AMANAT ALI Versus Mst. NADIA SHAUKAT

ORDER

ATIR MAHMOOD, J.--- Through this constitutional petition, petitioner has challenged the legality of order and decree dated 21.12.2018 passed by respondent No.2/learned Judge Family Court, Lahore.

2. Precisely, the facts of the case are that petitioner filed a suit for restitution of conjugal rights against respondent No.1 on 05.11.2018, alleging therein that the petitioner was married with respondent No.1 on 07.04.2018 according to the injunctions of Islam in lieu of Rs.5000/- as dower amount which was paid to respondent No.1 at the time of Nikkah; that from the first day of marriage the respondent No.1 was treated by the petitioner with all possible love and affection and use to pay her the maintenance allowance; that relationship between the spouses remained cordial for few days, thereafter, the differences arose between them and respondent No.1 despite requests remained adamant in mending her attitude and finally on 24.09.2018, in absence of petitioner, respondent No.2 left the house along with valuable articles and gold ornaments; that she in spite of hectic efforts refused to rehabilitate with the petitioner. Respondent No.1 filed written statement to the suit. The learned trial Court adjourned the case for reconciliation proceedings for 15.12.2018, however, before reaching of petitioner in the Court, the statement of respondent No.1 was recorded by the learned Judge Family Court. Petitioner requested to the learned Judge Family Court for providing him an opportunity for reconciliation while sending the matter to Arbitration Court through filing an application, however, same request was declined. The learned counsel for the petitioner requested for referring the case to learned District Judge but this request was rejected by the learned Judge Family Court and suit of the petitioner was dismissed while granting the decree of dissolution of marriage in favour of respondent No.1 vide order dated 21.12.2018, impugned in this constitutional petition.

3. Learned counsel for the petitioner contends that impugned order passed by learned Judge Family Court is illegal, unlawful, void ab initio, having been passed without lawful authority and without taking into consideration material points; that no opportunity for reconciliation was provided to the petitioner by the learned Judge Family Court; that statement of respondent No.1 was recorded in absence of the petitioner. Lastly, prayed for acceptance of this constitutional petition and setting aside of impugned order.

4. Arguments heard. Record perused.

5. The main grievance of the petitioner is that the impugned order and decree dated 21.12.2018 was passed by learned Judge Family Court on the basis of the statement of the respondent No.1 which was recorded in his absence, whereas, her statement would have been recorded in his presence.

6. Earlier, under Section 10(3) of the West Pakistan Family Courts Act, 1964 provided a mechanism in pre-trial proceedings. For ease reference, I deem it proper to reproduce section 10(3) of the Act ibid herein below:-

"S.10 Pre-trial proceedings.-(1)

(2) .

(3) At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise of reconciliation between the parties, and their counsel."

(Emphasis provided)

Afterwards vide Punjab Amendment, (The Family Courts (Amendment) Act, 2015), in the year 2015, Family Courts Act 1964, Act XXXV was amended in order to speed up the litigation and as a consequence of this, Section 10(3) also amended as follows:

"S.10 Pre-trial proceedings:-

(3) The Family Court may, at the pre-trial stage, ascertain the precise points of controversy between the parties and attempt to effect compromise between the parties."

(Emphasis provided)

From the reproduction of Section 10(3) as above, it depicts that before amendment the legislature used the word "shall" in order to determine the points at issue between the parties and try to effect a compromise of reconciliation between the parties, however after amendment in the Section 10(3), the word "may" has been used in place of "shall", which means that it is not mandatory for the Court seized with the matter to effect compromise of reconciliation between the parties, rather, it is subject to the facts of the case or if the Court deems necessary for the same. In the present case, on 15.12.2018, when the case was fixed for reconciliation, respondent No.1 recorded her categorical statement before the learned Judge Family Court, Lahore which is reproduced herein below:

Aforementioned, statement of respondent No.1 clearly shows that she has refused to join the petitioner due to his alleged cruel attitude and she categorically denied the possibility of reconciliation with the petitioner. So, in the light of relevant law as stated above, it was not mandatory for the Family Court to effect compromise between the parties when the lady was not ready to do so. Even, on the same the stance of the petitioner was also recorded by the learned Judge Family Court which the respondent No.1 not accepted.

Moreover, the above quoted section and particularly the proviso to its subsection (4) is fully in consonance with Muslim Law. The Legislature while introducing amendment in the Family Courts Act, 1964 has derived wisdom from Quran and Sunnah. The right and mode of "Khula" has been described by Almighty Allah in verse No.229 of Sura Baqra, translation of which is as under:-

"229. The divorce is twice, after that, either you retain her on reasonable term or release her with kindness. And it is not lawful for you (men) to take back (from wives) any of your Mahr (bridal money given by the husband to his wife at the time of marriage)which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she given back (Mahr or a part of it) for her 'Al-Khul' (divorce). These are the limits ordained by Allah, so do not transgress them. And whoever transgress the limits ordained by Allah, then such are the Zalimun (wrong-doers, etc.)".

The above quoted verse from the Holy Quran allows the wife for the dissolution of a marriage on restoration of the dower consideration to the husband. Furthermore, for dissolution of marriage, the consent of husband is not necessary as the words "if you fear" are addressed to the State, or the Judge, and the Judge would determine if the circumstances are such that there is apprehension that the spouses would not observe the limits of God. The reference to the Judge can only mean that he is empowered to pass an order even if the husband does not agree. In support of the above interpretation, reference may be made to two instances of "Khula" whereby marriage of Sabit Ibn-i-Qais was dissolved by the Holy Prophet Hazrat Muhammad (Peace be upon him) on a complaint made by Jamila for relieving her from the Nikah of Sabit Ibn-i-Qais in the following words:--

"Oh Prophet of God. Nothing can bring me and him together. When I raised my veil, he was coming from the front with some men. I saw that he was out of them the shortest and the ugliest. I swear by God I do not hate him because of any defect in him, religious or moral, but I hate his ugliness. I swear by God that if it was not for fear of God I would have spit at his face when he came to me. Oh Prophet of God, you see how handsome I am, and Sabit is an ugly person. I don't blame his religion or his morals but I fear heresy in Islam"

After hearing this the Prophet of God (PBUH) said to Jamila:--

"Are you prepared to return the garden that he gave you". She said: "Yest, Oh Prophet of God, and even more". The Holy Prophet said: "No more, but you return the garden that he gave you", and then the Holy Prophet said Sabit: "Take the garden and divorce her"

Khula is the right of the wife to claim her dissolution of marriage is recognized by the Holy Quran and Hadees. In a case reported as "Mst. Bilqis Fatima v. Naimul Ikram Qureshi" (PLD 1959 Lahore 566) it has been held that:--

"Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife"

7. Admittedly, the relationship of the spouses became strange at very initial stage of matrimonial life even they remained issueless. The argument of the petitioner that respondent No.1 be directed to live in order to perform her matrimonial obligations, is without substance. The record indicated that respondent No.1 had developed hatred against the petitioner hence in such a case Islam does not allow subsistence of marriage for that would mean forcing the wife into a hateful union. A wife cannot be forced to live with her husband without her consent and liking. She need not come out with logical objective and sufficient reasons regarding her claim of Khula', it is enough to show that she had developed a fixed aversion against her husband and as per her own statement to the effect that she had developed hatred against the husband she was entitled to the dissolution of marriage on the ground of Khula.

8. It reveals that right of appeal has not been provided against the decree of dissolution of marriage, under the West Pakistan Family Courts Act, 1964 and it is settled principle of law that where appeal is specifically barred by the legislature, writ jurisdiction is also not available.

9. Learned Judge Family Court had exercised its jurisdiction in accordance with law. Learned counsel for the petitioner has not been able to point out any illegality in the impugned order. No interference is called for.

10. For what has been discussed above, this writ petition is dismissed in limine having no force .

MWA/A-81/L Petition dismissed.