' Mst. Janat Bibi petitioner filed a suit against respondent No, 1 for dissolution of marriage, on the ground of 'khula'. The latter sued her for restitution of conjugal rights the two suits were consolidated. On 20th July, 1980, the parties compromised and in this behalf the learned trial Court recorded their statements. Respondent No, 1 deposed that in case the petitioner returned his goods, ornaments etc. And cash or made an oath on the Holy Quran that none of his goods, were with her, he was prepared to pronounce the divorce. The petitioner accepted this offer. This is obvious from her statement recorded simultaneously by the learned trial Court. The case was thereafter adjourned for a number of dates for one reason or another, including that the parties needed more time to compromise.
2. On 3rd March, 1981 when the case came up for hearing before the learned Family Court, the respondent made a statement that he had received a few ornaments from the petitioner but some ornaments and articles were still with her which may also be given to him. He further raised a demand for payment of Rs, 8,000 as costs and Rs, 10,000 said to have been removed away by the petitioner from his house. He made the grant of the divorce contingent upon the petitioner's restoring of the said articles, ornaments and so also the payment of the amount aforesaid to him.
On the same date the petitioner made a statement that she was not possessed of respondent's any goods or ornaments or cash. After recording the statement of the parties the learned Family Judge adjourned the case to another date with the observation that they could not compromise.
Thereafter the parties' evidence was recorded. On evaluation thereof the learned Family Court on 13th March, 1981 dismissed the petitioner's suit and passed a decree for restitution of conjugal rights in favour of the respondent. The petitioner's appeal failed. She has now come to this Court for removal of the orders passed by the authorities below through judicial review.
3. I have heard the learned counsel for the parties. I feel that this writ petition has got to be accepted, for, the learned Courts below proceeded in disregard of the law on the subject, as enunciated by the Supreme Court and thus their judgments suffer from an error apparent on the face of the record. As stated earlier %hula' was one of the grounds, for dissolution of marriage. It was in this context, that the respondent offered to divorce the petitioner provided she restored to him, his ornaments etc. And in the alternate made an oath on the Holy Qura'n. Admittedly this offer was accepted by the petitioner. A valid agreement thus came into existence between the parties by which they were bound. Reference in this connection may be made to Mst. Asifa Sultana v.
Honest Traders, Lahore and another (1), in which the rule earlier laid down in Muhammad Akbar v.
Muhammad Aslam and another (2), was reiterated and it was maintained :- ' The offer to abide by the oath of the opposite party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and the circumstances of each case."
' On consideration of these two judgments in the case of Saleem Ahmad v. Khushi Muhammad (3), the Supreme Court observed ' The High Court rejected both the contentions and held that there was no ground in law or in equity on which the petitioner could claim the right of resoling from the solemn agreement which was entered into by him. Such an agreement was in the nature of a contract and one of the contracting parties could not be allowed to back out of it unless the contract was void or had become frustrated. None of these eventualities had occurred in this case.............................................................................................................................................
4. Such is the correct position in law, to which both the Courts below failed to adhear. The learned Family Court fell in error to record in the proceedings, dated 3rd March, 1981 that the parties could not come to a compromise. In law, a contract was already there between the parties, which partly had been acted upon by the petitioner, inasmuch as some ornaments were handed over by her to the respondents. I am informed by the petitioner's learned counsel that these ornaments are still with him. What remained to be done for effectuating the contract, was the making of the oath by the petitioner which according to her learned counsel she was always ready to make. It was not a, case of failure of the parties to come to a compromise but of the respondent's resiling from the agreement. In these circumstances, it was incumbent upon the learned Family Court to have first considered as to whether or not there was justification to relieve the respondent of his contractual obligation. It, therefore, acted illegally in proceeding with the recording of the evidence and giving a decision on merits, without attending to the said aspect of the case.
(1) PLD 1970 SC 331 (2) PLD 1970 SC 241
(3) 1974 SCMR 224
5. It may be added that the failure of a Tribunal to follow the law laid down by the superior Courts, as maintained in Muhammad Sharif and 1L another v. Muhammad Afzal Sohail (1) furnished a valid basis for judicial review.
6. For the foregoing reasons, this writ petition is accepted, the impugned judgment and decree declared to have been passed without lawful authority and the case is sent back to the learned trial Court to decide it afresh. It shall first proceed to re-examine the case from the point of view as to whether or not the respondent can be permitted to resile from the agreement. If the answer is against him, the petitioner shall be required to make the proposed oath. In case she refuses to make the oath the case shall be decided on merits. The parties are left to bear their own costs and directed to appear before the learned trial Court on 5th November, 1983.
(1) PLD 1981 SC 246