1. SARDAR MUHAMMAD RAZA, J. Abdullah S/o Sher Zaman has .called into question, under Article 199 of the Constitution, the judgment dated 28-11-1998 passed by Judge Family Court Mansehra; whereby, a decree for dissolution of marriage stands granted to Mst. Shaheen, the wife of Abdullah on the material ground, inter alia, of impotency.
2. 2.Without referring to the minor or major details of evidence on record we are convinced at the very outset that the learned Judge Family Court had acted without jurisdiction and also has exercised the jurisdiction not vested in her. She had failed to apply the law in its true sense.
3. 3.A decree based on impotency is covered by section 2(v) proviso (c) of the Dissolution of Muslim Marriages Act, 1939 where proviso (c) reproduced below is of prime importance.
4. "(c) before passing a decree on ground (v) the Court shall, on application by he husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground."
5. 4.No family Court can pass a decree for dissolution of marriage on the ground of impotency of husband unless, on the application of the husband, the latter is required to satisfy the Court within one year from the date of such order that he has ceased to be impotent. If the husband so satisfies the Court within such period, qua the same woman involved, no decree shall be passed on the ground of impotency.
6. 5.In the instant case the decree was passed by Mrs. Muneera Abbasi learned Judge Family Court Mansehra on 28-11-1996 but before that, on 10-11-1996 the husband had filed an application (Annexure-F) the contents whereof fully covered the requirements of proviso (c) and hence no decree could be passed unless further requirements of proviso (c) were complied with. The husband had to be provided time to satisfy the Court within the given period that he was not impotent. The learned Judge Family Court utterly failed to exercise the jurisdiction vested in her, in accordance with law.
7. 6.While parting we may also remark that the impotency of the husband was based on the only evidence furnished by the Lady Doctor to the effect that the hymen of the wife was intact and that, hence, she was a virgin. The learned Judge was probably not aware of the settled medical and scientific phenomenon that the factum of hymen. being intact, is not a conclusive proof of virginity.
8. The hymen in certain cases is so flexible that it is not ruptured and at times is ruptured by the incidence of first delivery. Such type of singular evidence, we observe, must be appreciated by the Courts in the light of the aforesaid scientific and medical reality.
9. 6-A. The evidence on record indicates that the husband and the wife have tried to produce their own medical certificates by consulting the Doctors themselves and without having been referred for such examination by the Court. Thfs indicates a touch of personal involvement and, hence, the better approach would have been to get the parties medically examined through the Court. We would direct that the Court shall refer both the parties to be examined by a medical board for the required determination.
10. 7.With these findings and observations the writ petition is accepted, the impugned judgment is set aside and the case is remanded back to the learned Judge" Family Court for giving decision afresh after complying with the provisions of proviso (c) to section 2 of the Dissolution of Muslim Marriages Mt. Parties are directed to appear before the Trial Court on 21-2-1998 with C direction that the trial shall be concluded without the least of the required delay.