MUHAMMAD DIN vs Mst. ALIYA BIBI and another

' MUHAMMAD MUZAMMAL KHAN, J.---This constitutional petition assailed judgment/decree dated 11- 10-2006 passed by the learned Judge Family Court (respondent No,2), to be declared illegal, void and of no legal consequence, whereby pending suits, one by respondent No,1 for dower amount and the other for restitution of conjugal rights by the petitioner, suit for dissolution of marriage by respondent No,1 was decreed on the basis of "Khula".

2. A short factual background of the case is that petitioner entered into a tie of marriage with respondent No,1 on 15-10-2004 against a dower of Rs,50,000, according to Muslim rites through a registered Nikahnama. Relations between the spouses did not remain cordial and resulted in separation. Respondent No 1 during her desertion on 25-1-2005 filed a suit for dissolution of her marriage and recovery of dower amount which were opposed by the petitioner by filing is written statement. Petitioner also filed a suit for restitution of conjugal rights and this suit was contested by respondent No, 1.

3. The suits filed by the parties were taken up on 12-9-2005 and after failure of reconciliation proceedings, the trial Court framed issues arising out of controversial pleadings of the parties and fixed these cases for evidence .Of respondent No, 1 . On 4-10-2006 on request of the learned counsel for respondent No,1 her fresh statement was recorded wherein she stated, that she cannot live with the petitioner within the limits prescribed by Almighty Allah and prayed for grant of "Khula".

Trial Court on 11-10-2006 decreed suit of respondent No,1 to the extent of dissolution of marriage and granted her the relief of "Khula". Petitioner being aggrieved of judgment/decree dated 11-10- 2006 'filed this petition and respondent No,1 in response to notice by this Court appeared through her counsel.

4. I have heard the learned counsel for the parties and have examined the record. Stance of the petitioner that after framing of issues arising out of pleadings of the parties on 12-9-2005, the learned Judge Family Court was denuded of jurisdiction to review it and to pass decree for dissolution, of marriage on a subsequent date fixed for evidence, in absence of any provision regarding review in the Family Courts Act, 1964, has not impressed me to adjudge well reasoned judgment of the trial Court. No doubt, there is no provision of review in the Family Courts Act, 1964 but the course adopted through the impugned judgment is permissible in light of section 24-A of General Clauses Act 1897, and the errors committed could have been rectified. Under proviso to section 10 of Family Courts Act, 1964, the learned Judge Family Court in a suit for dissolution of marriage, on failure of reconciliation, was bound to pass decree for dissolution of marriage forthwith. Order dated 12-9-2005 proved to the hilt that reconciliation efforts between the spouses could not succeed and at this juncture suit for dissolution of marriage by respondent No,1 on the basis of "Khula" deserved to be decreed, to this extent but out of inadvertence this exercise was not undertaken and was invoked later to remedy her grievance.

5. By virtue of preamble of the Family Courts Act, 1964, legislature intended to conclude the family suits expeditiously, excluding application of Civil Procedure Code, 1908 through its section 17. The Act of 1964 is not exhaustive and does not make provision to meet every conceivable eventuality and unforeseen circumstances/situations. In spite of directly in applicability of provisions of C.P.C. a Judge Family Court while dealing with the suit mentioned in schedule of the Family Courts Act, 1964 has to adopt procedure as of his choice, in order to meet the situations not visualized in the Act applicable. Judgments in support of this proposition are in the cases of Khalil-ur-Rehman Bhutta v.

Razia Naz (1984 CLC 890), Shahzada Jawaid v. Mst. Sadia Rauf and another (2000 M LD 1301) and Mirza Shahid Baig v. Mst. Lubna Riaz and 2 others (2004 CLC 1545). Scan of precedent case law, record and impugned judgment revealed that controversy was correctly put to rest, without committing any error of law/facts.

6. For the reasons noted above, no case for interference in constitutional jurisdiction of this Court was made out. Even otherwise lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs.