1995 PLP 731 (CLC)

In Islam, "Zaujain" are the one that complement one another. The physical shortcomings of one are complemented by another and vice versa. In this complementing union, the role of giving birth is entrusted to the female. In case she had some physical disability towards procreation, it becomes a valid ground for the husband to take second wife. This ground is recognized by Muslim Family Laws Ordinance. Conversely when such disability rests with the husband, the lady also should have the corresponding right to claim dissolution which should not be denied and does not run counter to any principle‑ of either law or morality. Rather, it is in accord with ground (ix) of section 2 of Dissolution of Muslim Marriages Act. (c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑ ‑‑‑‑S. 5 & Sched: ‑Constitution of Pakistan (1973), Art, 199:‑‑Suit for dissolution of marriage decreed by Family Court ‑‑‑Laches‑‑‑Decree granted by Court had become final for no appeal was filed against such decree‑‑‑Wife after decree had become final had contracted second marriage‑‑‑Husband after a lapse of more than six months challenging such decree through Constitutional petition‑‑‑Apart from the fact that Constitutional petition suffered from laches, facts and circumstances would not justify interference in the judgment of Trial Court. Muhammad Iqbal Kundi for Petitioner. SARDAR MUHAMMAD RAZA KHAN, J.‑‑‑Mst. Shamim Bibi daughter of Haji Hakeem Khan r/o Landiwah, Tehsil and District Lakki Marwat brought 2 suits, one for dissolution of marriage and the other for dower and maintenance allowance, against her husband Mouwi Mir Qalam Khan of Landiwah. The husband also brought a suit for restitution of conjugal rights against his wife. All the three suits were consolidated in the Court of learned Judge, Family Court, Lakki Marwat and after recording evidence, the learned Judge allowed dissolution and a dower amount of Rs.50 as against Rs.500 claimed by the lady. He disallowed maintenance as well as restitution of conjugal rights.

2. In such judgment dated 8‑5‑1994 the dissolution was avowed and the restitution denied mainly on the ground of impotence of the husband and that, in the circumstances, the spouses could not live within the limits ordained by Almighty Allah. Moulvi Mir Qalam has challenged such single judgment dated 8‑5‑1994 of Judge, Family Court, Lakki Marwat by invoking the Constitutional jurisdiction of this Court under Article 199.

3. We have heard Mr. Muhammad Iqbal Kundi, learned counsel for the petitioner at length who assailed the judgment on the ground that the medical certificate given by the Medical Superintendent. Bannu was never proved through appearance in witness‑box of such Medical Superintendent and that there existed no circumstances on record whereby one could infer or conclude that the relationship was strained and that the spouses could not live a pious life together. The objection of the learned counsel regarding the summoning of Medical Superintendent is not very material because the provisions of Evidence Act and Code of Civil Procedure except sections 10 and 11 thereof, do not apply to the proceedings before a Family Court. The unfortunate malady given in the certificate is abundantly proved from the strong circumstance that the husband could not contribute towards the birth of any issue. The submissions of the learned counsel require somewhat elaborate discussion in the light of other attending legal as well as factual circumstances of the case.

4. It is admitted that by the time the suits were brought, the union of the spouses had already lasted for about nine years. If despite this union, the lady in the given social. set‑up and traditional background, has brought a charge of impotency against her husband, it quite conceivably tells upon the circumstances and strained relationship between the parties. The certificate of the Medical Superintendent would suggest that the petitioner is suffering from the abnormality of spermatozoa. Obviously, his sperms are not capable of causing fertilisation. To have children and to procreate is the biological desire of a female without which she considers herself incomplete. The agony of a female would be boundless when she happens to note that the fault lies not with her but with him. This by itself is sufficient to bring about estrangement in the relationship and hence the learned Judge Family Court had rightly come to the conclusion that the parties cannot live together.

5. The impotency of a husband is generally taken for his inability to give emotional sexual satisfaction to that particular woman who happens to be his wife. In the instant case such aspect might not be missing but the absence of offsprings during nine years of union is a strong circumstance that is conducive to the hatred between the parties.

6. The husband has failed to take advantage of proviso (ii) (c) of section 2 of the Dissolution of Muslim Marriages Act, 1939 by not applying to the Court that he had given a period of one year to satisfy the Court, that he 'has ceased to be impotent. In the absence of his aforesaid application, the decree for the dissolution of marriage, within the contemplation of section 21 of the West Pakistan Family Courts Act, 1964, becomes effective after the expiration of 90 days. In this view of the matter the instant writ petition would serve no purpose, at all because after such 90 days the lady is rendered free to contract a second marriage and with particular reference to the Family laws, a writ petition brought 6 months 18 days after the passage of decree is most certainly barred under the principle of laches which becomes seriously attracted in the circumstances.

7. In Islam, "Zaujain" are the one that complement one another. The physical shortcomings of one are complemented by another and vice versa. In this complementing union, the role of giving birth is entrusted to the female. In case she has some physical disability towards procreation, it becomes a valid ground for the husband to take second wife. This ground is recognized by Muslim Family Laws Ordinance. Conversely when such disability rests with the husband, the lady also should have the corresponding right to claim dissolution which should not be denied and does not run counter to any principle of either law or morality. Rather, it is in accord with ground (ix) of section 2 bf Dissolution of Muslim Marriages Act.

8. Consequently we are of the view that the judgment was rightly passed in the circumstances which, in turn, do not justify our interference under Article 199 of the Constitution. This is in addition to the fact that the writ petition grossly suffers from laches. It is hereby dismissed in limine. AA./1703/P Petition dismissed.