1. Mst. Qailam Mai filed a suit for separation against Ram Chand writ petitioner who both entered into marriage tie as Hindus. According to the respondent's contention that after the marriage she found the petitioner a vagabond, jobless and aggressive person. Further maintained that petitioner is man of ill repute and had bad society, which created hatred in her heart and mind against the petitioner. Petitioner filed written statement and contended that respondent was not entitled to relief under the Hindu Married Women's Rights to Separate Resident and Maintenance Act 1946. He also contended that he has love and affection for her and wanted to continue in marriage tie according to Hindu tradition.
2. The learned trial Court through impugned judgment dated 23.02.2016 decreed the suit in favour of respondent under Section 10(5) of the Family Court Act 1964 (hereinafter called Act). Through this writ petition, the impugned judgment dated 23.02.2016 has been assailed on various grounds.
3. 3.Learned counsel for the petitioner contended that impugned judgment is nullity in the eye of law as the learned trial Court erred in law while dissolving a Hindu marriage under Section 10(5) of the Family Court Act 1964. He sought that the impugned judgment be set aside.
4. 4.Learned counsel for the respondent defended the judgment that it was passed legally and correctly 5.The facts are admitted that contract of marriage was entered into between petitioner and respondent being Hindus under their customs, however, suit for separation was decided by the learned trial Court under Section 10(5) of the Act. The most important question to be decided by this Court is 'whether Hindu marriage can be dissolved and a decree for separation can be granted under the Act. For proper appreciation of these facts analysis of the Act is essential. It is a matter of general principle that preamble is a preface of the statute. The preamble of the Act is reproduced as under: "Whereas it is expedient to make provision for the establishment of Family Courts for the expeditions settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith."
6. A plain reading of preamble is clearing that the Act is not only relating to Muslim Family matters and Special Courts were established to exercise jurisdiction in respect of all matters as mentioned in Part-I of the schedule under Section 5 of the Act irrespective of the facts that any dispute brought to the Special Court i.e. Family Court is by a Muslim or a non-Muslim or a Hindu. It may further be appreciated that West Pakistan Family Courts Act 1964 replaced The Muslim Family Laws Ordinance 1961 and according to Section 1(2) it provided that the said Ordinance applied to all Muslim citizens of Pakistan wherever they may be. However, in Act 1964 the "word" Muslim citizen of Pakistan was omitted which is sufficiently expressing that the Family Courts were established to deal with cases of family disputes irrespective of religion of the parties to a us.
5. 7.The main contention raised by learned counsel for the petitioner was that the learned trial Court erred in law while applying. the provisions of Section 10(5) of The Muslim Family Courts Act, 1964.
6. However, judgment of learned Sindh High Court in "Ramjo Kolhi v. Shrimati Badi Kolhi and others"
7. (2004 YLR 1666) can be relied. A learned Family Court allowed Hindu married couple separation which was impugned before learned Sindh High Court however, judgment of Court below, was upheld that Hindu marriage was rightly allowed separation under the Act.
8. 8.At the stage of arguments, learned counsel for Respondent No. 2 contended that after dissolution of marriage through impugned judgment and decree dated 23.02.2016, Respondent No. 2 on 26.03.2016 entered into 2" marriage with one Bali Ram son of Parema Ramand and out of said wedlock a female child was born on 16.03.2017. In support thereof an affidavit of one Tharia Ram son of Lalu Ram (Hindu Pandit), resident of Chak No. 107/DNB, Tehsil Yazman, District Bahawalpur has been placed on record.
9. It is noteworthy that this Court while issuing pre-admission notice on 29.03.2016 subject to notice susthpended the operation of the impugned judgment. However, the affidavit is showing that marriage had already been solemnized between Respondent No. 2 and Bali Ram on 26.03.2016 few days prior to issuance of injunctive order.
10. 9In view of above facts and circumstances, I do not feel it legally justify to interfere into the impugned judgment in exercise of writ jurisdiction. Furthermore, in the impugned judgment learned trial Court placed reliance on West Pakistan Family Courts Act, 1964 which is not showing that it is only meant for Muslims. The parties to the suit are undoubtedly citizens of this country, therefore, the respondent rightly filed the suit for separation before family Court and had obtained the judgment dated 23.02.2016. In view of all these facts there is no need to interfere in the impugned judgment.
11. 10.It will be beneficial to observe that as respondent had entered into second marriage out of which a female child has born, as is established on the basis of affidavit of a Pandit. If at this stage the impugned judgment is set aside, it will not only invite legal complications but also social problems regarding legitimacy of newly born baby which is not appreciable for the society. While exercising constitutional jurisdiction, I am not inclined to interfere into the impugned judgment in view of discussion above and also on this additional ground.
11. For the foregoing reasons, instant petition is dismissed with no order as to costs.