1. ' SALEEM AKHTAR, J.---This appeal with the leave of the Court challenges the judgment of the learned Single Judge of the High Court by which the Constitution petition filed by respondent No, 5 was partly allowed as the order, judgment and decree passed by the Family Court as confirmed by the Learned Additional District Judge were declared to have been passed without lawful authority but it was also held that the divorce pronounced by respondent No, 5 was not in accordance with the Fiqah Jafria and respondent No, 1 continued to be the wife of respondent No, 5 and further that certain provisions of section 7 of the Muslim Family Laws Ordinance are not valid being in conflict with the Injunctions of Islam.
2. ' Respondent No, 1 and respondent No, 5 were married at Karachi on 13-9-1979 in accordance with Fiqah Jafria. The marriage was duly registered in conformity with the rules prescribed under the Muslim Family Laws Ordinance, 1961 and it was admittedly consummated. Difference arose between them and as alleged by respondent No, 5, respondent No, 1 without his consent stayed with her parents and refused to perform her conjugal obligations. Respondent No, 5 pronounced divorce on 10-2-1982 in the presence of witnesses and communicated the same to respondent No, 1 by registered post which was duly received by her. Respondent No, 5 also complied with the requirements of section 7 of the Muslim Family Laws Ordinance hereinafter referred to as the 'Ordinance' and intimation was sent to the Chairman, Union Committee, the respondent No, 4.
3. Respondent No, 1 disputed the validity of divorce through her letter dated 8-3-1982 addressed to respondent No, 4, copy of which was sent to respondent No,
5. On receipt of this letter respondent No, 5 addressed another letter dated 11-4-1982 to respondent No, 4 and reiterated the pronouncement of Talaq. Respondent No, 4 issued notice to respondents Nos.1 and 5 as required by the Ordinance. However, in furtherance of Talaq orally pronounced on 10-2-1982, respondent No, 5 executed a deed of divorce dated 8-3-1982 on a non-judicial stamp paper which was sent to respondent No,4. In the deed of divorce respondent No, 5 also stated that he had appointed respondent No, 4 as his Vakil to recite Seegha in accordance with Fiqah-e-Jafria. Respondent No, 1 then filed Suit No, 619 of 1982 in the Court of XVIII Civil Judge, Karachi for declaration and injunction praying therein that the divorce deed may be declared invalid and against Fiqah-e-Jafria.
4. Injunction was also sought against respondent No, 4 restraining him from confirming the divorce.
5. An application under section 151, C.P.C. Was also filed by respondent No, 1 for stay of operation of the divorce deed. This application was granted against which respondent No, 5 filed Family Appeal No, 155 of 1982 which was dismissed on 12-9-1983 by the learned VIII Additional District Judge, Karachi.
6. ' Family Suit No, 619 of 1982 filed by respondent No,1 was decreed as prayed. Respondent No, 5 preferred Family Appeal No, 18 of 1985 which was dismissed by the Learned Second Additional District Judge, Karachi by judgment dated 20-4-1986. Respondent No, 5 challenged these judgments in Constitution Petition No, 37 of 1986 which was disposed of by the impugned judgment. However, while dealing with the petition, the Learned Single Judge dilated in detail on the effect of Article 2A of the Constitution and the Constitutional validity of the Ordinance. The Federal Government appealed A against this judgment. Leave was granted to consider the questions raised as they involved Constitutional question of general importance.
7. ' A perusal of the entire case will show that respondents Nos. 1 and 5 professed Fiqah Jafria.
8. Respondent No, 5 divorced respondent No, 1 who challenged the validity of divorce on the ground that the divorce was not valid according to Fiqah-e-Jafria. An examination of the prayer in suit filed by respondent No, 1 and the Constitution Petition filed by respondent No, 5, it is clear that the issue was whether the divorce was valid according to Fiqah Jafria. It did not attract any other question of Constitutional nature. The prayer in suit filed by respondent No, 1 was as follows:-- "(a) Decree for declaration that the deed of divorce dated 8-3-1982 and of 10-2-1982 and the divorce so pronounced by the defendant No, 1 is invalid and against the principles and law of Fiqah Jafria.
(b) Declaration that the marriage between defendant No, 1 and the plaintiff and their legal status, character and relations as husband and wife shall continue to subsist and shall not be effected by such a divorce.
(c) Declaration that defendants Nos. 2 and 3 shall have no jurisdiction and authority to confirm such divorce and act upon such divorce deed.
(d) The defendant No, 1 be restrained from contracting another marriage and the other defendants be directed to abstain from acting upon the divorce deed.
(e) Costs of the suit be awarded."
9. ' Respondent No, 5 in his written statement had taken the plea that the suit was not maintainable.
10. The Court had no jurisdiction to grant declaration and permanent injunction. It was pleaded that he had pronounced the divorce and the requirements under section 7 of the Ordinance were complied with and further that a deed of divorce was executed in writing in continuance of the earlier divorce and that the divorce pronounced by respondent No, 5 was in accordance with the Fiqah Jafria and was fully effective. The suit was decreed as prayed and after, the dismissal of his appeal, respondent No, 5 filed Constitution petition challenging the said judgments seeking following reliefs:-- "(a) To declare that the Talaq pronounced and communicated by the petitioner on 10-2-1982 to the respondent No, 1 and re-affirmed by the written Divorce Deed dated 8-3-1982, is valid in the eyes of law and that the respondent No, 1 ceased to be the legally-wedded wife of the petitioner since 10-2-1982.
(b) To declare that the Family Suit No, 619/1982 instituted by the respondent No, 1 against the petitioner and respondents Nos. 4 and 5 in the learned Family Court and all proceedings conducted therein, all orders passed therein either on the original side or on the appellate side, are ab initio void, illegal, without jurisdiction, without any legal effect and not binding either upon the petitioner or upon the respondents Nos. 4 and 5.
(c) To direct the respondent No, 5 to issue the confirmation of divorce certificate in vogue back dating the same to a date which falls due as the expiry date of the period of 90 days after the receipt of intimation dated 10-2-1982 under section 7 of the Muslim Family Laws Ordinance, 1%1 sent to him by the petitioner.
(d) To restrain the respondent No, 1 from claiming herself to be the legally-wedded wife of the petitioner and claiming any benefit from him as such by way of maintenance, except maintenance of Iddat period for three months since 10-2-1982."
11. ' In her counter-affidavit respondent No, 1 did not take any legal objection challenging the validity of the Ordinance. It may be noticed that at no stage respondents Nos. 1 and 5 had challenged the validity and vires of the Ordinance. In fact they seem to have relied upon it and referred to it frequently in their pleading. By the impugned judgment it was held:-- "In view of the above, I am of the view that no valid Talaq as required by the Shia Law was pronounced by the petitioner. It may, however, be added that notwithstanding this observation, the petitioner will be at liberty to pronounce fresh Talaq to his wife keeping in view the requirements prescribed under the Shia Law.
12. ' Now, I revert to the reliefs claimed in the petition, as already quoted by me in the opening para. Of this judgment. For the detailed reasons, as aforesaid, the declaration as sought in sub-para (a) is refused. The Talaq pronounced by the petitioner on 10-2-1982 is invalid in the eye of Shi'ah Personal Law to which the parties admittedly belong. Relief as sought in sub-para (b) is granted. The orders impugned in this petition viz. Order dated 18-10-1982 and judgment and decree dated 30-7-1984 passed by the learned Family Court on the original side, as well as order dated 12-9-1983 and judgment in appeal dated 24-2-1986 by the appellate Court are declared as passed without lawful authority and of no legal effect. The prayer contained in sub-para. (c) is refused, as no valid divorce was pronounced by the petitioner. The relief claimed in sub-para. (d) is also refused. No injunction can be granted to the petitioner as respondent No, 1, in the circumstances of the case, continues to be the wife of the petitioner."
13. ' Therefore all the Courts have held that the Talaq pronounced by respondent No, 5 was not in accordance with Fiqah Jafria and was invalid. The learned Single Judge while holding Talaq to be invalid by the impugned judgment set aside the judgment and decree passed by the learned trial Court and the Appellate Court holding that they had no jurisdiction to entertain the suit which should have been filed before a Civil Court of competent jurisdiction.
14. ' The effect of the impugned judgment is that the suit filed by respondent No, 1 stands dismissed for want of jurisdiction by the Family Court but relief has been granted by holding that the divorce was not in accordance with the Fiqah Jafria and was thus invalid. It was further held that under section 7 of the Ordinance inter alia the provision for providing 90 days from the date of notice of Talaq for effecting the Talaq as final is against the provisions of Qur'an and Sunnah relating to Talaq and the learned Judge refused to recognise these provisions. As there was no valid Talaq the question to consider the validity of the Ordinance did not arise. In this background a confused situation has arisen. Although the proceeding/initiated by respondent No, 1 and the judgment passed by the two Courts were held to be without jurisdiction and without lawful authority, the relief was practically granted by the High Court on the basis of evidence and documents produced before the learned Family Court. The fact remains that the Constitution petition had arisen from the suit filed by respondent No, 1 in a Court which was held not competent to entertain and adjudicate it. On that assumption, the learned trial Court and Appellate Court, therefore, could not have passed any valid order, or judgment. In the Constitution petition, the learned Single Judge passed the same order and thus in fact decreed the suit holding that Talaq was not valid. The impugned judgment on this aspect may be justified on the ground that as the Court was exercising discretionary power and having come to the conclusion that the Talaq was not valid, partly refused to grant remedy under Article 199 as it would have perpetuated injustice. This would have concluded the entire case and finally decided the entire controversy. The learned Single Judge however proceeded to consider the validity of the Ordinance which had not been challenged by the parties. It was an issue of general importance and required deep consideration not by the learned Judge himself but by hearing the advocates, Ulemas and scholars of different school of thought and shades of opinion.
15. This issue by itself is sensitive having far-reaching effect on life and fabric of the society. It, therefore, required opinion of not only scholars of our country and if possible of the Muslim Ummah.
16. ' Mr. Aziz A. Munshi, the learned Attorney-General contended that unless the validity and vires of a statute is challenged, the Court of its own should not take the onerous duty of declaring a law as invalid. He has referred to a passage from Interpretation of Statutes by N.S. Bindra revised by Dr. Tahir Mahmood, 7th Edition, 1984 which reads as follows:-- "The decision of a case will be rested on grounds which do not involve a determination as to validity of the statute, if there be any such in the case. It is only when the question of the power of the Legislature under the limitations of the Constitution is the very gist and marrow of the case that the Courts will give their judgment on this point. Courts do not embark upon unnecessarily wide or general inquiry and confine their decision, as far as may be reasonable practicable within the narrow limits of the controversy arising between the parties in the particular case. The Courts will ordinarily refuse to decide upon the constitutionality of a statute except when the decision is necessary to the final disposition of the case. The highest Court in the realm follows its traditional practice of refusing to decide Constitutional questions when the record discloses other grounds of decision, whether or not they have been properly raised before it by the parties. The Court will not formulate a rule of Constitutional law broader than is required by the facts to which it is to be applied."
17. On 13-4-1992, the same Advocates mentioned in the title had appeared and it was noted in the order-sheet as follows:-- "Mr. Aziz A. Munshi, learned Attorney-General informs the Court that a Full Bench of this Court has reserved a judgment which involves inter alia, the question as to the scope of Article 2A of the Constitution which may be relevant for the present case. It seems that the Advocates who are appearing before us except Mr. Abbas Zia are of the view that section 7 of the Family Laws Ordinance is intra vires of Article 2A of the Constitution. Mr. Abbas Zia wishes to rely upon the impugned judgment and he has nothing to further add to the judgment."
18. Applying the principles reproduced above to the present case, in our view, there arose no occasion to consider the validity of the Ordinance and the principles governing the exercise of jurisdiction were not observed. In the circumstances, we allow the appeal only to the extent that in view of the concurrent finding which is based on facts and law that the divorce pronounced by respondent No, 5 was not valid as it was not in accordance with Fiqah Jafria, we will restrict the effect of the impugned judgment to that extent and refuse to grant declaration or issue a writ as prayed, as it will perpetuate injustice and cause unnecessary litigation and harassment to respondents Nos. 1 and 5 who during the hearing have informed this Court that they have contacted each other and 'are in the process of amicable settlement of their dispute.
19. ' Before parting with the judgment we may observe that we have noticed in the newspapers, the judgment of the Full Bench of this Court in which principles for interpreting Article 2A and its effect have been laid down and shall apply to the present case as well.