The Peshawar High Court has recently delivered two important judgments providing relief to women litigants seeking dissolution of their marriages under the Family Court Act 1964.

In one of the judgments a single-member bench comprising Justice Sahibzada Asadullah ruled that stigmatising the character of wife by the petitioner was a strong proof of cruelty on the basis of which the wife could seek dissolution of her marriage.

In another judgment, a two-member bench comprising PHC Chief Justice Qaiser Rashid Khan and Justice Syed M Attique Shah ruled that whenever an application was filed by a woman for dissolution of her marriage, upon failure of pre-trial reconciliation, the marriage was to be dissolved forthwith after summary hearing.

The bench had ruled that the order regarding dissolution of marriage could not be withheld or refused merely upon pendency of other contesting issues between the parties regarding recovery of payment of dower, maintenance or other ancillary matters, which could at best be adjudged after recording pro and contra evidence of the parties.

In the first case, a petition was filed by a person named Mohammad Naeem who had challenged judgments passed against him by courts of a family judge and that of an additional district and sessions judge on Oct 31, 2010, and June 19, 2019, respectively.

Both the subordinate courts had decided suit in favour of the petitioner’s wife who had approached the family court seeking dissolution of her marriage on ground of cruelty, return of her dowry articles, payment of dower and maintenance.

The family court had decided that suit in favour of the woman and an appeal filed by the petitioner was also dismissed by the additional district and sessions judge.

The respondent/wife had alleged that she was forcibly expelled from the house by the petitioner/husband. On the contrary, the petitioner alleged that his wife was in touch with strangers on her mobile phone and it was one of the sources of strained relations between them.

In the detailed judgment, Justice Sahibzada Asadullah observed that the petitioner/husband was examined as defense witness and he on one the hand admitted the noble character of his wife, on the other he levelled unfounded allegations regarding her involvement with another person on her mobile phone.

The bench observed that the petitioner with passage of time had developed mistrust towards his wife and that was one of the annoying factors that drifted away both the husband and wife.

The bench ruled: “True that in this society particularly in Khyber Pakhtunkhwa, a husband cannot tolerate of his wife’s engagement with strangers on phone and if she was found involved in (such) like activities dangerous results would follow, but if the allegations so levelled were found unreasonable then the development of hatred inter-se is an unavoidable consequence and in the like situation it is hard for a husband to retain the trust of his faithful wife which he once had.”

“There is no denial to the fact that the allegations so levelled if proved unfounded would drag away a faithful wife to certain consequences and ultimately would give birth to hatred,” the bench ruled adding that such type of allegations against one’s wife that too without proof leads to create a sense of cruelty.

In the other case, a woman Ms Momina had filed a petition in the high court seeking to set aside an order of the family court delivered on March 26, 2018, in Peshawar whereby her plea for dissolving her marriage under section 10 (4) of the Family Court Act was turned down.

The bench of PHC accepted her petition and set aside the order of the family court on Feb 16, 2021.

The petitioner claimed that due to strained relation between the spouses, she was expelled by the respondent/husband from house which led to institution of a suit for dissolution of marriage, recovery of dower, maintenance, etc before the family court.

The suit was contested by the husband by raising various legal and factual objections.

During pendency of the suit as well as after failure of efforts for pre-trial reconciliation, the petitioner filed an application for immediate dissolution of her marriage under section 10 (4) of the Family Court Act.

The trial court had ruled that it was not justified and rather self -contradictory stance of the plaintiff/wife that she was desirous of dissolution of her marriage at this preliminary stage on ground of cruelty and equally she is refusing to restore/return the dower to defendant which on the face of it was against the provisions of section 10 (4) of the Act, which if done, the very purpose of this enactment would be defeated and it would be mockery of law.

In its detailed judgment authored by Justice Syed M Attique Shah the bench observed that now the precise question for consideration of this court was that whether in presence of other pending issues between the parties, marriage could not be dissolved forthwith upon the demand of the wife, after failure of reconciliation.

The bench referred to different judgments of the superior courts and ruled that it was crystal clear that whenever an application was filed by plaintiff for dissolution of her marriage upon failure of pre-trial reconciliation, then marriage was to be dissolved forthwith.

“Albeit, if the marriage tie is kept intact on account of other ancillary issues, then it would be denial of the right so conferred upon the wife by the law, as the very purpose and object of the said provision is to salvage the wife from hateful union,” the bench ruled, adding that not allowing the plea would amount to keep the tie of marriage forcefully intact, which was against the concept and notion of the said provision of law.

Published in Dawn, March 30th, 2021



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