MUHAMMAD NAEEM ANWAR, J.- Through instant petition filed under Article 199 of the Constitution ofislamic Republic of Pakistan, 1973 (the Constitution), the petitioners have assailed order of the learned Judge Family Court- Shangla at Alpuri dated 11.08.2023, whereby marriage between the spouses (petitioner No.1 and respondent No.1) was dissolved on the basis of khula at the stage of pre-trial reconciliation proceedings while invoking the provision of section 10 (4) of the West Pakistan Family Courts Act, 1964 (the Act of 1964).
2. Short facts of the instant petition are that respondent No.1 has filed a suit before the learn6d Family Court for dissolution pf marriage on:the basis of cruelty, recovery of dower, recovery of dowry articles, recovery of maintenance allowance, recovery of Rs.2,50,000/-, etc., with contention that the entire dower, which was fixed as 10 Iola gold, is still outstanding against the petitioner/ husband irrespective of this fact that at the time of nikhsati 04 tola gold was handed over to her but thereafter, it was snatched from her and that she remained in house of the petitioner for a period of 11-months but was treated with cruelty and on a number of occasions, the petitioner/ defendant has pronounced talaq but resiled from the version of pronouncement of talaq. The petitioners/ defendants were put on notice, who contested the suit through their written statement on different legal and factual objections. During the course of pre-trial.reconciliation proceedings, which was held on 11.08.2023, the learned Judge Family Court has come to the conclusion that there is no chance for the parties to live together in the bond of nikah, thus, dissolved the marriage on the ground of khula in consonance with section 10 (4) of the West _Pakistan Family Courts Act, 1964 (the Act of 1964), whereas rest of the controversies were left for decision after recording of evidence, for which, the following issues were framed by the learned trial Court: 1) What was the dower of the plaintiff and whether it has been paid to her?
2) Whether plaintiff is entitled for her alleged dowry articles or its market value i.e., 7,00,000/-?
3) Whether the plaintiff is entitled for the maintenance as claimed in headnote of the plaint?
4) Relif.
3. Learned counsel for the petitioner, while making a reference of .Ayal No.35 of Surah Al-Nisa, submitted at the bar that a specific procedure has. b6en provided in the original text (nus) and if not followed, neither the proceedings conducted could be held legal nor any legal effect can be given to the proceedings towards the pronouncement of talaq through the decree of the Court on the ground of khula. He made reliance on the cases of "Nisar Vs. Mst. Fait' zia and 02 others" (2019 YLR 1945) and submitted that proviso to section 10 (4) of the Act of 1964 has been held to be contrary to the provision of Article 35 of the Constitution. He also made reliance on the case of "Imran Anwar Khan Vs. Government of Punjab through Secretary Law, Lahore and others" (PLD 2022 Federal Shariat Court 25) wherein the provisions of section 10 (5) & (6) were held repugnant to Sharjah with effective date of 6th of May, 2022, the judgment of the Federal Shariat Court in Shariat Petition No.16/1 of 2022, whereby certain provisions of the Act of 1964 were assailed but same was dismissed on 06.10.2023 and the judgment of the Larger Bench of this Court dated 21.05.2009 in the case of "Dr. Fakhr-ud-Din Vs. Mst. Kausar Takreem and others" (PLD 2069 Peshawar 92) and submitted that the procedure adopted by the learned Judge Family Court, while dissolving the marriage on the ground of khula in consonance with section 10 in juxtaposition with sub-section 3 & 4 of the Act of 1964, has committed an illegality, thus, the impugned order of the learned trial Court is against Shairah and Constitution as well. He added that Article 35 of the Constitution protects the marriages, family, mother and child.
4. Contrarily, learned counsel for the respondent No.1, while making reliance upon the cases of "Muhammad Failsa Khan vs. Mst. Saida and another" (PLD 2023 Peshawar 12), "Mst. Yasmem Gul Vs. Muhammad Zubair and 02 others" (PLD 2020 Peshawar 173), "Zahir Akhtar Vs. Mst. Saima Zia and 06 others" (2021 YLR 570), "Mst. Seema and others Vs. Wajid Ali and others" (2022 CLC 709, Sindh) and "Muhammad Ali Haider Vs. Syed Nasir Abbas Naqvi" (2011 YLR 1240, Lahore), requested for dismissal of the instant petition.
5. Arguments heard and record perused.
6. The case law relied upon by learned counsel for the respondent No.1 pertains to the determination of rest of the issues in connection with marriage of the parties, dissolution thereof; recovery of maintenance and other ancillary reliefs, for which in almost all the cases, the matter was posted to be decided after recording of evidence but with dissolution of marriage by invoking the provision of section 10 (4) of the Act of 1964, to which, learned counsel for the petitioner has got no objection. When we questioned the learned counsel for the petitioners as to whether he is challenging/ assailing the vices of proviso to section 10 (4) or section 10 of the Act of 1964 in entirety, who submitted at the bar that neither section 10 (3) & (4) of the Act of 1964 nor the proviso thereto is offending the "nus" of the text of the Holy Quran nor it is against any provision of the Constitution but Article 35 of the Constitution protects marriages, family, mother and child, thus, the manner, in which, the Courts are dissolving the marriages being based upon the failure of the pretrial reconciliation proceedings is alarming and a question mark, whereby the decrees in family cases especially, pertaining to dissolution of marriage are reached to a high level, which was not the mandate of the Act of 1964 and the intention of the legislature as well. We have gone through from the text of the Holy Quran, wherein a procedure has been provided for dissolution of marriage/talaq but even then, when it is seen in juxtaposition with the pre-trial reconciliation proceedings conducted before the Court, we observe that the family Courts are adopting the procedure by inquiring the parties, making interrogations and questioning them, intending to resolve the matter, amicably. In the judgment of the Federal Shariat Court (supra), sub-section 5 & 6 of section 10 of the Act of 1964 through amendment of Punjab were in question and were held to be repugnant to the Constitution/law with an effective date and the provisions were held not to be the part of the Statute. In another judgment of the Federal Shariat Court, an individual filed the Shariat Petition No.16/1 of 2022 which was dismissed on 06.10.2023. Insofar as the judgment of this Court reported as 2017 YLR 1945 (supra) wherein certain observations were made and the matter was rendered to Federal Secretary of Law to bring the provisions of section 10 of the Act of 1964 in consonance with Islam is concerned, this Court has formed an opinion, the matter was referred, however, it is now the Provincial subject after 18th Constitutional amendment but even then before us, vires of the section 10 of the Act of 1964 or any sub-section or clause of it has not been questioned specifically, by the present petitioner. The contention of learned counsel for the petitioners that dissolution of marriage forthwith was one of the provisions, which were held repugnant to the Constitution and law by the learned Federal Shariat Court. At the cost of the petitioners, we have gone through from the proviso to section 10 (4) of the Act of 1964 and we are of the firm view that neither it offends Article 35 of the Constitution, objective resolution of article 2- A of the Constitution or any other provision of the Constitution nor it is repelling to Ayat No.35 of Surah Al-Visa. Merely by not referring the matter to Muslih being appointed by the parties and conducting pre-trial reconciliation proceedings by the Judge Family Court himself /herself would not amount to derogation of law, violation of law, repugnancy to Constitution, inconsistency to the provisions of law towards sustainability thereof.
7. Apart from the above, we have directed the presence of the parties before the Court and inquired the matter regarding' the grievance of the plaintiff/wife who submitted at the bar that not only she was divorced at home on a number of occasions by the petitioner/ husband with retracted stance, which is going to the orbit of Islam with reference to marital obligations and this fact has been witnessed on so many occasions by the inmates of the house. She (the wife) was asked as to whether in any circumstance, either by providing maintenance allowance, amount of dowry articles, payment of dower, separate accommodation and even providing of all basic needs of life by the petitioner No.1, could she live with him, she submitted at the bar that it is not possible for her to take her abode to the house of petitioner .and to live with him within the prescribed limits ordained in the Hoy Quran and Sunnah. At this juncture, we also questioned the petitioner No.1 and all this was done when the father of the respondent No.1 Was not inside the Courtroom. In such circumstances, when the Court has held pre-trial reconciliation proceedings and reached to a conclusion that, at any cost, respondent Nol/ wife is not ready to live with the petitioner within the limits ordained in the Holy Quran and Sunnah, the learned Family Court was having no other option but to dissolve the marriage and that too on the ground of khula, leaving rest of the matters to be decided on the basis of the evidence to be produced by the parties in respect of their respective contentions.
8. It is _well settled principle of law that where it is apprehended that the spouses cannot keep together within the limits ordained by Almighty God then the marriage has to be dissolved after directing the wife who claims dissolution of marriage to return the benefits whatever she has derived from her husband. This right is provided through Ayat No. 229 of Sural Al-Baqara, the English translation of which runs as under:-- "Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (their) go with kindness, and it is not lawful for you to take any part or what you have given them, unless both fear that they cannot keep within the limits of Allah; then if you fear that they cannot keep within limits of Allah, there is no blame on them for what she gives up to become free thereby. These are the limits of Allah, so do not exceed them, and whoever exceeds the limits of Allah, these are the unjust." in the translation of word Shiqaq Maulana Abdul Kalam Azad answered in Tarjman-ul-Qur'an, page 284: - "lt is not contemplated by a marriage that the parties should be tied together in all circumstances, nor that the wife should be just a means of satisfaction of the passions of the husband. The object of the marriage is the creation of a perfect and happy life by the conduct of the spouses and such a life can only be created if there be mutual love and affection and if the limits imposed by God be observed. If for some reasons this is not possible, the object of the marriage has been defeated and it is necessary that the door be opened to the parties for a change. If on the object of the marriage being defeated, separation has not been allowed to the parties, this would have been a cruel limitation of the right of free choice and society would have been deprived of a happy married state of life."
9. Thus, in view of the above, neither there is any illegality or infirmity in the impugned order nor the provision of section 10 (4) of the Act of 1964 is inconsistent to Article 35 to the Constitution, as such, the instant petition has got no merits, which is hereby dismissed in Iimine.