DISSOLUTION OF MARRIAGE UNDER ARTICLE 199 OF THE CONSTITUTION

DISSOLUTION OF MARRIAGE UNDER ARTICLE 199 OF THE CONSTITUTION <!--[if gte mso 10]> DISSOLUTION OF MARRIAGE UNDER ARTICLE 199 OF THE CONSTITUTION By Ch. Irshad Ahmad Former Federal Law Secretary Cases: 1. Bibi v. Ghulam Rasul PLD 1997 Lahore 108 2. Rasulan Bibi v. Additional District Judge PLD 1997 Lahore 229 In Bibi v. Ghulam Rasul, Family Court granted decree of dissolution of marriage to wife on the ground of Khula' subject to the condition that wife would forego her dower, claim for maintenance and dowry as consideration for Khula'. The wife sought judicial review of the decision of the Family Court by which it had conditioned the grant of Khula' on wife's foregoing claim for dowry under Article 199 of the Constitution. Justice Mrs. Fakhar-un-Nissa in the High Court held that "the finding of the Judge Family Court to the extent of considering dowry as Zar-e-Khula' is completely without lawful authority, jurisdiction and justification" and modified the decree of the Family Court to the extent excluding the dowry as zar-e-khula. In Rasulan Bibi v. Additional District Judge wife's suit for dissolution of marriage was dismissed by the Family Court. Her appeal was also dismissed by the District Judge. The wife sought judicial review of the decision of the Family Court and of the District Judge under Article 199 of the Constitution. Justice Mr. Saeed Ahmad Awan found that "wife had clearly made out her case for dissolution of marriage on the ground of Khula' and that the Courts below ignored material evidence and illegally dismissed the wife's suit and appeal". The High Court allowed the petition for judicial review, declared the judgement/decrees of the Courts below to have been passed without lawful authority and of no legal effect and decreed the wife's suit for dissolution of marriage on the ground of Khula'... 2. The relevant provisions of the Constitution which empower the High Court to declare the decision of a person including a judgment of a Judge of an inferior Court or Tribunal are contained in Article 199 (I) (ii). So far as material, they are:...a High Court, ... may, ... on the application of any aggrieved party, make an order declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the Federation, a Province or a local authority... has been done or taken without lawful authority and is of no legal effect. It is obvious that the above provisions do not transfer the statutory or legal powers of the person to make an order or take proceedings to the High Court. The scope of the High Court's power to declare an act done or proceedings taken by a person as having been done or taken without lawful authority and of no legal effect in the context of reviewing the decisions of inferior Courts and Tribunals is that if the High Court finds that there has been any legal error in the decision of the inferior Court or tribunal it shall declare the decision to have been taken without lawful authority and of no legal effect and restoring the parties to the position they held immediately before the inferior Court or Tribunal had made the decision. The High Court itself cannot decide the matter on merits. 3. Family Court has exclusive jurisdiction to grant decree of dissolution of marriage. The High Court cannot pass a decree for dissolution of marriage in exercise of its powers under Article 199(1)(ii) of the Constitution. When the High Court in a case under review found that there was a legal error in the decision of the Family Court the proper order that could be made was "that the decision of the Family Court is set aside and the case is remanded to the said Court to re-decide it in a manner that is not inconsistent with the decision of the High Court". When a High Court issues a writ of certiorari it in effect issues the writ to the person who did the act or took the proceedings that were found to be unlawful. The writ is not issued to the private parties to the decision. The effect of the writ of certiorari issued to an inferior Court or Tribunal is that the decision of the Court or tribunal would cease to have any legal effect leaving the parties to the position they occupied before the Court or the Tribunal made the decision. In the United States of America when a superior Court issues a writ of certiorari to a lower Court or Tribunal it concludes its order by saying that the order of lower Court or Tribunal is declared to be unlawful and of no legal effect, and the case is remanded to the Court or Tribunal for further proceedings consistent with its decision. Where a lower Court had taken proceedings which could not at all be taken under law the superior Court issues writ to the lower Court to dismiss the cause. The superior Court itself would not dismiss the cause.