PESHAWAR, Dec 6: The Peshawar High Court has ruled that Mehr (dower) should not be returned to the husband in case of failure of pre-trail reconciliation, if a wife seeks dissolution of marriage on grounds other than Khula.
Interpreting the amendments made to the Family Court Act, 1964, by the military government in October 2002, a full bench of the court ruled that the provision added to Section 10(4) of the act, regarding restoration of Mehr to the husband after failure of pre-trial reconciliation, should not be read in isolation and should be interpreted in the light of other provisions of the act.
In its detailed judgement, given on a writ petition filed by Saima Irum against Maj Tariq Javed, the court ruled that the interpretation of the relevant provision of Section 10 of the act by the judges of the family court was not correct.
The bench had accepted the petition on Nov 22 and remanded the case back to the family court. The PHC has ordered that the detailed judgment should be sent to all district judges and family courts in the province.
Advocate Siddique Haider Qureshi represented the petitioner and Mahmood Alam appeared for the respondent. The judgment is considered of importance by the legal circles as prior to it family courts were interpreting the proviso in a manner which went against women in different cases.
A family court had on July 24, 2003, invoked the proviso to Section 10(4) of the act and after passing decree for dissolution of marriage in favour of the wife at the pre-trial reconciliation proceedings, ruled that she was liable to return Mehr to the husband.
The petitioner filed a review petition before the family court, which on Feb 26 dismissed that and interpreted the said proviso in a sense that after passing the decree for dissolution of marriage in favour of wife, the issue of Mehr had become redundant.
The petitioner filed a writ petition against the two orders of the family court before the high court. On June 3, a division bench took suo motu notice of the amendments made to the act. The bench requested the chief justice to constitute a full bench for hearing the petition.
Section 10(4) of the act was amended to the effect that "provided that notwithstanding any decision or judgment of any court or tribunal, the family court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage".
The bench observed that the amendment was not applicable to cases where marriage was dissolved on grounds other then Khula, like cruelty, etc. The bench comprised Justice Malik Hamid Saeed, Justice Qaim Jan Khan and Justice Ijaz Afzal.
IT OBSERVED: "The interpretations offered to the relevant provisions of Section 10 by the judges of the family court are not correct for the simple reason that while relying on the added proviso to Section 10 of the Family Court Act, 1964, the judges of the family court have totally ignored the other added proviso to Section 9 of the Family Court Act, 1964, through the same amending ordinance".
The proviso to Section 9 states: "Provided that the proviso to Sub-Section 4 of Section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of Khula".
The bench ruled that an expressed intention was conveyed by the legislature that the proviso to Sub-Section 4 of Section 10 (requiring the wife to restore to the husband the Haq Mehr received by her in consideration of marriage at the time of marriage) should be applicable only to those cases in which the family court grants decree on the ground of Khula.
The bench further ruled: "Therefore, in our view, the word Khula should be construed as subject to the presumption that the legislature does not intend, by its general language, to subvert the established principles of Shariah on the subject and has left it for the family courts to decide whether to dissolve the marriage between the spouses on the ground of Khula or not."
"If from the plaint submitted by the wife, the only prayer of the wife is to dissolve her marriage on the ground of Khula, then the family court under the added provisos to Sections 9 and 10 of the Family Court Act could dissolve the marriage between them on the ground of Khula and could also order for the restoration of the Haq Mehr received by the wife in consideration of marriage, but if the claim of the wife is based on other grounds also, such as cruelty, etc. then the family courts shall proceed with the case in accordance with law to determine by recording of evidence that the fault lies in which of the parties and of the parties are entitled to it".
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