MIAN SAQIB NISAR, J.--- Appellant and respondent No. 2, were married; unfortunately, this sacred union could not succeed, thus constraining the respondent No. 2, to file a suit for dissolution of marriage, on the ground of Khula; the learned Judge Family Court, issued notice to the appellant and endeavoured for pre-trial reconciliation, which failed. Resultantly, by relying upon the proviso to sub-section (4) of Section 10, of the Family Courts as amended by Ordinance (LV) 2002) the learned Judge proceeded to pass the decree for the dissolution in favour of the respondent No. 2 and against the appellant. This was challenged by the appellant through the Writ Petition No. 14661/2003, which has been dismissed by the learned Single Judge in Chamber vide order dated 13.11.2003. Hence this ICA.
2. Learned counsel for the appellant contends that without determining the question, about the return of the benefits derived by the wife (respondent No. 2) on account of the marriage with the appellant, no decree for Khula' could be passed by the learned Judge Family Court. This error, according to the counsel, is apparent on the fact of the record, and should not have been corrected by the learned Single Judge in Chamber in its Constitutional jurisdiction, but the learned Judge has not even adverted thereto. On the strength of the judgments reported as Mst. Khurshid Bibi. Vs. Baboo Muhammad Amin (PLD 1967 SC 97) and Mst. Balqis Fatima. Vs. Najam ul lkram Qureshi (PLO 1959 (W.P) Lahore 566), it is submitted that where the Family Court has failed to consider the above question, the decree is erroneous, illegal and is liable to be declared as such in the writ jurisdiction. It is further argued that according to the provisions of section 10 (4) of the West Pakistan Family Courts Act, 1964, where the efforts of the Court enabling the parties, to reach to the compromise re-conciliation fails, the Court is bound to frame the issues and record the evidence.
Due to failure on part of the learned Judge Family Court to follow the mandatory provision of law, the entire proceedings and judgment and decree dated 23.9.2003, stands vitiated, and thus shall be considered to have been passed without jurisdiction.
3. Heard. In order to appreciate the contentions of learned counsel for the appellant, as the respondent No. 2 is absent and she has already been proceeded ex parte, we feel expedient to reproduce the sub section (4) of Section 10 alongwith the proviso added by Amending Ordinance (LV 2002) which reads as below:---
(4) If no compromise or reconciliation is possible, the Court shall frame the issues in the case and fix a date for the recording of the evidence.
[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 also restore the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.]"
On account of the original text of sub-section (4), which was without the proviso, the argument of counsel for appellant, would have been forceful. But, by virtue of the added proviso to the aforesaid section, an exception has been created, that instead of grind into the hassle of the trial, the Court on the return of the dower, which has been received by the wife, in lieu of the marriage, could forthwith pass decree for the dissolution. According to the order sheet of the Trial Court, the appellant appeared before the Court on 5.9.2003 and made a statement that there is a possibility of amicable settlement between the parties; the case was thus adjourned to 19.9.2003, when respondent was present and the appellant was absent, the case was postponed to 23.9.2003, but in the order, it was made clear to the appellant, that if on the next date, he does not appear for the purpose of reconciliation, the case shall be decided as per law. On 29.3.2003, the appellant was not present. Therefore, learned Family Court by recording the statement of respondent, that she cannot live with the appellant, within the limits prescribed by the God Almighty and that there is no possibility of any amicable settlement between the parties, passed the decree for the dissolution, strictly in terms of the proviso to subsection (4) of Section 10, on the payment of Rs. 100/-, i.e. The dower fixed in the Nikahnama.
4. The power of pass such a decree as held earlier, was available to the Court in view of the added proviso. Had this proviso not been there, obviously, the Court should have framed the issues and record the evidence, but when the exception was created by the law itself, it dispensed with the trial of the matter. We therefore, do find that any illegality or error of jurisdiction has been committed by the Judge Family Court, in passing the impugned judgment and decree, which should have been corrected by the learned Single Judge in Chamber.
5. Learned counsel for the appellant wants us to read and rely only upon the subsection (4) by ignoring the proviso thereto. We are afraid, that if the argument is accepted, it shall be against all the cannons of the interpretation or statutes and the very purpose and the object of the proviso, shall stand defeated. Because the proviso is the integral part of the main provision, to which, it is attached and therefore, such provision have to be considered, interpreted and applied in the light of the proviso to the extent, it is applicable and not in isolation thereof.
In view of the above, the argument of the learned counsel has no force and is hereby repelled.
As regards the submission on the basis of two dictums mentioned above, suffice it to say that these cases are before the amendment of subsection (4) and addition of the proviso thereto and thus on account of the change brought by the law, the judgments would have no application to the case hand.
In the light of above, we do not find any merit in this appeal, which is hereby dismissed.
Inter-Court .