' Mst. Salma Rani respondent No,1 . Sued the petitioner for dissolution of marriage on the plea of 'Khula' and habitual cruelty on his part during the period she remained in his house. Also it was alleged that he is leading an immoral and in famous life.
2. Averments allegations and claims were duly repudiated and controverted in the written statement submitted by the petitioner.
3. From the divergent pleadings of the parties the trial Court framed the following issues:-
(1) Whether the defendant has been treating the plaintiff with habitual cruelty? OP
(2) Whether the defendant is addicted to Narcotics? OPP
(3) Whether the defendant associated the illicit relation with the women of ill repute? OPP
(4) Whether the defendant failed to provide maintenance allowance to the plaintiff? OPP
(5) Whether the plaintiff is entitled to a decree for dissolution of marriage on the basis of Khula? If so on what terms and conditions? OPP
(6) Relief.
4. After recording evidence, wished to be adduced by both the sides and affording due chance of being heard, suit for dissolution of marriage was decreed on 19-5-1998.
5. Correctness, legality and propriety of such judgment and decree has been challenged, brought into question and asserted in this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 mainly on the ground that provisions of section 12 of West Pakistan Family Court Act, 1964 have not been complied with by the learned lower Court, while announcing the judgment and decree.
6. Aspects, factors, points and grounds urged in the petition have been reiterated to contend that without resorting to proceeding of post trial reconciliation as contemplated under section 12(1) of West Pakistan Family Court Act, 1964, the trial Court could not announce the judgment as such the entire proceedings are nullity in the eyes of law and stand vitiated and relied upon Hafiz ur Rehman v. Mst. Shamim Akhtar (1982 Law Notes (Lahore) 668), Muhammad Ishaq v. Ch. Ahsan Ahmad, Judge Family Court, Layallpur and another (PLD 1975 Lahore 1118) and Mst. Basra v. Abdul Hakim and 2 others (PLD 1986 Quetta 298).
7. On the other hand learned counsel for the plaintiff/respondent contended that non-compliance of provisions of section 12(1) of the Family Court Act does not entail the penalty as suggested by the learned counsel for the defendant/Petitioner. He contended that if such compromise or conciliation as contemplated under subsection (1) of section 12 is not possible, the Court is authorised to announce judgment and give a decree as laid down in subsection (2) of section 12 (ibid). He next argued that in the instant case the defendant/petitioner has been residing in Germany and had authorised his brother Muhammad Jameel to contest this suit, so the question of compromise or conciliation with him did not arise, that if under these circumstances compliance of section 12(1) of Family Court Act, 1964 is not made, it does not affect the proceedings and relied upon Rashid Tariq Khan v. Additional District Judge Lahore and others (1986 SCM R 1556) and Daulat Ali v. Shagufta Rani and another (1990 CLC 917 Lahore) wherein it has.Been held that failure to make efforts after close of evidence, is mere an irregularity on the part of trial Court and if does not affect the decision of given on merits. He thus submitted that there is no force in this petition and the same be dismissed.
8. The only point agitated and pressed into service is that trial Court while announcing judgment and decree dated 19-5-1998, did not comply with the provisions of section 12(1) of West Pakistan Family Court Act, 1964. There is no doubt that Section 12(1) lays down that after the close of evidence of both sides, the Family Court shall make another effort to effect a compromise or reconciliation between the parties. But subsection (2) of section 12 (ibid) also contains that if such compromise or conciliation is not possible, the Family Court shall announce the judgment and give a decree. Thus, the very language of section 12(2) (ibid) authorise the Court to announce judgment if compromise or conciliation is not possible. Looking to the facts of this case, it is evident from record that defendant/petitioner has been residing in Germany prior to 6-3-1997 and even the written statement was filed through his attorney. This proves that the defendant/petitioner was not available even in Pakistan at the time of post trial reconciliation proceedings, so, how could efforts to bring reconciliation between the parties----be resorted as contemplated by section 12(1) of the Act (ibid). This conduct of defendant/petitioner shows that there was no possibility of reconciliation between the parties and trial Court rightly proceeded to announce the judgment and decree as contemplated under section 12(2) of the Act.
9. In the circumstances borne out of record, no other conclusion than that arrived at by the learned Judge Family Court could be derived.
10. Hence, viewed from any angle instant petition merits dismissal and is hereby dismissed.