Wednesday, 3 October 2018

PLJ 2015 FSC 33

PLJ 2015 FSC 33[Original Jurisdiction]
Present: Dr. Allama Fida Muhammad Khan, Sheikh Najam-ul-Hasan & Zahoor Ahmed Shahwani, JJ.
NADEEM SIDDIQUI--Petitioner
versus
Shariat Petition No. 5/L of 2013, decided on 16.4.2015.
----S. 5--Jurisdiction of Family Courts to entertain hear and adjudicate matters--Said act has already provided compromise or re-conciliation at pre-trial and post trial stages for that is definitely according to Injunctions of Islam--However, in case, compromise or re-conciliation fails and does not appear to be possible, then course to be adopted by Family Courts to settle matter has also been mentioned in said Act--It will be appreciated that Courts are constituted to resolve conflicts and settle disputes which crop up between various individuals including spouses, from time to time--Courts are bound by Constitution as well as by Injunction's of Islam to observe and administer justice between litigants/individuals in all circumstances--In case of spouses, jurisdiction to resolve their differences has been granted to Family Courts--On a Court question, as to how long Court should wait for passing an order in favour of one or other party, counsel was of opinion that family Court can not pass order for restitution of conjugal rights--Counsel could not satisfy Court as to how impugned section which authorizes family Courts to issue decree for restitution of conjugal rights, is repugnant to Injunctions of Islam--As mentioned above, he could cite no specific Verse or Hadith which puts embargo on Family Court and restrain it from passing an order for restitution of conjugal rights if wife is not ready for dissolution of marriage on basis of Khula--Shariat petition was dismissed.
                                                                                                                        [Pp. 36 & 37] A, B & E
----Wife is not entitled to maintenance, according to him, when she is not performing conjugal relations and is living separately and that too for some long indefinite period--This state of affairs would certainly amount to grave injustice and especially so if she has no independent appropriate source of income--On other hand, both husband and wife would suffer and experience mental agony in case they have some offspring from their wed-lock--One or other party would definitely suffer to obtain or maintain their custody--Moreover, Courts are required to settle disputes in one way or another.                                                                             [P. 36] C
`Khula’ or `Divorce’--
----If wife does not feel comfortable with her husband or vice versa, best course for either of them would be to go for dissolution of their marriage by way of “Khula” or “Divorce”--In case both are young, it might also lead to so many psychological, social and moral evils, also.                           [P. 36] D
Ch. Bashir Hussain Khalid, Advocate for Petitioner.
Date of hearing: 16.4.2015.
Judgment
Dr. Allama Fida Muhammad Khan, J.--The learned counsel for the petitioner has challenged Section 5 of the West Pakistan Family Court's Act, 1964 (hereinafter called the said Act) on the grounds that it is against the injunctions of Islam. The impugned section reads as under:--
“Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule”.
2.  We have heard the learned counsel for the petitioner. Placing reliance on several Verses of the Holy Quran pertaining to Divorce, and Verse No. 35 of Surah Al-Nisa, he contended that the impugned section empowers the Family Court to entertain, hear and adjudicate upon matters specified in the schedule. The schedule, inter-alia, includes “Restitution of conjugal rights” as well. The learned counsel vehemently contended that the Family Court cannot issue decree in matters of restitution of conjugal rights nor can force an un-willing wife to live with her husband against her wishes. The learned counsel dwelt at large on the need for efforts of reconciliation between the spouses who have developed differences and, as a result thereof, the wife has left the house of her husband and started living elsewhere, with her parents etc. During the course of arguments, the learned counsel conceded that in case she is living separately from the husband on account of strained relations, she may not be entitled to claim maintenance expenses from her husband.
3.  We have thoroughly considered the contentions of learned counsel and have duly appreciated these in the light of Verse No. 35 of Surah Al-Nisa, which reads as under:--
“And if you fear a breach between the two (husband and wife) then appoint an arbitrator from his people and an arbitrator from her people. If they both desire peace Allah will make them of one mind. Certainly Allah knows all, Aware about all things”.
A bare perusal of the above Verse makes it quite clear that re-conciliation efforts have been emphasized to effect compromise between the spouses, if their relations are strained. It has also been assured that if both the parties sincerely desire to patch up and ready to bury their hatchets, Almighty Allah will bless them with harmony and grant them a peaceful life. The Holy Quran has further emphasized that in any case, re-conciliation is far better.
4.  It is significant to note that the said Act has already provided for compromise or re-conciliation at pre-trial and post trial stages and that is definitely according to the Injunctions of
Islam. However, in case, the compromise or re-conciliation fails and does not appear to be possible, then the course to be adopted by the Family Courts to settle the matter has also been mentioned in the said Act.
5.  It will be appreciated that the Courts are constituted to resolve the conflicts and settle the disputes which crop up between various individuals including the spouses, from time to time. The Courts are bound by the Constitution as well as by the Injunction's of Islam to observe and administer justice between the litigants/individuals in all circumstances. In case of the spouses, the jurisdiction to resolve their differences has been granted to the Family Courts. On a Court question, as to how long the Court should wait for passing an order in favour of one or the other party, the learned counsel was of the opinion that the family Court can not pass order for restitution of conjugal rights. The learned counsel, however, could not cite any verse or Hadith to support his contention obviously, the stance taken by the learned counsel is neither logical nor judicious.
6.  The wife is not entitled to the maintenance, according to him, when she is not performing conjugal relations and is living separately and that too for some long indefinite period. This state of affairs would certainly amount to grave injustice and especially so if she has no independent appropriate source of income. On the other hand, both the husband and the wife would suffer and experience mental agony in case they have some offspring from their wed-lock. One or the other party would definitely suffer to obtain or maintain their custody. Moreover, the Courts are required to settle the disputes in one way or another. If the wife does not feel comfortable with her husband or vice versa, the best course for either of them would be to go for dissolution of their marriage by way of “Khula” or “Divorce”. In case both are young, it might also lead to so many psychological, social and moral evils, also.

7.  The learned counsel could not satisfy the Court as to how the impugned section which authorizes the family Courts to issue decree for restitution of conjugal rights, is repugnant to Injunctions of Islam. As mentioned above, he could cite no specific Verse or Hadith which puts embargo on the Family Court and restrain it from passing an order for restitution of conjugal rights if the wife is not ready for dissolution of marriage on the basis of Khula.
8.  In view of the above, the instant Shariat Petition having been mis-conceived, is dismissed, accordingly.

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