1. This petition under Article 199 of the Constitution of Islamic Republic o: Pakistan by Noor-ur- Rehman defendant in the family suit is against judgment and decree dated 13-2-1989 of Judge Family Court, Rawalpindi whereby he gave khula divorce to Mst. Zarina Jan and dismissed her claim for jactitation o marriage. Brief facts are Mst. Zarina Jan was married to Noor-ur-Rehman abou 12/13 years before the instant suit was filed. From this marriage, four children were born to them. As the relations between the parties were strained, Noor-ur Rehman gave irreversible divorce to Mst. Zarina Jan on 30-10-1986 which was stated to have been withdrawn before it became effective in law. Fact as to revocation of divorce was denied by Mst. Zarina Jan. She took the divorce as final and effective.
2. On 11-5-1987, Mst. Zarina Jan brought a suit for jactitation of marriage and in the alternative for khula divorce against Noor-ur-Rehman before the Family Court at Rawalpindi. Noor-ur-Rehman defendant in the suit resisted it. I was admitted by him that he gave the divorce on the stated date but before could be effective, it was withdrawn by him and thereafter the parties had live together as husband' and wife. It was further submitted that no notice under section 7 of Muslim Family Laws Ordinance 1961 was given to the Chairmain Arbitration Council. Grounds stated in the plaint for claiming khula were also controverted. It may .Be observed that Noor-ur-Rehman had also brought a suit for restoration of marital relations against Mst. Zarina Jan. Mst. Zarina Jan contested the claim for restitution of conjugal rights also. Both the suits which raised common issues of fact and law were consolidated for a joint trial by the Family Court. Efforts for reconciliation at the pre-trial hearing having failed, the Family Court settled following issues for determination:-
(1) Whether the plaintiff was validly divorced by defendant. If so, its effect? OPP.
(2) Whether the plaintiff is entitled for dissolution of marriage on the basis of khula. If so to what terms and condition? OPP
(3) Whether the defendant is entitled to the decree for restitution of conjugal rights? OPD
(4) Relief.
3. As said above, relief for jactitation of marriage was declined but the claim laid in the alternative for divorce on khula was allowed to the plaintiff Mst.Zarina Jan. As far jactitation of marriage, the trial Court' relied upon the judgment of Karachi High Court in Mirza Oamar Raza v. Mst. Tahira Begum and others PLD j'988 Karachi 169 and held that "A civil suit for jactitation of divorce lies and a suit for jactitation of marriage before Family Court is not competent. This being the position this Court is not competent to give any verdict regarding the finality of divorce between the parties." As far issue No.2, the Court held that since marriage had irretrievably broken down, plaintiff was entitled to khula divorce. In view of finding on issue No.2, prayer for restitution of conjugal rights was declined to Noor-ur-Rehman defendant.It is this decision of the Family Court that has been challenged in the instant petition by Noor-ur--Rehman through Syed Riaz Ahmad Pirzada Advocate. At the hearing it was contended in the Court that since the Family Court had no jurisdiction to entertain the suit in regard to jactitation of marriage it was not competent to grant khula divorce to respondent No.l. Except for the point of jurisdiction, findings on merits in regard to khula were not challenged in the writ petition. However, in course of hearing, Mr. Pirzada half-heartedly questioned the correctness of finding upon khula, but in absence of evidence led in this behalf having not been filed, found it difficult to urge anything, against it. Counsel's main stress was on absence of jurisdiction in the Family Court to entertain and try the suit as framed. It was submitted that as the claim for jactitation was beyond the jurisdiction of the Family Court, it had no jurisdiction to grant the relief for divorce claimed in the alternative. I do not think the contention has any real merits.
4. Plaintiff Mst. Zarina Jan had claimed that after pronouncement of effective divorce by Noor-ur- Rehman, matrimonial relationship between the two had come to an end and thereafter assertions of Noor-ur-Rehman claiming her to be his wife were false and could be silenced only through a claim for jactitation which lay within the exclusive jurisdiction of the Family Court. Khula was claimed in the alternative. I do not see as to why if a part of relief claimed by a litigant falls beyond the jurisdiction of the Court, he is not entitled to even that part of the relief which is within the exclusive jurisdiction of the Court to grant. It was not denied that suit seeking divorce could be filed only before the Family Court which alone had the jurisdiction to grant the relief. Section 5 of the Family Courts Act 1964 gave exclusive jurisdiction to the Family Court to entertain, hear and adjudicate upon the subjects specified in the Schedule. Dissolution of marriage as also jactitation of marriage both fall within the Schedule appended to the Family Courts Act, 1964. From the contents of the plaint in the suit filed by Mst. Zarina Jan, a case of jactitation of marriage was sought to be made out and the Family Court was competent to entertain it. I may with regrets point out that learned Judge Family Court who was subordinate to the Lahore High Court preferred to rely upon a judgment from Karachi High Court in preference to two judgments of the Lahore High Court reported as Mst. Amina Begum v. Ghulam Nabi and 2 others-PLD 1974 Lahore 78, Tajoo v. Mst.
5. Sattaran PLD 1974 Lahore 105 which were dissented from by Tanzil-ur-Rehman, J., in the above Karachi judgment. This was in clear disregard of Article 201 of the Constitution of Islamic Republic of Pakistan, 1973. It reads:- "201. Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it.
6. Article 189 of the Constitution reads "Any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan."
7. Therefore, if there is a conflict between the decision of the High Court and that of the Supreme Court, the decision of the Supreme Court must be followed as against the decision of the High Court. However in case of any conflict of opinion between two or more High Courts in Pakistan, the subordinate judiciary must receive guidance and follow the decision of the High Court to which it is subordinate. It is basic law and everyone who is invested with authority to administer justice is expected to know of it. It is not understandable as to how this basic rule came to be disregarded by the learned Judge Family Court. Learned Judge was obliged to feel bound by the precedent of the Lahore High Court because of jurisprudence of precedents and clear imperatives of Article 201 of the Constitution. Such like lapses are fraught with serious legal consequences. I have said enough to indicate my mind and in the existing circumstances, do not intend to pursue the matter further.
8. As for merits, petitioner has no case because of following two reasons. Firstly, finding on khula has not been seriously questioned and secondly, that evidence referred to in the impugned judgment was sufficient to sustain the finding. In this view, impugned judgment cannot be characterised as illegal or without jurisdiction. Consequently, writ petition is dismissed summarily.