' MUFTAKHIRUDDIN, J.--The petitioner Bharoo son of Haji is aggrieved of the judgments of the Civil Judge and Family Judge, Lasbella passed on 31-1-1984 whereby a decree for dissolution of marriage with Mst. Sayan respondent No.2 had been passed and his suit for restitution of conjugal rights has been dismissed.
2. The facts of the case are that the petitioner had filed a suit for restitution of conjugal rights against the respondent No.2 on 9-1-1981 in the Court of respondent No.1. The suit was contested by the respondent No.2 and it was contended that during the last sixteen years of married life the petitioner had been very cruel to her though she had born nine children during this period and it is not safe to return to him. Later she filed a suit for dissolution of marriage. Both the suits were filed in the same Court. The defence taken by the respondent No.2 was in fact the ground for dissolution of marriage in the suit filed by her.
3. The learned Civil Judge/Family 'Judge, Lasbella recorded the evidence of the parties and after due consideration of the same came to the conclusion that on account of rough treatment of the petitioner the respondent No.2 had to leave the house of the petitioner alongwith his two children who have survied out of the nine children born and during this period of two years the petitioner has not cared to look after her and the children and nothing was paid for maintenance and while she was in the house of the husband she had not been allowed to keep fast by the husband and prevented to observe the religious duties. This attitude of the husband has led to altercation many a times and on the count of the persistant maltreatment meted out to the respondent (wife) she was found entitled to live separately and since the circumstances of the case led to a state of affairs where it was difficult for the parties to live together within limits prescribed by Allah. The marriage was dissolved. Since the marriage had been dissolved as a natural consequence thereof the suit for restitution of conjugal rights was dismissed. The copy of the decree of dissolution of marriage was sent to the concerned Local Council for "further proceedings under the law".
4. It has been urged by the learned counsel for the petitioner that since the suit of the petitioner was pending the subsequent suit filed by the wife was liable to be stayed. We enquired from the learned counsel if such an objection was made in the written statement filed by his client or any application in that behalf was made as the copy of the written statement of the petitioner to the suit for dissolution was not filed/annexed with this petition filed in the High Court and he was candid enough to concede that no objection was taken. The reply of the counsel is the answer to his own objection. The contention of the learned counsel, therefore, does not deserve any consideration and is repelled.
5. The learned counsel next made a submission that the family Court did not make an effort for reconciliation between the parties after the close of the evidence of both sides as required under section 12 of the Family Courts Act and in that behalf relied on this omission in the order sheet of the Court. We find from the record that the learned Judge was conscious of the importance of the provision relating to conciliation before the recording of the evidence and thereafter. He in fact made such an effort before recording the evidence on 19-6-1983, as is indicated by the order that reads:- [URDU TEXT] 'The omission on the part of the learned Judge to record the failure of reconciliation appears to be an accidental error. We say so because we find that after passing the decree for dissolution of marriage he ordered the record to be sent to the concerned Local Council as laid down in section 21(2) which provision reads:- "Section 21.--Provisions of Muslim Family Laws Ordinance to be applicable.--(1) (2) when a Family Court passes a decree for the dissolution of a marriage solemnized under the Muslim law,, the Court shall send by registered post, within sev,en days of passing such decree, a certified copy of the same to the appropriate Chairman referred to in section 7 of the Muslim Family Laws Ordinance, 1961 and upon receipt of such copy the Chairman shall proceed as if he had received an intimation of Talaq required to be given under the said Ordinance."
' On the receipt of the decree from the Court the Chairman has to proceed in the same manner as he has to do after the receipt of intimation of Talaq from the husband and shall constitute an arbitration council for the purpose of bring about a reconciliation between the parties and the Arbitration Council shall take all steps necessary to bring about such reconciliation. The Talaq or Decree of the Court, shall not be effective until the expiration of ninety days from the day on which the notice is delivered to the Chairman (sections 7 (3) and (4) of Muslim Family Laws Ordinance.
' The decree of dissolution of marriage in the instant case was passed on 31-1-1984 (the copy whereof was obtained by the petitioner on 29-2-1984. He had made the application for copies on 31-1-1984 the day the judgment was announced). We enquired from the learned counsel for the petitioner the reason why he did not make an effort for reconciliation before the Arbitration Council to be appointed by the Chairman and so hurriedly filed this Constitutional petition in the High Court. We received no answer from the counsel. To test the bona fide of the petitioner in urging this objection we asked the counsel of the parties if any reconciliation was possible, the counsel for the respondent No.2 produced the respondent before us but the petitioner did not appear though Mr.Iftakhar, Advocate admitted that he had come to the Court. We are, therefore, obliged to conclude that this objection is not seriously being urged. If the petitioner honestly felt that he can persuade the wife to reconciliation the chance could be availed before the Arbitration Council which chance is still open to him as no arbitration council so far is constituted. The contention of the learned counsel for the petitioner turns out to be only technical which we are not persuaded to give effect to in the circumstances of the instant case. We feel that no fruitful result would follow if for this legal/technical objection the case is remitted to the family Court Judge. The equity is not in favour of the petitioner.
6.We have noticed that the respondent No.2 is an elderly woman of advanced age and had born nine children from the wedlock; two of them are still alive and are being brought up by her on charity of her brothers as the maintenance is wilfully not being provided by the husband for the last so many years. Normally a wife in, her late stage of life in our society does not demand separation unless compelled by circumstances. The learned Judge Family Court has considered the evidence and has come to the conclusion that cruelty and maltreatment to the respondent is established on record. We have examined the record and found that there exists on record the material on which such a finding is possible.
' For the above reasons we cannot persuade ourselves to interfere in the matter. The petition is accordingly dismissed with no order as to costs.