' Briefly the facts are that respondent No,2 instituted a suit for dissolution of marriage on various grounds including the ground of Khula' . The petitioner filed a suit for restitution of conjugal rights.
Both the suits were consolidated and pre-trial reconciliation proceedings were conducted.
Respondent No,2 appeared in Court and stated that she did not want reconciliation with the petitioner. Thereafter, the issues were framed on 2-11-2002 and the case was adjourned to 23-11- 2002 for the evidence of respondent No,2/plaintiff. On 29-11-2002 the petitioner filed an application before Judge Family Court upon the assertion that proper opportunity for reconciliation meeting was not given to the parties and that if such an opportunity is provided, there was every chance of reconciliation. The said application however, was dismissed by the Judge Family Court. The learned Judge Family Court, thereafter invoked the provisions of section 10(4) of the Ordinance LV of 2002 which provides that in a suit for dissolution of marriage the same is to be decreed forthwith in case of failure of pre-trial reconciliation proceedings without putting the parties to trial. Regarding the dower amount it was held that respondent No,2 had not received any dower which was differed in nature. As no dower was received, no order for the restoration or return of the same could be made. The suit of the respondent No,2 thus stood decreed and dissolution through Khula' was granted to her vide judgment dated 21-12-2002. The suit for Restitution of Conjugal Rights was simultaneously dismissed.
2. The present writ petition seeks to challenge the judgment dated 21-12-2002 of the. Judge Family Court to be declared to be in the absence of lawful authority. The provisions of section 10(4) of Ordinance LV 2002 are also sought to be struck down on the allegation that the same are violative of Injunctions of Qur'an and Sunnah.
3. The learned counsel for the petitioner contends that the provisions of section 10(4) of the West Pakistan Family Courts Act, 1964 as amended are against the injunctions of Islam, are discriminatory in nature and also offend against Article 2A or Article 227 of the Constitution of Islamic Republic of Pakistan.
4. It is also contended by the petitioner that the suit for dissolution of marriage was instituted on 16- 9-2002. The amendment of the Family Courts Act, 1964 was made subsequent to the filing of the suit and thus could not operate retrospectively to effect the proceedings already pending.
5. On the other hand, the learned counsel for respondent No,2 has contended that the provisions of section 10, subsection 4 as amended do not violate the provisions of Article 2A or Article 227 of the Constitution and cannot be struck down on this score. Regarding retrospectivity of legislation it is contended that no one has any vested right in the procedure. The amendment brought in the cases of dissolution by Khula' the amendment is merely procedural in nature and being so such amendment shall always be construed to be retrospective in nature. Reliance is placed upon Ghulam Mustafa Khairati v. Federation of Pakistan and another 1998 SCM R 1603.
6. Arguments have been heard and record perused.
7. According to proceedings conducted by Judge Family Court it transpires that the parties were given an opportunity of pre-conciliation proceedings. That No,2 appeared at that stage and unequivocally declared that there is no chance of reconciliation. How and in what manner the conciliation proceedings are to be conducted by the Judge Family Court is a matter within the exclusive jurisdiction of the said Special Tribunal. Respondent No,2 is stated to have made a categorical statement before respondent No,1 that no reconciliation was possible.
8. In this view of the matter, it is idle for the petitioner to argue that a more detailed and personalized opportunity should have been given in reconciliation. The application moved by the petitioner has already been dismissed by the Judge Family Court. No interference in this behalf is called for in the findings of the learned Judge Family Court.
9. The proviso added to section 10(4) through Ordinance LV of 2002 is indeed procedural. Whereas, in cases other than suits for dissolution of marriage pre-trial and post-trial reconciliation proceedings are envisaged, the case of the dissolution of marriage has been set apart on a different pedestal. This is indeed to alleviate the lot of womenfolk of this country which is indeed the basic purpose and object of all family laws.
10. The learned counsel for the petitioner has not been able to point out any principle of the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah which prohibit such a procedure in cases of dissolution of marriage. Article 2A the Objectives Resolution and Article 227 are reproduced as under:- 2A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.
Objectives Resolution ' Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which he has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; This Constituent Assembly representing the people of Pakistan resolves to frame a constitution for the sovereign independent State of Pakistan; ' Wherein the State shall exercise its powers and authority through the chosen representatives of the people; ' Wherein, the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; ' Wherein the Muslims shall be enable to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set put in the Holy Qur'an and the Sunnah; ' Wherein adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures; ' Wherein, the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall from a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; ' Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief faith worship and association, subject to law and public morality; ' Wherein the independence of the Judiciary shall be fully secured; ' Wherein the integrity of territories of the Federation, its independence and all its rights including its sovereign rights on law, sea and air shall be safeguarded; ' So that the people of Pakistan may prosper and atain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity.
Article 227.
' All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is pregnant to such Injunctions.
11. There is no cavil with the proposition that all the existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. However, as herein-before stated, the learned counsel for the petitioner has not been able to point out any repugnancy to the Injunctions of Islam which may be contained in proviso to section 10(4) of the Family Courts Act, 1964.
12. It may also be stated at this juncture that the Federal Shari& Court is constituted under Article 203-B of the Constitution while its principal jurisdiction and functions have been enumerated in Article 203-D of the Constitution. According to the said Article, the Federal Shariat Court may either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Hobly Qur'an and Sunnah.
13. In this view of the matter, even if there was any force in the contention of the petitioner that the proviso to section 10(4) of the Family Courts Act, 1964 offended any Injunctions of Islam his appropriate remedy law before the Federal Shariat Courts.
14. It is trite law that all Procedural laws are retrospective in nature. That being so there is no fore in the submissions of the petitioner that the procedure provided in the amended section 10 (4) would not apply to the suit of the respondent No,2.
15. In view of the above the writ petition is without merit and is hereby dismissed leaving the parties to bear their own costs.