' SYED YAHYA ZAHID GILLANI, J.-Since no appeal or revision lies against an interim order passed by a Family Court due to the bar contained in section-14(3) of the West Pakistan Family Courts Act, 1964, the petitioner, alleging that no other adequate remedy being available to him, has, in this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, called in question the interim order of Judge Family Court, Nowshera, dated 13-3-2008, whereby the petitioner (husband) has been directed under section 17-A of the Act (ibid) to pay the respondent Mst. Shaista (wife) Rs,5000 per month, as interim maintenance allowance, till the decision of the suit.
2. Mr. Fazal Mola Chattan, Advocate, for the petitioner, contended that the impugned order is without lawful authority and of no legal effect, as the jurisdiction under section 7-A of the Act (ibid) could not be exercised by the Family Court after failure of pre-trial reconciliation proceedings between the spouses, and the Family Court had no other choice but to dissolve the marriage under the mandatory provision contained in the proviso added to subsection (4) of section 10 of the Act (ibid), instead of directing the petitioner to pay interim maintenance allowance.
3. We have carefully adverted over the proviso added to subsection (4) of section 10 of the West Pakistan Family Courts Act, 1964. It is reproduced below for ready reference: .... "Section 10. Pre-trial proceeding. (1)
(2) ...................
(3) .............
(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 to husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.]"
4. Indeed, the word "shall" used in the above quoted proviso superficially creates the impression that the provision is mandatory but its deep analysis depicts quite different version.
5. It cannot be ignored that the same proviso further speaks of restoration to husband the "Haq Mehr" received by the wife at the time of marriage. This segment of the proviso discerns that the dissolution of marriage to which this proviso refers, can be nothing else but on the basis of Khula'.
We are mindful of the fact that a Family Court sometimes may also be confronted with a situation wherein the wife does not accept dissolution of marriage on the basis of Khula' and emphasizes her entitlement to dissolution of marriage on the basis of cruelty or any other legal admissible ground, along with the recovery of or retention of received dower (Haq Mehr). In that eventuality, should a Family Court, after failure of pre-trial reconciliation proceedings, be left with no other option but to dissolve the marriage in terms of Khula' only? We are of the opinion that the proviso does not. Tie the hands of Family Court to such an extreme extent. If we go to accept the interpretation of learned counsel for the petitioner, the dissolution of marriage under the said proviso would be left nothing but a mechanical process. Additionally, it will deprive a wife to all admissible legal grounds of dissolution of marriage, other than Khula' and we cannot imagin that the proviso has been legislated to indirectly deprive women, of their all legally recognized grounds of dissolution of marriage, excepting Khula'. Such an interpretation would not be in consonance with the Scheme of prevailing Family Laws. Therefore, we hold that the word "shall" used in the above quoted proviso is directory in nature and not at all mandatory. The Family Court can dissolve the marriage under the aforesaid proviso, after failure of pre-trial reconciliation proceedings, if the facts and circumstances of the case justly demand such an order, keeping in view the principles of Khula', enunciated by Qur'an and Sunnah. However, if the Family Court concludes that evidence should be recorded to determine the right of wife to get the marriage dissolved on any other legally admissible ground the Family Court can skip over the stage and frame issues to record evidence and decide the case according to law.
6. With the above considered opinion and decision we further hold that learned Family Court had lawful authority under section 17-A to determine the interim maintenance allowance, which was duly exercised.
7. Learned counsel for the petitioner also contended that the impugned order tentatively determining the maintenance allowance at a rate of Rs,5,000 per month is harsh and without considering the financial position of petitioner, and as such, it is illegal and of no legal effect. We do not find ourselves in agreement with learned counsel for the petitioner on this point too, because the interim maintenance allowance has not been determined in vacuum. In fact it is based on the commitment of petitioner in Nikahnama that he shall pay that much amount to respondent in such-like situation.
8. With the conclusion that the impugned order is neither without lawful authority nor has any jurisdictional error nor it is harsh, we dismiss this writ petition in motion.