10.2019 and 29.11.2019, when the above Constitutional Petition came-up before me then, I heard Mr. Altamash along with Mr. Muhammad Rehan, learned counsel for the Petitioner herein [Defendant] and Mian Muhammad Akram, learned counsel for Respondent No.3 herein [Plaintiff] and also gone through the available record before me minutely, with the valuable assistance of learned counsel for the parties.

33. Mr. Altmash Arab, learned counsel for the Petitioner [Defendant] while, arguing the case of the Petitioner forcefully, contended that both the courts below have badly failed while, passing the 'impugned' judgments and decrees [Annexure 'A' and 'A/3' to the MoP] to either properly apply their judicial mind and/or otherwise, to appreciate the 'evidence' / 'materials' available on record in its' 'true perspective'. Per learned counsel, both the courts in fact have erred in law while, deciding the matter without considering the 'contents' of the Defendant's 'written statement' and 'affidavit-in-evidence' merely for the reason that the Petitioner herein [Defendant], has failed to appear, lead evidence and put himself to 'cross-examination' before the trial court in Family Suit No.1653 of 2012 [Mst. Shehnaz daughter of Khalil ur Rehman v. Muhammad Arif].

34. According to Altamash Arab, learned counsel for the Petitioner herein [Defendant], both the 'impugned Judgments' and 'Decrees' are not only suffering from 'mis-reading', 'non-reading' of evidence but the same are also bad on account of material 'irregularities' and 'illegalities' committed by both the courts below. Per learned counsel, the Petitioner [Defendant] though accepts in his 'written statement'/ 'Affidavit-in-Evidence' the factum of his 'Nikah' with Respondent No.3 [Plaintiff] on 24.12.1999 but as far as 'Rukhsati' of Mst. Shahnaz daughter of Khalil-ur-Rehman, is concerned, the same could not take place as Respondent No.3's parents despite all possible efforts on the part of Petitioner [Defendant], did not agree to allow.

35. Per Mr. Altamash Arab, learned counsel for the Petitioner, Respondent No.3, namely Mst. Shahnaz daughter of Khalil-ur-Rehman nevertheless, has failed to establish that her Non-'Rukhsati' in any manner was on account of the Petitioner's failure. Per learned counsel, the 'burden of proof' in this regard was lying on the shoulder of Respondent No.3 [Plaintiff] which burden, as evident from the record, has not been discharged satisfactorily. According to Mr. Altamash Arab, the learned Additional District and Sessions Judge No.VIII Karachi-West, somehow, in an erroneous way, shifted the burden of proving of 'Non-Rukhsati', on the shoulders of Petitioner herein [Defendant] though it was solely and squarely lying on the shoulder of Respondent No.3 [Plaintiff], as it was she who approached the court of law by instituting legal proceedings i.e. Family Suit No.1653 of 2012 [Mst. Shehnaz daughter of Khalil ur Rehman v. Muhammad Arif], before the Family Court. Filing of legal proceedings also amounts to refusal.

36. Mr. Altamash Arab, learned counsel for the Petitioner herein [Defendant], while, continuing his arguments next contended that the learned Appellate Court i.e. learned Additional District and Sessions Judge No.VIII Karachi-West, has erred in interpreting the contents of letter dated 07.02.2012, written by the Petitioner's father to Respondent No.3's father. Per learned counsel, bare reading of the letter would show that the admission of delay from the Petitioner's side was only with a view to maintain the existing 'cordial' and 'good relationship'.

37. Mr. Altamash Arab, learned counsel for the Petitioner herein [Defendant], next contended that even, awarding of 'maintenance' in the sum of Rs.25,00