Stereo HCJ DA 38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT

Writ Petition No.3405 of 2019

Sahibzada Haroon Ali Syed V/S Additional District Judge

and others

JUDGMENT

Date of hearing 12.01.2022

Petitioner(s) by Mr. Muhammad Mansoor Abbasi,
ASC.

Respondent(s) by Ms. Jamila J Aslam, ASC alongwith

Hafza Azid and Noor Imran,
Advocates for the Respondent No.3.

JAWAD HASSAN, J. The Petitioner has invoked the

constitutional jurisdiction of this Court under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 (the
“Constitution”) setting in challenge judgment dated
09.10.2019 passed by the Additional District Judge,
Rawalpindi, whereby appeal filed against order dated
24.06.2019 of Judge Family Court, Rawalpindi was dismissed.
The Petitioner has also assailed the validity of ex-parte
judgments & decrees dated 14.09.2015 & 02.11.2017
respectively passed by the Family Court, Rawalpindi.
A. FACTS OF THE CASE
2. Briefly summed up facts of instant lis amongst parties
are that the Respondents No.3 to 6 first jointly instituted a suit
(“former suit”) for recovery of maintenance allowance, dower
and dowry articles against the Petitioner having been decreed
Writ Petition No.3405 of 2019 2

ex parte vide judgment and decree dated 22.10.2013 (“former

judgment & decree”) in terms that the Respondents No.3 to 6
were held entitled to recover maintenance allowance
@ Rs.30,000/- each from the date of desertion as well as
respondent No.3 was granted dowry articles mentioned at
Sr.No.1 to 7 of the list, but her claims for recovery of dower
and gold ornaments were denied. Respondent No.3 later filed
independent separate suit (“other suit”) for recovery of dower
on 15.09.2014 having also been decreed ex parte vide
judgment and decree dated 14.09.2015 (“other judgment &
decree”). As per version of the Petitioner, after falling in
knowledge of execution proceedings of decrees mentioned
above, he filed an application for setting-aside of “former
judgment & decree”, when operation thereof was conditionally
suspended subject to deposit of Rs.50,000/- and eventually on
03.05.2017 said application was allowed to the effect of setting
aside of “former judgment & decree”. However, in the event
of Petitioner’s failure despite of having been afforded with
repeated opportunities, his right to file requisite written
statement was struck off on 03.06.2017, he was proceeded
against ex-parte due to his having skipped out of proceedings
and, ultimately, “former suit” was again ex-parte decreed vide
judgment and decree dated 02.11.2017 (“last judgment &
decree”) in the manner that Respondents No.3 to 6 were
granted maintenance allowance @ Rs.35000/- each w.e.f.
21.01.2013 with 10% annual increase. The Respondent No.3
was held entitled to recover dowry articles mentioned at
Sr.No.1 to 7 of Exh.P2 while her claim of dower was turned
down on account that matter had already been decided in
“other suit” instituted following the divorce pronounced upon
the Petitioner by the Respondent No.1 after former judgment &
decree were given field refusing the Respondent No.3 same
relief for want of missing elements i.e. death of or divorce
from or second marriage of husband without permission of
Writ Petition No.3405 of 2019 3

Arbitration Council of Union Council concerned. Events

followed another application instituted by the Petitioner
seeking setting-aside of “last judgment & decree”, which his
application was dismissed vide order dated 24.06.2019 as well
as appeal against said order preferred before the Respondent
No.1 met with same fate as well vide impugned judgment
dated 09.10.2019.
B. PETITIONER’S ARGUMENTS
3. Learned counsel for the Petitioner Mr. Muhammad
Mansoor Abbasi, ASC inter alia contends that impugned
ex-parte judgments and decrees are the result of mis-reading
and non-reading of material available on record; that while
passing the ex-parte judgments and decrees, the Courts below
have not taken into consideration the financial status of the
Petitioner and the maintenance allowance awarded to the
Respondents is also exaggerative; that the Respondent No.3 is
not entitled for the maintenance allowance as she herself
pronounced divorce to the Petitioner on 16.01.2014 as per
conditions settled in Nikah Nama hence she lost the status of
being wedded wife and this fact has been concealed by her
while getting ex-parte judgment and decree; that the impugned
ex parte judgments and decrees have been passed without
considering stance of the Petitioner and providing an
opportunity to present his written statement which is clear
violation of Article 10-A of the Constitution .
C. RESPONDENTS ARGUMENTS
4. On the other hand, Ms. Jamila J Aslam, ASC learned
counsel for the Respondent No.3 to 6 has controverted the
stance of learned counsel for the Petitioner by supporting the
impugned judgments and decrees passed by the Courts below
pursuant to proper appreciation of the facts and circumstances
of the case. Ms. Jamila J Aslam, ASC argues that the Courts
below adopted all the modes of summoning the Petitioner
provided in law but the Petitioner deliberately did not appear
Writ Petition No.3405 of 2019 4

just to linger on the matter and to evade payment of

maintenance allowance which has rightly been granted in
favour of the Respondents. She further argues that the
Petitioner has been provided a number of opportunities to file
written statement which he remained fail to file and ultimately,
he was proceeded against ex parte hence it cannot be said that
he has not been provided any opportunity or he has been
condemned unheard.
5. Arguments heard. Record perused.
D. DETERMINATION BY THE COURT
6. From the arguments extended by learned counsel for the
parties, the heart of controversy revolves around hard agitated
objection of non-providing fair opportunity to the Petitioner to
pursue his case before the Courts below and the quantum of
maintenance allowance awarded in favour of the Respondents.
7. It evinces from the record that primarily “former suit”
for recovery of maintenance allowance, dower, dowry articles
and gold ornaments was brought on record by the Respondents
No.3 to 6 before the Family Court, Rawalpindi. The “former
suit” was once decreed ex parte vide “former judgment and
decree” dated 22.10.2013 and the Respondent No.4 to 6 were
held entitled to recover maintenance allowance Rs.30,000/-
each and maintenance allowance of the Respondent No.3, at
the aforesaid rate, was granted till the expiry of Iddat in case of
divorce. However, claim of the Respondent No.3 in respect of
gold ornament & deferred dower was refused on the ground of
missing elements of divorce from, death of or second marriage
of the Petitioner. In order to meet with fruits of “former
judgment and decree”, the Respondent No.3 to 6 filed
execution petition having later been transferred to Sialkot for
execution of decree. Record reveals that during execution
proceedings, the Petitioner filed application on 08.11.2016
seeking setting-aside of “former judgment & decree”,
consequent whereupon; first operation of “former judgment
Writ Petition No.3405 of 2019 5

and decree” was suspended subject to cost of Rs.50,000/- vide

order dated 15.11.2016 and, in result of conceding statement of
the learned counsel for the Respondents No.3 to 6, eventually
“former judgment & decree” were set-aside vide order dated
03.05.2017. Thereafter, the Petitioner was desired to file
written statement, but his failure in said regard eventuated in
closure of his right to file written statement vide order dated
03.06.2017, due to his non-appearance in proceedings before
the Family Court he was once again proceeded against ex parte
on 17.07.2017 and ultimately former suit was decreed ex-parte
vide “last judgment & decree” dated 02.11.2017.
8. So far as the ground agitated by learned counsel for the
Petitioner for non-providing of fair opportunity during the
proceedings before the Courts below and violation of Article
10-A of the Constitution is concerned, it is noted that although
the impugned judgments and decrees were passed against the
Petitioner ex parte yet record reveals that after passing of
ex parte “former judgment and decree” dated 22.10.2013, the
Petitioner first appeared before the Court with an application
for setting-aside of said “former judgment and decree” on
15.11.2016, which was allowed later in terms of order dated
03.05.2017 and said ex parte “former judgment and decree”
was set-aside as well as the Petitioner was directed to file his
written statement to the main suit. It is observed that despite of
having been provided with fair opportunities on 13.05.2017,
23.05.2017 & 03.06.2017, the Petitioner did not bother to file
his requisite written statement in defiance to Section 9(1) of
The Family Courts Act, 1964 (the “Act”), as such, his right to
file written statement was struck off on 03.06.2017, which
order still stands intact having not been assailed or set in
challenge by Petitioner to get effects thereof undone and said
order thus has attained finality in the eye of law leaving the
Petitioner behind absolutely defenseless. Situation detailed
above manifest that more than enough time was afforded to the
Writ Petition No.3405 of 2019 6

Petitioner to come up with task required by court of law, but he

himself waived his rights thereby parting ways with
proceedings of “former suit”. Moreover, without first tackling
said order dated 03.06.2017 to get effects thereof undone, mere
agitating for setting aside impugned ex-parte proceedings and
“last judgment & decree” was of no use for Petitioner’s cause.
Not challenging order mentioned above striking off the
Petitioner’s right to file his written statement leaves past least
chances for cause & case of the Petitioner. Reliance in said
regard can be placed upon esteemed guideline laid in case
titled “MUHAMMAD TABISH NAEEM KHAN Versus
ADDITIONAL DISTRICT JUDGE, LAHORE and others” (2014
SCMR 1365) wherein the Hon’ble Supreme Court of Pakistan
has held that:
“3 … suffice it to say that the Family Court is the quasi
judicial forum, which can draw and follow its own
procedure provided such procedure should not be
against the principles of fair hearing and trial, thus if a
defendant of a family matter, who is duly served;
and especially the one who appears and disappears and
also does not file his written statement within the time
allowed to him by the Court, the Court shall have the
inherent power and ample power to proceed ex parte
against him, to strike off the defence and to pass an ex
parte decree in line with the principles as are
enunciated by the Civil Procedure Code. In any case,
such order (striking off defence) cannot be said, treated
or deemed to be void, which should be ignored as nullity
in the eyes of the law as argued by the learned counsel
for the petitioner. If the petitioner was aggrieved of the
order, he should have either got it set aside by filing an
application before the Family Court or by challenging
the same in appeal, which admittedly was not so done.”

9. To add further frustration for aspiration of law, after

first appearing in proceedings on 03.05.2017 and closing down
of his right to file written statement on 03.06.2017, Petitioner
jumped all extents of neglects and parted ways with
proceedings for not pursuing “former suit” on 13.06.2017 &
03.07.2017, resultantly, he was proceeded against ex parte vide
Writ Petition No.3405 of 2019 7

order dated 17.07.2017 and “last judgment & decree” were

given field on 02.11.2017. The Petitioner still carried ahead
with an absolute mute & silent conduct till introducing on
06.10.2018 another application seeking setting-aside of ex
parte “last judgment & decree” dated 02.11.2017, as such, the
Petitioner consumed considerable time & waited for more than
mighty eleven (11) months for making said application, which
under umbrella of Section 9(6) of the Act he was allowed and
bound to file within thirty days of passing ex parte “last
judgment & decree”. The Petitioner by no means has brought
on record any good cause and justifiable reason of his long
standing absence from scenario. Esteemed guideline is laid in
case titled “MUHAMMAD ARIF Versus UZMA AFZAL and
others” (2011 SCMR 374) wherein it has held as under
“5. There is no cavil to the proposition that the
"conduct of petitioner can be taken into consideration in
allowing or disallowing equitable relief in constitutional
jurisdiction. The principle that the Court should lean in
favour of adjudication of causes on merits, appears to
be available for invocation only when the person relying
on it himself comes to the Court with clean hands and
equitable considerations also lie in his favour. High
Court in exercise of writ jurisdiction is bound to
proceed on maxim "he who seeks equity must do
equity". Constitutional jurisdiction is an equitable
jurisdiction. Whoever comes to High Court to seek relief
has to satisfy the conscience of the Court that he has
clean hands. Writ jurisdiction cannot be exercised in aid
of injustice. The High Court will not grant relief under
this Article when the petitioner does not come to the
Court with clean hands. He may claim relief only when
he himself is not violating provisions of law, especially
of the law under which he is claiming entitlement ….”

In light of peculiar circumstances of controversy in hand

highlighting absolutely unwanted conduct of petitioner in sheer
defiance of legal requirements, question of limitation referred
above cannot be compromised as well. It is well settled
principle that law helps the vigilant and not the indolent.
Reliance is placed on “AFTAB IQBAL KHAN KHICHI and
Writ Petition No.3405 of 2019 8

another Versus Messrs UNITED DISTRIBUTORS PAKISTAN

LTD. KARACHI” (1999 SCMR 1326).
10. In this view of the matter, it is quite clear that the
Petitioner was granted fair opportunities to file written
statement and pursue his case before the Court below, but he
himself deliberately disappeared from scene despite having
knowledge of the proceedings of “former suit” and no valid
justification is set out by him regarding his said default even
before this Court. Hence this ground is turned down.
11. It would also be beneficial to mention here that before
enactment of the Act, female litigants had to wait for years to
meet with final reliefs i.e. recovery of dower, maintenance,
other ancillary matters and particularly, in cases of dissolution
of marriage. By the time of obtaining decree, majority of the
wives used to become grey haired much beyond the
remarriage-able age, beside incurring heavy expenses on
getting the relief with regard to a meager amount of
maintenance, dower etc. In the judgment reported as “MST.
YASMIN BIBI Versus MUHAMMAD GHAZANFAR KHAN and
others (PLD 2016 SC 613), the Hon’ble Supreme Court of
Pakistan has elaborated the preamble of the Act and also
discussed various sections thereof. Relevant portions of
Paragraph 10 and 12 of the said judgment are reproduced
hereunder for ease of the matter:-
“10. It was in the above background that the
Legislature felt essential to provide for
establishment of Family Courts to deal with all
matrimonial disputes, mentioned above, in an
expeditious manner, curtailing the life of
litigation in such cases. To curb and suppress
the mischief of delaying tactics on the part of
unscrupulous husbands, several amendments
were introduced to the Family Court Act, 1964.
Some amendments bearing striking features may
be cited below:-

S.12-A. Case to be disposed of within a

specified period. A Family Court shall
dispose of a case, including a suit for
Writ Petition No.3405 of 2019 9

dissolution of marriage, within a period of

six months from the date of institution:
Provided that where a case is not
disposed of within six months either
party shall have a right to make an
application to the High Court for
necessary direction as the High Court
may deem fit.
S. 17-A. This newly enacted provision was
with the object to curb the mischief of
delaying tactics and the Family Court was
brought under obligation to pass interim
order, directing the husband to pay
interim maintenance allowance to the
children and the wife after filing written
statement or at any stage thereafter.

The provision of S.21-A was also added to

the Family Court Act, conferring power upon
Family Court to preserve and protect any
property, which is in dispute in a suit or
any other property of a party to the suit for the
future satisfaction of the decree."

To further accelerate and expedite the disposal

of such cases, the District Appeal Court and the
High Court, orders staying the proceedings
before the Family Court, shall cease to be
effective on expiring of thirty days time. Again,
under section 14, through amendment, it was
made mandatory for the Court of Appeal to
decide the case positively within four months.

12. Keeping in view the agonies of the parties,

particularly the wife, in matrimonial disputes to
curtail the mischief of delay and to shorten the
life of litigation in such cases, the Law and
Justice Commission of Pakistan recommended to
the Federal Government and all the Provincial
Governments to establish Family Courts in each
District and Tehsil Headquarter, which shall be
preferably presided over by a female Judge so
that the wives who are not well acquainted and
familiar with the court proceedings are provided
maximum protection and friendly
environments.” (underline is mine)

From the above-quoted paragraphs of the judgment passed

by the Hon’ble Supreme Court of Pakistan in Mst. Yasmin Bibi
Writ Petition No.3405 of 2019 10

Case (supra), it is manifest that certain amendments were made in

various sections of the Act, the aim and object of which was to
address and minimize miseries & plight of the wives seeking
relief through the obsolete law then in vogue, as such, not only
all matrimonial disputes were brought under one and the same
umbrella of the Family Court but such amendments also provided
for the target dates for deciding the relevant lis for both, the
Family Court and the Lower Appellate Court. Deviation from and
violation of the mandatory provisions of the Act, would amount
to frustrate and reverse the efficacious remedies available under
the new scheme of law
12. Another ground with regard to quantum of maintenance
allowance of the Respondents is agitated by the Petitioner
before this Court. So far as maintenance allowance granted to
the Respondents No.4 to 6 is concerned, it evinces from the
judgment and decree that the learned Judge Family Court after
taking into consideration oral as well as documentary evidence
on record fixed the quantum of maintenance allowance keeping
in view the financial status of the Petitioner. Furthermore, the
Petitioner has not produced any documentary proof/evidence in
order to support his version. Keeping in view the prevailing
inflation, the quantum of maintenance allowance fixed by
learned trial Court cannot be termed as harsh as it is hardly
sufficient to meet the needs of daily life of the Respondents
No.4 to 6. It is an admitted fact that Respondents No.4 to 6 are
children of the Petitioner, therefore, he is legally, morally and
religiously bound to maintain them at every cost and no
exception can be taken to it. The Petitioner has not been able to
establish and substantiate necessities of minor Respondents
No.4 to 6, his affordability and sources of his income otherwise
than determined concurrently by Courts below.
13. In respect to grant of maintenance allowance of the
Respondent No.3, learned counsel for the Petitioner has
strongly agitated that the Courts below have failed to consider
Writ Petition No.3405 of 2019 11

the fact of divorce pronounced by the Respondent No.3 to the

Petitioner. According to ex parte “former judgment and decree”
dated 22.10.2013, the claim of respondent No.3 with regard to
dower was refused on score that she at that relevant time was
still wedded wife of the Petitioner, as such, she was granted
maintenance allowance @ Rs.30,000/- from the date of
desertion till the expiry of iddat in case of divorce. Bare perusal
of Nikah Nama reveals that the parties have delegated the right
of divorce as per Columns No.18 & 19 which the Respondent
No.3 invoked and consequently, she pronounced divorce upon
the Petitioner vide admitted Divorced Deed dated 16.01.2014,
thereafter, Respondent No.3 filed separate suit for recovery of
dower amount after pronouncement of said divorce which was
decreed vide “other judgment and decree” dated 14.09.2015.
14. It is also worth mentioning here that after setting-aside
of ex parte “former judgment and decree dated 22.10.2013”,
the claims of the Respondents were re-decided vide “last
judgment and decree” dated 02.11.2017, where learned Family
Court erred whilst entitling the Respondent No.3 to recover her
maintenance allowance again from the date of desertion despite
of the fact that factum of divorce dated 16.01.2014 pronounced
by respondent No.3 was not disputed then and “other judgment
and decree” dated 14.09.2015 now entitling respondent No.3
for recovery of dower was also available before the Family
Court. So, undoubtedly, the Family Court was not justified to
grant maintenance allowance to the Respondent No.3 after
effectiveness of divorce rather it should have been granted till
Iddat period only as is evident from the admitted Divorce
Certificate issued on 02.05.2014 by the Secretary Union
Council Satellite Town (19), District Rawalpindi.
15. In view of above, this writ petition is partially allowed,
the findings of the Family Court to the extent of award of
maintenance allowance to the Respondent No.3 are reversed
and the ex parte “last judgment and decree” dated 02.11.2017
Writ Petition No.3405 of 2019 12

is hereby modified in the manner that the Respondent No.3 is

allowed to recover her maintenance allowance from the
Petitioner w.e.f. the date of desertion till 24.07.2014 i.e. the
date of expiry of her iddat in accordance with date of
effectiveness of her pronounced divorce arising out as
24.04.2017 over surface of admitted divorce certificate issued
on 02.05.2014. As the decree of dower has already been passed
against the Petitioner, therefore, the Respondent No.3 may get
it executed as per law. The remaining findings of the Courts
below are maintained. No orders as to costs.

(JAWAD HASSAN)
JUDGE
Usman*