PHC upholds family court’s decision on dissolution of marriage

PESHAWAR: Upholding the family court’s decision of dissolution of marriage in the absence of the spouses as both were living in Canada, the Peshawar High Court (PHC) has declared that a woman cannot be forced to resettle against her wishes.

As per the detailed judgment by Justice Muhammad Nasir Mehfooz, neither there is any jurisdictional defect in the impugned order of the family court nor abuse of the process of law. Therefore, the writ petition was dismissed in limine (first hearing).

The bench pointed out that the woman was voluntarily insisting on dissolution of her marriage and appearing to be unwilling to reside with the petitioner on any ground whatsoever so she could not be forced to resettle.

The bench ruled that under section 10 (4) of the Family Court Act, law has empowered the family court to grant a decree for dissolution of marriage keeping in view the nature of strained relationship of the spouses. It adjudged that the learned trial court has exercised its jurisdiction accordingly.

Muhammad Iqbal, the petitioner/defendant, in the instant writ petition invoked constitutional jurisdiction of the high court and requested that on acceptance of this petition the impugned orders may be set aside and the respondent No.4 (Family Court) be directed to decide the case on merit after recording pro and contra evidence of both the parties, conduct reconciliation proceedings almost necessary in family cases, and provide opportunity of hearing to the parties.

“It is stated by the petitioner that respondent No 1 (Nazia Iqbal), wife of the petitioner, filed a suit for dissolution of marriage, recovery of dower, ie 15 tolas gold or its market value, 10 tolas gold, maintenance allowance as mentioned in the plaint for herself as well as for her minor children, but the petitioner appeared in the suit through his attorney on October 30, 2017,” the judgment said. It said that the Family Court adjourned the case on November 4, 2017 for arguments on application for dismissal of the suit as well as for pre-trial reconciliation.

It said that Nazia Iqbal submitted an application for dissolution of marriage on the basis of “Khula” in lieu of relinquishing her dower, which was resisted by the petitioner and the learned trial court on November 4, 2017 granted decree for dissolution of marriage under section l0 (4) of the Family Court Act, 1964.

However, the order was challenged by the petitioner on the ground that no proper reconciliation proceedings had taken place between the parties due to absence of the spouses. During arguments, the court stated that the petitioner’s counsel has even admitted that the petitioner is residing in Canada and the respondents are also citizens of Canada as their addresses reveal. It noted none of them personally appeared before the learned trial court at the time of reconciliation proceedings.

It said the woman filed the suit through her father and the petitioner is defending the suit through his brother and after grant of decree for dissolution of “Nikah” at the preliminary stage, the learned trial court allowed the parties to produce evidence on the remaining parts of the relief as prayed for in the plaint.

However, it said that the woman voluntarily insisted on her dissolution of marriage and appeared unwilling to reside with the petitioner on any ground whatsoever so she could not be forced to resettle.

It may be mentioned that the counsel for the petitioner stated that Nazia Iqbal has re-married after dissolution of marriage and this would further substantiate the factum that decree for dissolution of marriage was rightly passed at the initial stage.