' The validity of the judgment and decree passed by the learned Additional District Judge, dated 14- 12-1981 is impeached in this Constitutional petition.
2. The material facts between the parties are not contested. The undisputed facts necessary for the disposal of this petition are: that Mst. Kaniz Fatima, herein the petitioner, and Sardar Wali Muhammad, herein the respondent, were married to each other on 14-9-1975. At the time of marriage, prompt dower of Rs,30,000 and 20 tolas of gold and monthly maintenance of Rs,200 was fixed. These terms of marriage were incorporated in the Nikahnama registered under the provisions of Muslim Family Laws Ordinance, 1961, hereinafter described as "Ordinance".
3. The relations between the parties became strained and in the year 1977, Mst. Kaniz Fatima lodged a complaint before the Martial Law Authorities to redress her grievance in respect of non-payment of maintenance as well as non-payment of prompt dower. Before the Martial Law Authorities, the parties executed a written compromise agreement on 22-9-1977. Under this agreement Sardar Wali Muhammad undertook to make a payment of Rs,10,000 as prompt dower. He also undertook to give five tolas of gold to the petitioner. It was also agreed between the parties that the divorce between the parties will take effect from 1-11-1977. As a consequence of this compromise, Mst. Kaniz Fatima received Rs,10,000 and five toles of gold and acknowledged that the marital tie between the parties had come to an end. She further undertook to have no further claim in future.
4. Notwithstanding the aforesaid compromise, Mst. Kaniz Fatima filed a suit for recovery of remaining dower and a suit for maintenance in the Court of Family Judge on 9-3-1978 on the ground that the compromise agreement was the result of coercion by the Martial Law Authorities, that no notice of dissolution of marriage in pursuance of compromise agreement was given to the Chairman Union Council under section 7 of the Ordinance and therefore, the marriage between the parties was still subsisting. Prayer was made for the grant of decree of the remaining amount of prompt dower i.e, Rs,20,000 and maintenance from May, 1977 upto the date of the decision of the suit. The suit was contested.
5. The learned Judge Family Court by judgment and decree, dated 26-10-1980 decreed the suit in respect of the remaining dower amounting to Rs,20,000 and granted maintenance at the rate of Rs,200 p.m. Against Sardar Wali Muhammad from May, 1977 to the date of passing of the decree.
6. Appeal by Sardar Wali Muhammad succeeded before the learned Additional District Judge who varied the finding of the trial Court on the question of the non-payment of dower as well as the maintenance. The learned first Court of appeal granted the decree for maintenance upto 1-11-1977.
Appellate Court came to the conclusion that the divorce had become effective between the parties from 1-11-1977 under the compromise agreement. Hence this petition by Mst. Kaniz Fatima.
7. Learned counsel for the petitioner, in support of the petition, at the very outset, stated that he would not dispute the finding of the first Court of appeal in respect of dower and recovery of the golden ornaments. It was represented by him that in view of the compromise agreements Exhs. D.1 and D.2 he was satisfied with the finding of the first Court of appeal. It was only the finding on maintenance which was challenged before me.
8. Challenging the finding of the Additional District Judge on maintenance, the learned counsel for the petitioner placed reliance on Section 7 of the Ordinance. It was argued that in pursuance of compromise agreement, dated 1-11-1977, no notice was given under section 7 ibid. It was contended that the service of notice to Chairman, Union Council and proceedings thereafter under section 7 ibid were of compulsive nature. The marriage, therefore, subsisted on account of the contravention of provisions of Section 7 ibid. It was submitted that the petitioner was, therefore, entitled to decree for the maintenance upto the date of decision. Reliance was placed on Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51) and Abdul Mannan v. Safuran Nessa (1970 SCMR 845).
9. Attention of the Court was invited to section 8 of the Ordinance by which the provisions of section 7 ibid were mutatis mutandis made applicable to all the types of divorces including the divorce by the consent of the parties. Reliance was placed on Mst. Ghulam Fatima v. Abdul Qayyum and others (PLD 1981 SC 460), PLD 1987 Journal 127, PLD 1987 Journal 171 and PLD 1987 Journal 186.
10. On the other hand.Learned counsel for the respondent supported the impugned decision. It was submitted that section 7 of the Ordinance was only applicable where marriage was dissolved by the husband alone on the ground that the husband was competent to revoke the marriage. It was.
Contended with vehemence that the provisions of Section 7 ibid were un-Islamic as it provided fetters on the absolute right of husband to 'annul the marriage. It was contended that by virtue of Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973, the Courts were competent not to enforce any law which was against the basic principles of Islam. The strength was sought from the rule laid down in Messrs Bank of Oman Ltd. v. Messrs East Trading Co. Ltd. And others (PLD 1987 Kar. 404) wherein it was held that the provisions of Section 7 of the Ordinance were against the injunctions of Holy Qur'an and Sunnah on the basis of the aforesaid authority. It was proposed that the objection of the petitioner was entirely misconceived and merited to be rejected.
11. It will be appropriate to mention that the Court sought the assistance of Mirza Anwar Beg and Mr. Bashir Ahmad Ansari, Advocates. Members of the High Court Bar Association, Rawalpindi. They appeared before the Court as amicus curiae on the question that whether the provisions of the Family Laws Ordinance, 1961 were against the basic principles cf Islam. Mr. Bashir Ahmad Ansari because of his pre-occupation in the Supreme Court could not appear while Mirza Anwar Beg assisted the Court with his scholarly arguments. He brought to the notice -of the Court the precedents reported as Muhammad Salah-ud-Din Khan v. Muhammad Nazir Siddiqui etc. (1984 SCMR 583), Abdul Mannan v. Safuran Nessa (1970 SCMR 845), 1987 SCJ 239, Mirza Qamar Raza v.
Mst. Tahira Begum and others (PLD 1988 Kar. 169), Aijaz Haroon v. Inam Durrani (PLD 1989 Kar. 304) and Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287) and was of the view that the Objectives Resolution was not enforceable through this Court.
12. I have heard the arguments and will proceed to adjudicate the respective contentions of the parties one by one.
13. As already indicated above, the controlling facts were not disputed before me. It is not in dispute that the parties were married to each other; that the relations between them took unhappy turn; that Mst. Kaniz Fatima lodged an application to the Martial LaW Authorities wherein compromise agreement was entered into by the mutual consent of the parties; that she received Rs,10,000 as a dower amount and five tolas of gold and undertook that she would have no future claim.
14. The questions calling for determination in this petition are as follows: -
(i) Whether sections 7 and 8 of the Muslim Family Laws Ordinance, 1961 offend the basic principles of Islam as laid down in the Holy Qur'an and Sunnah?
(ii) Whether this Court has jurisdiction on account of newly-added Article 2-A of the Constitution of Pakistan to declare and treat the provisions of the Ordinance as un-Islamic and, therefore, ineffective?
(iii) Whether the marriage is still subsisting on account of contravention of the provisions of Section 7 of the Ordinance and Mst. Kaniz Fatima is entitled to the decree for maintenance upto the decision of the cause?
15. I will take up the questions formulated above one by one.
' As far as the question whether the provisions of the Ordinance were in conflict with the divine commands, it will be necessary to examine the history of the Muslim Family Laws Ordinance (Ordinance VIII of 1961). This Ordinance was promulgated on 2nd of March, 1961 by the President of Pakistan In order to give effect to recommendations of the Commission on Marriage and Family Laws for the purposes of alleviation of Muslim Women Ind to provide some curbs on too facile pronouncements of divorce and unnecessary or unjustified plural marriages i.e, polygamy in the country. The Ordinance was given protection under the Constitution of 1962 and Constitution of 1973. This protection was not taken away even when on 5th of July, 1977 the Constitution was suspended by General Muhammad Ziaul Hal. It was in this period that Presidential Order No,1 of 1980 was promulgated wherein Chapter 3-A was added in the Constitution and Articles 203-A, 203-B, 203-C, 203-D, 203-E and 203-F were provided. By this Constitutional amendment, a Federal Shariat Court was established and was given powers to decide on its own motion or on the petition of a citizen of Pakistan or the Federal Government or the Provincial Government to examine and adjudicate the question whether any existing law or provision of law was repugnant to the Injunctions of Islam, as laid down in Holy Qur'an and Sunnah of the Holy Prophet (Peace Be Upon Him). The Muslim Family Laws Ordinance, however, was kept outside the jurisdiction of the Court and remained blessed with the Constitutional protection. It was on 30th of December, 1985 when the Constitution was revived. The Ordinance remained as an excepted legislation in the First Schedule.
16. Before we take the indepth study of the applicable laws it will be necessary to examine the scheme of the Constitution. The Objectives Resolution was provided as a preamble in this Constitution, while in Chapter I it was provided that Islam shall be the State Religion of Pakistan. In Article 31 of the Constitution, it was provided that steps shall be taken to enable the Muslims of Pakistan individually and collectively to order their lives in accordance with the Fundamental Principles and Basic Concept of Islam and to provide facilities where they may be enabled to understand the meaning of life according to the Holy Qur'an and Sunnah.
17. In Part IX in order to achieve the aforesaid objective, Council of Islamic Ideology was provided which was given the task of making recommendations to Majlis-e-Shoora and the Provincial Assembly as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as laid down in the Holy Qur'an and Sunnah, to advise a House, a Provincial Assembly, the President or Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of Islam; to make recommendations for the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; to compile in a suitable report for guidance of Majlis-e-Shoora (Parliament) and the Provincial Assemblies such Injunctions of Islam as can be given legislative effect.
18. It was further provided under Article 230 that when a question is referred by a House, a Provincial Assembly, the President or a Governor to the Islamic Council, the Council shall, within fifteen days thereof, inform the House, the Assembly, the President or the Governor, as the case may be, of the period within which the Council expects to be able to furnish that advice.
19. It was also provided that the Islamic Council shall submit its final report within seven years of its appointment, and shall submit an annual interim report. The report whether interim or final sh 11 be laid for discussion before both Houses and each Provincial Assembly within six months of its receipt and Majlis-e-Shoora (Parliament) and the Assembly, after considering the report shall enact laws in respect thereof within a period of two years of the final report.
20. Chapter 3-A was added by the President where Articles 203-A, 203-B, 203-C, 203-D, 203-F, 203- G and 203-GG were added to the Constitution. By this Chapter a Constitutional Court known as Federal Shariat Court was established. This Court was given powers to the effect that it may either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (Peace Be Upon Him). The Federal Shariat Court was required to give reasons for holding that opinion as to any law or provision of law was repugnant to the Injunctions of Islam. The Court was required to determine the extent to which such law or provision was repugnant and specify the day on which the decision shall take effect.
21. By virtue of Article 203-F -any party to any proceedings before the Court under Article 203-D was given the right to prefer an appeal to the Supreme Court within 60 days on such decision while Federation or the Province was allowed six months time to file appeal before the Supreme Court (Appellate Shariat Court Bench). It was further provided that except the Federal Shariat Court, no other Court including Court, Tribunal, including the Supreme Court and High Court shall have the jurisdiction in respect of the matter within the jurisdiction of the Federal Shariat Court.
22. Articles 203-A, 203-C(1), 203-D, 203-F, 203-G and 203-H are reproduced below:- 203-A Provisions of Chapter to override other provisions of .Constitution.--The provisions of this Chapter shall have the effect notwithstanding anything contained in the Constitution.
203-C. The Federal Shariat Court.--(1) There shall be constituted for the purpose of this Chapter, a Court to be called the Federal Shariat Court.
X X X X X XXX X X X X X X X X X 203-D. Powers, jurisdiction and functions of the Court--(1) The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is 'repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet [Peace Be Upon Him), hereinafter referred to as the Injunctions of Islam.
(1-A) Where the Court takes up the examination of any law or provision of law under clause (1) and such law or provision of law appears to it to be repugnant to the Injunctions of Islam, the Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or to the Provincial Government in the case of law with respect to a matter not enumerated in either of those Lists, a notice specifying the particular 'provisions that appear to it to be so repugnant and afford to such Government adequate opportunity to have its point of view placed before the Court.
(2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision: -
(a) the reasons for its holding that opinion; and
(b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall make effect; ' Provided that no such decision shall be deemed to take either before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or where an appeal has been so preferred, before the disposal of such appeal.
(3) If any law or provision of law i, held by the Court to be repugnant to the Injunctions of Islam --
(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative list or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and
(b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.
203-F. Appeal to Supreme Court.--Any party to any proceedings before the Court under Article 203-D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court: ' Provided that an appeal on behalf of 'the Federation or .Of a Province may be preferred within six months of such decision.
(2) The provisions of clauses (2) and (3) of Article .203-D and clauses (4) to (8) of Article 203-E shall apply to and fn relation to the Supreme Court as if reference in those provisions to Court were a reference to the Supreme Court.
(2-A) An appeal shall lie to the Supreme Court from any judgment, final order or sentence of the Federal Shariat Court - if the Federal Shariat Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or imprisonment for life or imprisonment for 'a term exceeding fourteen years; or, on revision, has enhanced a sentence as. Aforesaid; or
(b) if the Federal Shariat Court has imposed any punishment on any person for contempt of the Court.
(2-B) An appeal to the Supreme Court from a judgment, decision, order or sentence of the Federal Shariat Court in a case to which the preceding clauses do not apply shall lie only if the Supreme Court grants leave to appeal.
(3) For the 'purpose of the exercise of the jurisdiction conferred by this Article, there shall be constituted in the Supreme Court a Bench to be called the Shariat Appellate Bench and consisting of--
(a) Three Muslim Judges of the Supreme Court; and
(b) Not more than . Two Ulema to be drawn up by, the President to attend sitting of the Bench as ad-hoc members thereof from amongst the Judges of the Federal Shariat Court or from'out of a penal of Ulema to be drawn up by the President in consultation with the Chief Justice.
(4) A person appointed under paragraph (b) of clause (3) shall hold office for such period as the President may determine.
(5) Reference in clauses (1) and (2) to "Supreme Court" shall be construed as a reference to the Shariat Appellate Bench.
(6) While attending sittings of the Shariat Appellate Bench, a person appointed under paragraph
(b) of clause (3) shall have the same power and jurisdiction, and be entitled to the same privileges, as a Judge of the Supreme Court and be paid such allowances as the President may determine.
203-G Bar of jurisdiction.-- Save as provided in Article 203-F, no Court or Tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court.
203-H. Pending proceedings to continue etc. -- (1) Subject to clause (2) nothing in this Chapter shall be deemed to require any proceedings pending in any Court or Tribunal immediately before the commencement of this Chapter or initiated after such commencement, to be adjourned or stayed by reason only of a petition having been made to the Court for a decision as to whether or not a law or provision of law relevant to the decision of the point in issue in such proceedings is repugnant to the Injunctions of Islam; and all such proceedings shall continue and the point in issue therein shall be decided in accordance with the law for the time being in force.
(2) All proceedings under clause (1) of Article 203-B of the Constitution that may be pending before any High Court immediately before the commencement of this Chapter shall stand transferred to the Court and shall be dealt with by the Court from the stage from which they are so transferred.
(3). Neither the Court nor the Supreme Court shall in the exercise of its jurisdiction under this Chapter have power to grant an injunction or make any ' interim order in relation to any proceedings- pending in any other Court or Tribunal.
23. It is needless to repeat that the Objectives Resolution was adopted by the first Constituent Assembly of Pakistan on 7th of March, 1949. This Resolution was incorporated as a preamble in the Constitution of 1956, in the Constitution of 1962 as well as in the Constitution of 1973. It was made a substantive part of the Constitution by virtue of Presidential Order No,14 of 1985 and Article 2-A was incorporated after Article 2 in the Constitution.
24. The Resolution had been the subject of attention before the superior judiciary.
25. In Miss Asma Jilani v. The Government of the Punjab PLD 1972 SC 139, his Lordship Mr. Justice Hamoodur Rehman, while speaking for the Court, observed as under:- "In any event, if a grund norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund-norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on 7th of March, 1949. This Resolution has been described by Mr. Brohi as the 'cornerstone of Pakistan's legal edifice' and recognized even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration". This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or Civil."
26. Ziaur Rehman v. The State PLD 1986 Lah. 428 is an authority which was decided by the Lahore High Court on 6th of July, 1972. Examining the constitutional position whether Objectives Resolution is a Super-constitutional document and the provisions of Constitution offending it can be struck down by the Court, it was held by Mr. Justice A.R. Sheikh that:- "After giving earnest consideration to the arguments on both sides, I find that under the grund norm, as enunciated in Asma Jilani's case, the trust for discharge of sovereign functions has been reposed in the people. They have to exercise their chocie in free and fair elections for a Constituent Assembly to frame the Constitution and thus the main purpose of the grund-norms is served. For the actual task of framing a Constitution for the country set before the popularly elected representatives of the people, the grund-norm is to serve as the external and internal limitation to actual exercise of authority by any sovereign, as postulated by A.V. Dicey. Put differently a popularly elected Constitutent Assembly exercising the delegated sovereignty of Almighty Allah is vested with plenary powers to frame a Constitution to achieve the goal, object and the basic ideology of Pakistan. If, however, the Constituent Assembly fails to fulfil its obligations, the remedy will be the resistance to be offered by the people to accept the Constitution and the complexity of the problem so arising will be settled on the political forum in the country and not before the Courts. I, therefore, hold that the Interim Constitution framed by the Constituent Assembly remains supreme not subject to judicial scrutiny as an ordinary Act of the Legislature in the sub-constitutional field.
Viewed thus the premises for both set of arguments that some provisions in the Interim Constitution offend against the grund norm or the Legal Framework Order (an invalid document not legitimised by the Supreme Court) disappears.
' For the same reason the Preamble and the Principles of Policy have been rightly described by the Attorney-General as basic ideology not actionable before the superior Courts".
27. In the same authority, his Lordship Mr. Justice Muhammad Afzal Zullah referred the Objectives Resolution as follows:- "The Objectives Resolution is Supra-Constitution'al Instrument which is unalterable and immutable and the present National Assembly has no power to enact any Constitution or law which either directly or indirectly contravenes any of the provisions of the said Resolution."
28. In the same authority, however, the majority did not agree with the views of his Lordship Mr. Justice Muhammad Afzal Zullah. It was held that the preamble of the Constitution and the Principles of Policy mentioned therein can only be treated as basic ideology but not actionable before the superior Courts.
29. The same case was examined by the Supreme Court in The State v. Ziaur Rehman and others (PLD 1973 SC 49). Speaking for the Court, his Lordship Mr. Justice Hamoodur Rehman, the Chief Justice observed as follows:- "I for my part cannot conceive of a situation, in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country the judiciary can claim to declare any of its provisions ultra vires or void. This will be- no part of its functions of interpretation. Therefore, in my view, however, solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the 'Constitution itself as being in violation of such a document. If in fact that document contains the expression of the will of the. Vast majority of the people, then the remedy for correcting such a violation will lie with the people and not with the judiciary. It follows from this that under our own system too the Objectives Resolution of 1949, even though it is a document which has been generally accepted and never been repealed or renounced, will not have the same status or authority as the Constitution itself until it is incorporated within it or made part of it".
30. The same was reiterated in Niaz Ahmad Khan v. Province of Sind (PLD 1977 Kar. 604).
31. Now I will pause here to examine the authorities decided by the superior judiciary after the Objecti Resolution was made the part of the constitution and Article 2-A was added.
32. In Messrs Bank of Oman Ltd. v. Messrs East Trading Co. Ltd. And others PLD 1987 Kar. 404, the question was considered that whether the provisions of Muslim Family Laws Ordinance were repugnant to the basic concepts of Islam and whether the High 'Court had the jurisdiction to adjudicate the Ordinance as repugnant to Islam in the context of Article 2-A of the Constitution. His Lordship Mr. Justice Tanzil-ur-Rehman, after the examination of the entire case-law and the Scheme of the Constitution came to the conclusion that Article 2-A of the Constitution was an enforceable provision of the Constitution and that the Court had the authority to declare any existing law repugnant to the Injunctions of Islam.
33. This view was again highlighted in Habib Bank Ltd. v. Muhammad Hussain and others PLD 1987 Kar. 612, Muhammad Bachal Memon v. Government of Sind through Secretary Department of Food and 2 others PLD 1987 Kar. 296 and Irshad H.Khan v. Mrs. Perveen Ajaz PLD 1987 Kar.
466.
34. Habib Bank Ltd. v. Messrs Waheed Textile Mills Ltd. PLD 1989 Kar. 371 is a case from Karachi jurisdiction, it is an authority for the proposition that Objectives Resolution despite the addition of Article 2-A cannot be considered as self-executing. His Lordship Mr. Justice Mamoon Kazi observed as follows:-- "I am accordingly of the view that the provisions of the Objectives Resolution read with Article 2-A of the Constitution cannot be given effect to by the Courts inasmuch as that no law in Pakistan can be tested by the Courts on the touchstone of the Objectives Resolution to bring it in accord with the Injunctions of Islam except within a limited sphere, as pointed out above, and the Courts in Pakistan are under a moral and legal obligation to give effect to the law in force in Pakistan. Consequently, even if the contention of Mr. Manji that charging of interest is prohibited by Islam, is accepted, still the laws in force in Pakistan permitting the plaintiff to charge interest on the principal amount due against the defendant must be given effect to."
35. From the foregoing analysis of the case-law, the Objectives Resolution and the Constitutional history of the Objectives Resolution, it is abundantly clear that Pakistan was created on the basis of the two Nations Theory rooted in the Ideology of Islam. The Founding Fathers, who constituted the First Constituent Assembly, were conscious of the Ideology of Pakistan. Accordingly the Objectives Resolution was the first step in direction. The Objectives Resolution indicates that it has nine clauses. It makes clear that the State shall exercise its powers and authority through chosen representatives of the people. It also postulates that Muslims shall be enabled to order their lives individually and collectively in accordance with the teachings and requirements of Islam as laid down in the Holy Qur'an. It also specifies that the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation whereas the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed. It also provides that the fundamental rights including equality of status, of opportunity and before law, social and political justice and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality shall be guaranteed. It also provides the commitment to establishment of independent judiciary. In brief the Objectives Resolution which now has been made substantive part of the Constitution, now contained the guidelines for the Constituent assembly to keep in view that the Constitution must guarantee the federal structure of the State, a rule by the people for the people and of the people, fundamental rights, independent judiciary and that the Constitution must enable the people of Pakistan to live in accordance with the Injunctions of Islam as laid down in Qur'an and Sunnah.
These were the parameters of Objectives Resolution based upon Ideology of Pakistan.
36. It is an established principle of law that the Injunctions of Islam are transcedental, in nature, immutable and unchangeable while the concept of federalism has come into being through evolutionary process of human experience.
37. A federation is union of various component federating units who by a common accord surrender the part of their authority in respect of matters relating to common interest. It is a blend of centripetal and centrifugal tendencies. The federating unit in this form retains their autonomy while for a common cause they surrender their authority in favour of the federal structure. As already noticed federation is a difficult feat of political engineering and is built upon certain common characteristics. Firstly a federation has a written constitution which defines and limits the authority of component units and the federation. It has the superior Court to interpret the Constitution and resolve the disputes with respect to authority of component units and federation.
Secondly, the Constitution is basic, fundamental, and paramount law, apart from the ordinary law.
The interpretation of the Constitution is sole prerogative of the superior Courts while the amendment in the Constitution is to be made by a special Constitutional procedure. In brief, the federation is built upon accord between federation and federating units and that accord is reflected in the Constitution which is the guarantee of survival of the federation.
38. On the nature of the constitution celebrated Constitutional writers Wade and Phillips' in Fifth Edition observed:-- "By a Constitution is normally meant a document having a special legal sanctity which sets out the framework and the principal functions of the organs of government of a State and declares the principles governing the operation of those organs. Such a document is implemented by decisions of the particular organ, normally the highest Court of the State, which has power to interpret its contents."
39. In Marbury v. Madison(1803) 1 Cranch 137 it was observed as follows: -- "The Constitution is either a superior, paramount law, unchangeable by ordinary means, it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable."
40. From the foregoing examination of applicable law, the relevant authorities and the constitutional history of the Objectives Resolution I am clear in my mind that the founding fathers were irrevocably committed to the principles of federalism and principles of democracy and were committed to the basic concepts of Islam as laid down in the Holy Qur'an and Sunnah. These three fundamental guidelines were provided to the framers of the Constitution who are required to frame the Constitution incorporating therein the aforesaid principles. I am, therefore, of the positive view that the change in the Constitution is prerogative of the legislature and not the Court. The Court, therefore, has no jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan to declare any constitutionally protected law to be invalid being repugnant to the Injunctions of Islam.
41. Yet there is another aspect of the case from which this question must be noticed. To begin with, the Constitution of 1973 provided the Council of Islamic Ideology. The Council was given complete powers to examine the existing law as to whether they were repugnant to the Injunctions of Islam or not. It was assigned the task of making report within seven years to the legislature. It was further empowered to examine any reference by the Provincial or Federal legislature in this context and send its report. From the provisions of Council of Islamic Ideology, it is also very clear that a Council was constituted with eminent scholars of Islam to make the report to legislature. Therefore, it was for the legislature to make existing laws in accord with the Injunctions of Islam.
42. It was in the year 1980 when the necessity for Federal Shariat Court was felt. Chapter 3-A was added, Federal Shariat Court was constituted. It was given the jurisdiction to examine and decide the question whether or not any law or the provisions of law are repugnant to Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of Holy Prophet (Peace Be Upon Him). Appeal was provided in the Appellate Bench of the Federal Shariat Appellate Court (Supreme Court). By virtue of Article 203-G, the jurisdiction of all other Courts/Tribunals including the Supreme Court. And High Court was ousted in respect of any matter, within the powers of the jurisdiction of the Federal Shariat Court. These provisions were a further step to bring the existing laws in conformity with the Injunctions of Islam.
' However, very wisely, the Constitution and all the other excepted laws under the Constitution were kept out of the ambit of this Federal Shariat Court.
43. It is an established canon of construction that when the Tribunal or the Court of exclusive jurisdiction is established, the jurisdiction of other Courts is taken away. On this very settled principle, I am very clear in my view that this Court has no jurisdiction to examine any question relating to any matter which is within the sphere of Federal Shariat Court.
44. Finally it is to be noticed that the constitutional jurisdiction of this Court is subject to the provisions of the Constitution. Article 199 of the Constitution is as follows:-- "199. Jurisdiction of High Court.
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law --
(a) on the application of any aggrieved party, make an order. x x x x- x x x x x x x x"
(The remaining part of the Article 199 is not being reproduced being unnecessary).
45. The meaning of the word "subject to" as given in Black's Law Dictionary, Fifth Edition are "liable, subordinate, subservient, inferior, obedient to, governed or affected by; provided that; provided; answerable for".
46. This Court is the creation of the Constitution and is, therefore, to make adjudication strictly in accordance with the Constitution. This Court cannot undertake the job of declaring any part of Constitution as ultra vires. I am, therefore, clear in my mind that this is the sole function of National Assembly.
47. In result, with deep respect for the scholarly eruid knowledge of his Lordship Mr.Justice Tanzil- ur-Rehman I am not in agreement with his view and I am of the view that Muslim Family Laws Ordinance, 1961 is a valid subsisting law.
48. Coming back to second question as to whether the marriage is still subsisting or not on account of the contravention of provisions of section 7 of the Ordinance. It is necessary to examine the rule laid down in a number of authorities.
49. The effect of the non-compliance with the provisions of section 7 of the Ordinance came into consideration in Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51) wherein it was held:-- "If the husband himself thinks better of the pronouncement of talaq and abstains from giving a notice to the Chairman he should perhaps be deemed, in view of section 7, to have revoked the pronouncement and that would be to the advantage of the wife. Subsection (3) of this section precludes the talaq from being effective as such, for a certain period and within that period, consequently, it would not be said that the marital status of the parties had in any way been changed."
50. On the question of applicability of section 7 for other type of divorce, it was laid down that:-- "The sphere of attempted conciliation seems to be further extended by section 8 of the Ordinance to cases of "Talaq Tafviz" and also to other forms of dissolution of marriage at the instance of either party, mutatis mutandis, and this throws further light on the objective aimed at by the Ordinance."
51. In the next case i.e, Abdul Mannan v. Safuran Nessa 1970 SCMR 845 Abdul Mannan married Mst.
Safuran Nessa and had a child by that marriage. Mst. Safuran Nessa applied under section 488 of the Code of Criminal Procedure for her maintenance and the maintenance of child. Learned Magistrate, Narayanganj, allowed the maintenance. The learned Single Judge of the High Court upheld the order of the learned Magistrate. Leave to appeal was refused by the Supreme Court wherein it was held that no notice of divorce was given to the Chairman under section 7 of the Ordinance and, therefore, the divorce was ineffective. The argument that the marriage was dissolved by the consent of the parties was not given effect to.
52. In Muhammad Nawaz v. Mst. Faiz Elahi and 2 others PLD 1978 Lah. 328), Muhammad Nawaz filed a suit for restitution of conjugal rights. The learned Judge Family Court refused the prayer on the ground that the marriage had come to an end by the consent of both the parties and as a result of Khula, and, therefore, the exercise of sending a cancellation or revocation application to and/or the Chairman conducting the proceedings and giving a cancellation certificate in that behalf is without competence and without lawful authority.
53. In Muhammad Salah-ud-Din Khan v. Muhammad Nazir Siddiqui and others 1984 SCMR 583, Muhammad Salah-ud-Din filed a petition against the judgment of the Lahore High Court. Salah- ud-Din and Mst. Tahira Siddiqui were married to each other, were living in Libya. On 30th of March, 1970, Salah-ud-Din sent a deed of divorce to her in Tripoli. Mst. Tahira died in 1975. Her father, mother and sister applied for issuance of Succession Certificate. Herein Muhammad Salah-ud-Din gave an application for being impleaded as a party on the ground that Mst. Tahira Siddiqui had died childless; that no notice of divorce in pursuance of divorce deed was sent to the Chairman under section 7 of the Ordinance, and therefore, the marriage was subsisting at the time of the death of Mst. Tahira Siddiqui. The first Court refused to accept the plea of Salah-ud-Din but the first Court of appeal varied the finding of the trial Court and came to the conclusion that marriage was subsisting on account of non-compliance with the provisions of section 7 of the Ordinance. The High Court in Revision petition set aside the judgment of the learned Additional District Judge and concluded that talaq had become effective after the expiry of 90 days of the receipt of divorce deed. The Supreme Court dismissed the leave to appeal with the following observations:-- "We observe that in the judgment relied upon by the High Court, namely, Muhammad Rafiq v.
Ahmad Yar PLD 1982 Lah. 825, the High Court unfortunately overlooked two pronouncements of this Court, dealing with the same question, namely, All Nawaz Gardezi v. Muhammad Yusuf PLD 1963 SC 51 and Abdul Mannan v. Safuran Nessa 1970 SCMR 845. In the first mentioned case it was observed that in view of the provisions of section 7(3) of the Ordinance a Talaq would become effective only after notice of Talaq is given to the Chairman and the period of three months provided for bringing about a reconciliation between the parties has expired. Where the husband does not give a notice of Talaq to the Chairman, it can be deemed that he has revoked the Talaq. While in the second case, namely, Abdul Mannan v. Safuran Nessa the view taken by this Court appears with great clarity from the following extract therefrom:- "The learned counsel for the petitioner concedes that no notice of the alleged divorce was given to the Chairman as required by section 7(1) of the Muslim Family Laws Ordinance. That being so the alleged divorce, in view of the express provision of subsection (3) of section 7 of the said Ordinance, is yet to become effective.
' It is manifest, therefore, that the view expressed by the Lahore High Court in Rafiq's case, which view was relied upon in his impugned judgment by the learned Judge while accepting the revision petition filed by the respondents, cannot be supported and is, in fact, erroneous.
' Be that as it may, we are not inclined to exercise our discretionary jurisdiction of granting leave to appeal to this Court to the petitioner in view of the peculiar facts and circumstances of this case."
54. Applying the principle laid down in Muhammad Salahud Din's case, I am not inclined to exercise the Constitutional jurisdiction in favour of the present petitioner in view of the uncontested peculiar facts that she herself filed a complaint before the Martial Law Authorities in order to seek redress in respect of non-payment of maintenance as well as non-payment of prompt dower, that both the parties entered into compromise by mutual consent, that the petitioner accepted the benefit under the compromise agreement, that she at the outset of the argument, acknowledged the part of the compromise agreement whereby she had received Rs,10,000 and five tolas of gold, that she had given acknowledgment to the effect that the marital tie between the parties had come to an end and that she will have no future claim whatsoever, that the order of the learned Additional District Judge is eminently just and proper.
55. From the resume of the facts of the case it is clear that both the parties contracted out of the provisions of section 7 of the Act and agreed not to have a recourse to arbitration proceedings before the Chairman Union Council, therefore, both of them waived the compulsory proceedings aimed at to restore the marriage.Therefore, the petitioner cannot claim the benefit of section 7 of the Act for the purpose of claiming maintenance.
56. For the reasons stated above, this writ petition is dismissed, the order of the learned Additional District Judge, dated 14-12-1981 is found to be not open to any exception.
57. For whatever has been stated above, this petition is dismissed. In view of the nature of the case, there shall be no order as to costs.