SYED AKHLAQ AHMED, J.---Through this writ, Muhammad Ali Haider/petitioner has challenged the validity of the judgment and decree dated 30-7-2010 passed by the learned Judge Family Court Lahore in suit for dissolution of marriage on the ground of Khula in favour of Mst. Ramla Sarwar/respondent No,2 with the prayer to declare the same to have been passed without lawful authority, void and of no legal effect. Proviso to section 10(4) of the West Pakistan Family Courts Act 1964 added by Amending Ordinance LV of 2002 dated 1-10-2002 has also been sought to be struck down on the ground that the same is violative of the injunctions of the Quran and Sunnah.
2. Brief facts of the case are that Muhammad Ali Haider/petitioner was married with Mst. Ramla Sarwar/ respondent No,2 in accordance with the injunctions of Islam on 12-11-2009. Dower amount Rs,10,000 (ten thousand) was paid by him to respondent No,2 on the wedding night before consummation. He also gave gold jewellery and other valuable articles to her as detailed in his written statement. On 18-3-2010, respondent No,2 filed suit for dissolution of marriage on various grounds including the ground of Khula, recovery of maintenance, recovery of dower and dowry articles against the petitioner. On 30-7-2010 reconciliation proceedings were held. Time was given to both the parties in person for compromise where after respondent No,2 got recorded her statement that she did not want reconciliation with the petitioner. She would prefer to die than to live with him. Dower of Rs,10,000 was fixed which was not paid by the petitioner. On the other hand, contention of the petitioner was that he has paid the dower. In view of the aforesaid statement, the learned Judge Family Court vide his order dated 30-7-2010 proceeded to decree the suit for dissolution of marriage of respondent No,2 in her favour on the ground of Khula by invoking proviso to section 10(4) of the West Pakistan Family Courts Act, 1964 added by Amending Ordinance LV of 2002 dated 1-10-2002 without restoring the dower to the petitioner by holding that there was controversy between the parties regarding dower which can only be resolved after recording evidence. Issue regarding payment of dower along with issues regarding other claims of respondent No,2 were framed and the case was fixed for evidence of respondent No,2/plaintiff.
3. Learned counsel for the petitioner contends that no serious efforts have been made for effecting compromise between the parties by the learned Judge Family Court. He had no authority to decide the case of the petitioner in the absence of his counsel who had proceeded abroad on general adjournment. The grant of dissolution of marriage on the basis of Khula without restoration of dower and other articles given by the petitioner to respondent No,2 is totally illegal and void. The main order and decree is also completely against the injunctions of Islam and the constitution of Islamic Republic of Pakistan, 1973 and liable to be struck down.
In support of his contention, learned counsel for the petitioner has relied upon PLD 1967 SC 97, PLD 1989 Peshawar 01, Surah Al-Baqra Ayat No,229 of the Holy Quran in respect of restoring of complete benefits given by the husband in case the wife seeks dissolution of marriage on the basis of Khula and abstract of book titled compiled by Mian Masood Ahmad Bhutta Advocate and published by. {{URDU TEXT}}
4. I have heard the arguments of the learned counsel for the petitioner and have also gone through the documents placed on the file.
5. It is evident from the conciliation proceedings dated 30-7-2010 conducted by the Judge Family Court Lahore, that the parties were given an opportunity of reconciliation/compromise by negotiating with each other and for this purpose 15 minutes time was given to them where after both the parties again appeared before the court and respondent No,2 got recorded her statement that there was no chance of reconciliation and she would prefer to die than to have reconciliation with the petitioner. The learned Judge Family Court Lahore then proceeded to decide the suit for dissolution of marriage on the basis of Khula by invoking the proviso to section 10(4) of the West Pakistan Family Courts Act, 1964 added through Amending Ordinance LV of 2002 dated 1-10-2002 by postponing the restoration of dower to the petitioner as there was controversy between the parties regarding payment of dower. However issue to this effect along with other issues were framed and the case was fixed for evidence of respondent No,2/ plaintiff.
6. On that day, on the first call, proxy counsel for the petitioner was present. However during conciliation proceedings between the parties, none of the counsel for the parties were in attendance.
7. Legally speaking, the presence of the counsel for the parties is neither necessary nor required in such proceedings.
How and in what manner the conciliation proceedings are to be conducted by the Judge Family Court, is a matter within the exclusive jurisdiction of the said court. In this view of the matter it is idle for the learned counsel for the petitioner to argue that more detailed and personalized opportunity should have been given in reconciliation, that too, in the presence of the counsel. The proviso added to section 10(4) of the West Pakistan Family Courts Act, 1964 through Amending Ordinance No, LV of 2002, dated 1-10-2002 is indeed procedural. Whereas in case other than suit for dissolution of marriage, pre-trial and post trial reconciliation proceedings are envisaged. The case of dissolution of marriage has been set apart on different pedestal. This is indeed to alleviate the lot of women folk of this country which is indeed the basic purpose and object of all family laws. While passing the decree for dissolution of marriage on the basis of Khula, learned Judge Family Court has not refused to restore the dower to the husband. He has only postponed its return till the decision of issue after recording evidence of both sides as there was controversy between the parties regarding the payment of dower by the petitioner to respondent No. 2 .
7. 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. In spite of directly in applicability of provisions of C.P.C., a Judge Family Court while dealing with the suit mentioned in the schedule of the Family Courts Act, 1964 has to adopt procedure of his choice, in order to meet the situation not visualized in the Act applicable. In this regard reference can be made to cases of Khalil-ur-Rehman Bhutta v. Razia Naz'
(1984 CLC 890), `Shahzada Jawaid v. Mst. Sadia Rauf and another' (2000 MLD 1301), `Mirza Shahid Baig v. Mst. Lubna Baig and 2 others (2004 CLC 1545) and 'Muhammad Deen v. Aalia Bibi and another' (PLD 2007 Lahore 425).
8. Learned counsel for the petitioner has not been able to produce any citation of the superior courts after the addition of proviso in section 10(4) of the West Pakistan Family Courts Act 1964 through Amending Ordinance No, LV of 2002 dated 1-10-2002 to point out any principle of the injunction of Islam as laid down in the Holy Quran and Sunnah which prohibits such a procedure in cases of dissolution of marriage on the principle of Khula. Article 2-A, the Objective Resolution and Article 227 are reproduced as under:- 2-A: The Principles and provisions set out in the Objective Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.
Objective Resolution.
Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which he has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust. This Constituent Assembly representing the people of Pakistan resolve to frame a Constitution for the sovereign independent State of Pakistan.
Wherein the State shall exercise its powers and authority through the chosen representatives of the people; wherein, the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;.
Wherein the Muslims shall be enabled to order their lives in the individual and collective sphere in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah.
Wherein adequate provision shall be made for the minorities to profess and practice their religions ' and develop their cultures; Wherein, the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief faith worship and association, subject to law and public morality; Wherein the independence of the Judiciary shall be fully secured; Wherein the integrity of territories of the Federation, its independence and its rights including its sovereign rights on land, sea and air shall be safeguarded; So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity.
Article 227
(1) All existing laws shall be brought in conformity with the injunction of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.
(9) There is no cavil with the proposition that all the existing laws shall be brought in conformity with the injunction of Islam as laid down in the Holy Quran and Sunnah. However, as herein before stated the learned counsel for the petitioner has not been able to point out any repugnancy to the injunctions of Islam which may be contained in proviso to Section 10(4) of the Family Courts Act 1964.
(10) It will not be out of place to mention that the Federal Shariat Court has been constituted under Article 203-B of the Constitution. Its principal, jurisdiction and functions have been enumerated in Article 203-D of the Constitution. According to said Article, the Federal Shariat Court may either on its own motion or on the petition of a citizen of Pakistan or the Federal Government or the Provincial Government examine and decide the question whether or not any law or proviso of law is repugnant to the Injunction of Islam as laid down in the Holy Quran and Sunnah.
(ii) In this view of the matter, even if it is presumed that the contention of the learned counsel for the petitioner that the proviso to section 10(4) of the Family Courts Act, 1964 offends any injunction of Islam, proper remedy for the petitioner lies before the Federal Shariat Court and not before this Court.
(12) In view of above, I find that controversy was correctly put to rest without committing any error of law/facts. No case for interference in constitutional jurisdiction of this court is made out. Even otherwise lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition which devoid of any merit is dismissed in limine. Junaid Ahmad Qureshi v. Miss Nadia Ikram, Judge Family Court, Islamabad and another 2003 CLC 1001 [Rawalpindi Bench Rawalpindi] and 'Muhammad Din v. Mst. Aliya Bibi and another PLD 2007 Lahore 425 relied upon.