1. Facts of the case out of which this Constitutional petition has arisen are that Mst. Amina Bibi, respondent No. 1 in this writ petition was married to Mulazim Hussain petitioner at the age of 5/6 years. On attaining puberty, exercising her right of option of puberty, she repudiated the marriage and filed a suit for dissolution of marriage on that score which has been decreed by the learned Judge, Family Court, respondent No. 2 vide judgment and decree dated 18-4-1992 and suit for restitution of conjugal rights filed by the petitioner has been dismissed. This judgment and decree has been challenged by the petitioner in this Constitutional petition. Mr. Aziz Ahmad Malik Advocate has appeared on behalf of the petitioner and has raised the following contentions in support of this writ petition:--
(1) That the Presiding Officer of the Family Court---respondent No. 2 in this writ petition who has passed the impugned decree is not Muslim inasmuch as he is `Ahmadi' and, therefore, the decree granted by him is illegal, inasmuch as according to the learned counsel, Presiding Officer of a Family Court had to be a Muslim as in cases, triable under the Hudood Ordinances, as the parties are Muslims.
(2) That the marriage has already been consummated and, therefore, the respondent could not have repudiated the marriage;
(3) That the evidence produced by the respondent is not cogent inasmuch as no medical certificate has been produced from a doctor showing that the marriage has not been consummated and the respondent No. 1 is still virgin.
2. I have considered the arguments of learned counsel for the petitioner and have also perused the record. I have asked the learned counsel as to whether there is any issue out of the wedlock, learned counsel states that there is no issue. It has been admitted by the learned counsel during the course of arguments that the spouses are cousins and in spite of best efforts of the families it has not been possible that the respondent No. 1 lives with the petitioner as his wife. Learned counsel for the petitioner, however, states that in fact the respondent wants to live with the petitioner but other family members are interfering unnecessarily, as- a result whereof the parties are not living together as husband and wife. Learned counsel admits that the litigation between the parties is going on for the last two years and now has reached the stage of this Court. Admittedly, the age of the girl at the time of marriage was 5/6 years. In support of the case of the respondent, Amir Ahmad P.W. has stated that the respondent was married at the age of 5/6 years and that she has repudiated the marriage and further that she has never lived with the petitioner as his wife.
3. Ghulam Shabbir P.W.2 has also made a similar statement. Respondent Amina Bibi has appeared as her own witness as P.W.3 and she has also stated that she has repudiated the marriage which was performed during her minority and further that she has never lived with the respondent as his wife. This evidence 'is quite consistent and nothing has been brought out against the witnesses during the course of the cross-examination. As against the above evidence, the petitioner has produced Rab Nawaz D.W.1, Sadiq D.W.2 and Mulazim Hussain appeared as D.W.3. The witnesses produced by the respondent have admitted that the parties were married at the time when the respondent was minor. They have further stated that on attaining majority parents of the respondent No. 1 had sent the respondent with the petitioner. This witness has stated that at the time of Nikah, age of the respondent was 7-1/2 years and that of the petitioner was 10/12 years and it is 6 years thereafter that the Rukhsati took place. It means that at the time of alleged Rukhsati age of the girl was 13-1/2 years. The witness has further stated in cross-examination that after Rukhsati, the respondent lived with the petitioner for 8/9 months. Meaning thereby that at the time when allegedly she was taken back by her parents, age of the girl was less than 15 years. Therefore, alleged consummation which is not proved to have taken place during this period, will not be of any consequence. D.W.2 Sadiq has also made a similar statement which even if accepted as correct, will result in the similar consequence. Even according to the statement of the petitioner himself no consummation has taken place after the age of 15 years which is the presumptive age of puberty in Pakistan. Consequently, it stands established that the respondent was born on13-3- 1973 and filed a suit for dissolution of marriage on 14-11-1990 was well within her rights to repudiate her marriage which had taken place during the time when she was minor. Hence, the judgment rendered by the learned Judge, Family Court on merits is unexceptionable. Argument of learned counsel for the petitioner to the effect that the Presiding Officer of a Family Court should be a Muslim to decide the dispute of the nature in hand is misconceived. There is nothing in the Act which says that the Presiding Officer of a Family Court should always be a Muslim wherever the legislature intended that the Presiding Officer of a Court should be a Muslim, the same has been provided in the enactment itself as is the case of Hudood Ordinance. In view of this it cannot be said that Presiding Officer of a Family Court should always be a Muslim. Even otherwise in this case there is nothing on the record to prove that respondent No. 2 is not a Muslim. It has never been in fact plea of the petitioner before the learned Judge Family Court. Consequently, the argument is neither available to the petitioner nor can be allowed to be raised for the first time in this Constitutional petition. The impugned judgment and decree is just and fair and I see no ground to interfere therewith in exercise of my discretionary jurisdiction. Resultantly, this petition is dismissed in limine.