' ASAD MUNIR, J.---This constitutional petition seeks the setting aside of the learned Judge Family Court's judgment and decree dated 22-12-1997 whereby the marriage between the petitioner and respondent No,1 was dissolved on the ground of Khula. It is also prayed that the certificate for dissolution of marriage dated 15-3-2000, issued by Chairman, Arbitration Council, Ward No, 164, Muslim Town, Lahore, be declared to be void and non-existent in the eye of law.
2. The marriage between petitioner and respondent No,1 was solemnized in accordance with Islamic law on 2-3-1990 whereafter two daughters were born to the couple, one of whom is now studying in B.A. While the other is studying in F.A. However, the relations between the petitioner and respondent No,1 turned sour with the result that respondent No,1 on 24-9-1995 filed a suit for dissolution of her marriage with the petitioner followed by another suit filed on 2-7-1996 for recovery of maintenance allowance for her as well as for the minor daughters. To counter the two suits, the petitioner on 8-10-1995 filed against respondent No.1 a suit for the restitution of conjugal rights. The three suits were consolidated and vide consolidated judgment and decree dated 22-12- 1997, the suits of respondent No.1 were decreed while the petitioner's suit for restitution of conjugal rights was dismissed. As a result, the marriage of the petitioner with respondent No,1 was dissolved on the ground of Khula in consideration of respondent No.1 relinquishing her claim for maintenance while respondent No.1's suit for maintenance was decreed to the extent that the petitioner was directed to pay Rs,700 per month to each of the two minor daughters. Thereafter, the notice of the judgment/decree dated 22-12-1997 was served on the Chairman, Arbitration Council, Ward No, 164, Muslim Town, Lahore, who issued a dissolution of marriage's certificate. This certificate shows that the said judgment and decree was received by the Arbitration Council on 22-3-1999 and the marriage stood dissolved ed with effect from 15-3-2000 on account of the failure of reconciliation.
3. There is no opposition to the petitioner's prayer for setting aside the judgment and decree dated 22-12-1997 as respondent No,1 supports the writ petition and in fact seeks the same relief. Learned counsel for the petitioner has contended that the impugned judgment/decree is liable to be set aside for having been passed without complying with the mandatory requirements of pre-trial and post-trial reconciliation prescribed under section 10(3) and section 12(1) of the West Pakistan Family Courts Act, 1964. In this regard, the learned counsel has placed reliance on Dr. Altaf Ahmad v. Mst. Neelofar Nazneen and another (2007 MLD 829). It has also been argued that this Court should not be reluctant to exercise its constitutional jurisdiction as both the petitioner and respondent No,1 are unanimous in seeking the recall of the decree for the dissolution of their marriage for the revival of their marriage and the restoration of their status as husband and wife.
4. Considering the unusual nature of the case, it was deemed appropriate to seek the able assistance of Mr. Ali Zafar, Advocate, as an amicus curiae. After carrying out the necessary research, Mr. Ali Zafar has expressed the view that the impugned judgment/decree cannot be set aside on any ground including the failure of the reconciliation during the trial as it has attained finality. However, it has been suggested by Mr. Ali Zafar that in view of the rule laid down in cases titled Gulzar Hussain v. Mst. Mariyam Naz (2000 MLD 447), Fazl-e-Subhan v. Mst Sabreen and 3 others (PLD 2003 Peshawar .169) and Muhammad Ayub Khan v. Mst. Shehla Rasheed and another (PLD 2010 Karachi 131), the petitioner and respondent No,1 can resume their marital relationship by means of a re-marriage as there is no legal or moral impediment including that of an intervening marriage or Halala.
5. Admittedly, since the passing of the impugned judgment/decree, the petitioner and respondent No,1 have been separated from each other for the last 11 years or so. They appear to have had a late realization that they should resume their marital life together. However, instead of taking the easier option of getting re-married, it has been insisted on their behalf that the impugned decree be set aside as no opportunity for reconciliation was provided to them by the learned Family Judge before passing the impugned decree for dissolution of their marriage. To say the least, such a plea is an after-thought which needs no consideration if one refers to the proceedings that took place before the learned Family Judge. The order sheet of the learned Family Judge shows that pre-trial reconciliation under section 10(3) of the West Pakistan Family Courts Act, 1964, was attempted but failed as is reflected by order dated 16-10-1996. Similarly, efforts made under section 12(1) ibid for post-trial reconciliation were not fruitful as has been noted in the Family Judge's order dated 26-11- 1997. Thereafter, some more opportunities were provided by the learned Family Judge but the parties were unable to resolve their differences so much so that respondent No,1 A simultaneously resisted the petitioner's suit for restitution of conjugal rights which was dismissed by the same impugned judgment/decree. Even if it is assumed that there was any loss or lack of opportunity for reconciliation before the Family Judge, the parties had another opportunity for reconciliation during the proceedings before the Arbitration Council. Obviously, this second opportunity was also lost with the inevitable result their marriage stood dissolved when dissolution of marriage certificate dated 15-3-2000 was issued by the Chairman Arbitration Council.
6. I have had occasion to go through the case of Dr. Altai' Ahmad v. Mst. Neelofar Nazneen and another supra, relied upon by the learned counsel for the petitioner, wherein the estranged spouses could not avail the opportunity for reconciliation which distinguishes it from the present case as the petitioner and respondent No,1 were both present before the Family Judge on 26-11- 1997 when failure of post- trial reconciliation was recorded by the learned Family Judge. Another distinguishing feature missing in the cited precedent is that the judgment and decree dissolving the marriage has been acted upon as the requisite notice under section 9 of the Muslim Family Laws Ordinance, 1961, had been given. Moreover, unlike in the cited precedent, there is a long interval of more than I1 years since the dissolution of marriage during which the parties stayed away from each other as they had undoubtedly accepted the dissolution of their marriage.
7. It will be of benefit to refer to Gulzar Hussain v. Mst. Mariyam Naz supra where also a Family Judge had on 31-5-1999 decreed the dissolution of marriage on the basis of Khula'. The husband challenged the decree dated 31-5-1999 through a constitutional petition during the pendency of which the parties on 1-9-1999 filed a joint application seeking recall of the decree on the plea that they had resolved their differences and the "wife" was ready to rejoin her "husband", It was first argued that the dissolution of marriage by way of Khula' did not have any legal status and was not admissible in the Sharia and that the wife continued to be in the nikah and could not marry another person. Understandably, the argument for recall of the decree was not pressed. Instead, another application was moved by the parties wherein they prayed that they may be allowed to remarry as Tajdeed-e-Nikah by treating the Khula' decreed by the court as one pronouncement of divorce. This argument was .Accepted and in accordance with the injunctions of Quran and Sunnah, it was held that "the pronouncement of Khula' by the Court would amount to a single divorce, therefore, until the third divorce takes place the petitioner would be at liberty to marry his wife again, consequently, the parties can rejoin as husband and wife on the solemnization of nikah without' the intervention of third person." The aforesaid judgment was followed in Muhammad Ayub Khan v. Mst. Shahla Rasheed and another supra where again the re-union of husband and wife, whose marriage had been dissolved by the court on the ground of Khula', was allowed but only by way of re-marriage. Further support can be drawn from Fazl-e-Subhan v. Mst Sabereeen and three others supra wherein it was held that "we are of the considered view that in case of divorce through Khula', it is not obligatory on the wife to remarry a third person before entering into re-marriage tie with her first husband" and same is the case here. The re-marriage with same husband would of course be subject to the performance of another Nikah. Section 7(6) of the Muslim Family Laws Ordinance also allows such re-union without 'Halala' hence we see no restraint either in the Muslim Family Laws Ordinance or the injunctions of Qur'an and Sunnah not to allow the prayer of the husband for re-union with his wife when she is ready to live again as wife of the petitioner within the limits of God".
8. Even though both petitioner and respondent No,1 are willing to resume their life together as husband and wife, their desire to live together cannot invalidate or nullify the effect of the impugned judgment and decree which has attained finality as the dissolution of their marriage has become effective under section 7(3) of the Muslim Family Laws Ordinance, 1961. At the same time, Islamic Law does not allow a husband and wife, divorced through Khula', to re-join without contracting another marriage. In this respect, reference may be made to Maulana Abul Ala Maudoodi's Tafheem-ul-Quran, Volume 1, wherein at page 176, the eminent Islamic scholar has observed that in the case of khula, since the wife has paid consideration to obtain the divorce, the husband is left with no right to go back to the wife provided that the husband and the wife can re- join if they agree with each other and remarry.
9. No reason has been given by the petitioner and respondent No,1 to explain their reluctance to re- marry except that they find it personally embarrassing to tie the nuptial knot once again at this late stage when their daughters are grown-up. This is hardly convincing. Admittedly, the couple has lived apart for the last 11 years on account of the dissolution of their marriage through the impugned decree. They have an easy option and can annul the legal effect of the impugned decree by solemnizing another marriage as there is no physical, moral or legal obstacle in their way to do so. This is the only legal course open to them.
10. For the reasons stated above, no illegality, irregularity or defect can be found in the learned Judge Family Court's judgment and decree dated 22-12-1997. Accordingly, this writ petition is