' SYED MUHAMMAD FAROOQ SHAH, J.---With regard to maintainability of Constitution petition preferred against "Khula" granted by learned IV Family Court, Karachi-Central in Family Suit No,1831/2011, I have heard learned Counsel for the petitioner, perused the Judgment passed by the learned Trial Court and carefully examined the proviso of Section 10(4) of the West Pakistan Family Courts Act 1964 added by amending Ordinance LV of 2002 dated 1-10-2010. The point for determination involved in the matter in hand is that as to whether the Family Court can dissolve the marriage during pretrial proceedings and need not to frame issues for recording evidence. For the sake of convenience section 10(4) along with proviso is reproduced as under:-- "Section 10(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".
2. A bare reading of the aforesaid proviso transpires that the Family Court shall dissolve the marriage on failure of pre-trial reconciliation proceedings and pass the decree forthwith in lieu of dower (Haq-e-Mehar) received by the wife. No legal sanctity is attached to the arguments advanced by the learned Counsel that the Family Court should have to frame the issues after when pre-trial reconciliation talks fails in between spouses. In the case of Mst.Rubina Shamshad v.
Muhammad Hafeez reported as 2010 CLC 386, Lahore High Court held that the court should have not to proceed and to frame issues on failure of reconciliation efforts/pre-trial talks.
3. Proviso to section 10(4) of. Family Courts Act 1964 has an overriding effect, which states that no decision or judgment of any Court or Tribunal shall be an impediment, therefore, right granted for dissolution of marriage is absolute and contingent only upon restoration of Waq-e-Mehar' to the husband and nothing else. As far the contention of the learned Counsel for the petitioner that the word `khula' has not been used by the legislature is having no substance, particularly the statutes does not intend by its language to subvert principles of Shariah on the subject and has left it for Family Court to detide whether to dissolve the marriage between the spouses on the ground of 'Khula ' or on other grounds. Suffice to say that Family Court can dissolve the marriage on the basis of khula' where it finds that `khula' is being claimed due to fault on the part of husband and it becomes impossible for the spouses to live together within the ambit ordained by Al-Quran and Sunnah. The Proviso of section 10(4) of West Pakistan Family Courts Act, 1964 empowers the Family Court to dissolve the marriage when during pre-trial Court reaches at the conclusion after initiating efforts of reconciliation that matrimonial conjugal relations are strained in between the spouses to such an extent that they cannot live together.
4. While pronouncing judgment, learned Family Court has clearly mentioned that during reconciliation efforts the plaintiff (wife) has shown unwillingness to live with the defendant/husband as his wife at any cost. In this view of the matter, the Family Court acted within the sphere of its bestowed jurisdiction/authority, in dissolving the marriage, when all its efforts to persuade the plaintiff (wife) for happy and cordial reunion fails.The word 'shall' used in the aforementioned proviso is directory in nature and not mandatory, hence the Family Court is bound to pass a decree in suit for dissolution of marriage in case of failure of reconciliation between spouses.
5. The contention of the learned advocate for the petitioner that the word 'dissolution' mentioned under the proviso to Section 10(4) of West Pakistan Courts Act 1964 does not include `Khula' appears to be incorrect as khula' itself is a kind of dissolution according to the law and is to be granted even if the defendant/husband disputes receipt of dower. When plaintiff/wife seeks relief by way of khula', the Court in the circumstances is required to allow dissolution of marriage on the basis of khula'. Pending decision, regarding controversies of the amount of HAQ-E-MEHAR' to be adjudicated upon at later stage.
6. Suffice to say that the instant constitution petition filed against the legal and valid impugned order pronounced by the learned Family Court does not call for any interference. Resultantly, the petition is dismissed in limine, having no merits for consideration.