P L D 1993 Quetta 1 (PLP)

IFTIKHAR MUHAMMAI? CHAUDHARY, J.‑‑‑Petitioner Mst. Dilshad Sultana daughter of Ashiq Hussain Khan, had approached this Court through Constitutional Petition for the following relief.‑‑ 1t is for the order and decree dated 18‑4‑1992, passed ,by respondent. No.2 may kindly be kindly declared illegal and without lawful authority. It is, further prayed that the suit of the petitioner be transferred to. any other Court for' the just decision in accordance with the provisions of law. Any other order deemed fit and proper in view of the above mentioned submissions may also be passed." Facts giving rise to instant proceedings are that petitioner sought dissolution of marriage by instituting suit in the Court of Civil judge/Family Judge; on the ground of non payment of dower and maintenance as well as for maltreatment. Respondent contested the suit, repudiating' the stated allegations against him. On 17th March 1992, pre‑trial proceedings were conducted by the Family Judge and attempt was made to effect a compromise. It appears that efforts succeeded to some extent thus following order was passed on the same day.‑‑ On the adjourned date i.e. 16th April 1992, respondent did furnish proof of having obtained a separate house for providing independent accommodation to petitioner, as such directions were made to her for appearing in person on 18th April 1991, alongwith her children so that in presence of parties order regarding maturity of reconciliation be formally announced. As such on the date fixed, both the parties appeared in Court and with their consent order was announced in the following terms:‑‑ From perusal of afore‑quoted order it emerges that parties had also put their signatures as a token of acceptance thereof. So much so with the consent of parties matter was put off for‑ 20th April 1992, so petitioner alongwith her children may go with respondent. In pursuance of the above terms of the compromise a decree sheet was also drawn incorporating there in the conditions and the. terms. settled between the parties by the Court during reconciliation.

3. It is alleged by petitioner that she had not, accepted the terms of the order mentioned above because allegedly she moved an application before the Court on the same very day which, was not entertained. However, copy whereof has, been placed on record. Probably due to non entertainment of her application she felt dissatisfied from the order of the Court and had instituted instant proceedings.

4. Raja Rab Nawaz,' Advocate had appeared in support of the petition. According to him trial Court/Family Judge under the law had no jurisdiction to pass a decree for restitution of conjugal rights in favour of the respondent in a suit instituted by petitioner for the dissolution of marriage on various grounds. The terms and conditions mentioned in the impugned order Were not agreeable to petitioner, therefore, she had moved an application, but the Court refused to entertain the same. So much go allegations were imputed to the Presiding Officer by alleging that she forced the' petitioner to sign the order sheet. dated .18‑4‑1992, without, bringing on record her application and the behaviour of respondent No.2/Family Judge throughout the proceedings had remained biased, harsh and intolerable and she forced the petitioner to join the respondent No.1 at any rate.

5. On the other hand Syed Ayaz Zahoor, Advocate learned counsel appearing for respondent vehmently repudiated the assertions made by petitioner's ‑ counsel and he 'contended that the Family Judge strictly in accordance with provisions of section 10 of the Family Courts Act had effected reconciliation between the parties. The Family Judge had legal authority to .pass an order with the consent of parties after having settled the terms which were agreed by both‑of them, therefore'. the order dated 18‑4‑1992, being a consent order is not open to any exception. Thus discretionary jurisdiction under the Constitutional jurisdiction may not be exercised in favour of the petitioner. .

6. We have heard the counsel for the parties and with their assistance record of the case has also been perused. Moot question for consideration would be regarding the jurisdiction and powers of Family Judge at the stage when pre trial proceedings are conducted. Section 10 of the Family Courts Act 1964 (hereinafter referred to as Act) contemplates that the Court shall ascertain the points at issue between the parties at the pre‑trial stage and attempt will also be made to effect a compromise or re‑conciliation between the parties if this be possible. Connotation of re‑conciliation and compromise in its language reveals to adopt such measures which can be proved as a factor for the harmonious i A union between the spouses after redressal of grievances between them which had led to have re‑course to litigation. It is observed here that phenomena of pre‑trial and post trial proceedings as has been embodied in the act had been adopted from (Soorah‑Al‑Nisa) wherein it has been described as follows:‑ "AND IF YOU FEAR A BREACH (SHIQAK) BETWEEN THEM TWAIN (i.e. THE HUSBAND AND WIFE), APPOINT A ARBITER‑FROM HIS FOLK AND AN ARBITER FROM HER FOLK. IF THEY DESIRE AMENDMENT ALLAH WILL MAKE THEM OF ONE MIND. LO ALLAH IS EVER KNOWER AWARE." A perusal of above Holy Verse would indicate that to settle disputes between spouses attempt is to be made to effect a reconciliation before making final determination relating to the tie of marriage. It can be further understood from the above Verse that an Arbitration Council has to be constituted comprising of one member from the family of husband and one member from wife's family with authority to probe in real cause or causes * of the dispute between the parties and arbitrators would also make endeavours to find out a suitable solution' of the dispute. The theory introduced by Holy Ouran in this context also conceives another ideal principle i.e. that the members of the family should preferably be taken as arbitor such like elders, notables and Naik Murd because they would be resolving.. the dispute with great responsibility, keeping in view the honour and the grace of both the families as well as .spouses. After the inception of Holy Qur'an during the days of Hazrat Usman and Hazrat Ali (Allah be pleased with them) at two occasions the above injunctions practically were invoked and implemented as both of them used to. authorise conciliators with complete powers to effect reconciliation or separation as required by the circumstances. In this behalf two instances are very prominent which are being quoted here in below‑‑‑ "In the case of Aqil son of Abu Talib 'and his wife Fatima daughter of Utba Bin Rabia dispute between the spouses was brought in the Court of Hazrat Usman (Allah be pleased with him) he appointed as arbitrator to Abn‑a‑Abbas (Allah be pleased with him) from the family of the husband and Muawiya (Allah be pleased with him) from the family of the wife and told them that they were authorised to cause separation between them, if required by circumstances. Similarly Hazrat Ali (Allah be pleased with him) appointed arbitrators in such like cases and conferred authority upon. them for effecting re conciliation between the spouses or separate them."

8. It may be noticed that there had been a difference of opinion regarding the powers of the arbitrators because according to the "Hanfi" and "Shafi" School of thought arbitrators are not authorised to pass any final decree but they should take measures for re‑conciliation which may be accepted or rejected by the spouses, whereas according to the "Hassan Basri" and some other Jurists the arbitors are authorised to enforce re‑conciliation but not separation, whereas Abn‑a‑Abbas, Saeed Bin Jubair, Ibrahim Naqhi, Shaabi, Muhammad Bin Siran etc., were of the opinion that conciliators should have full authority to enforce their decision about re‑conciliation, or separation which‑ever they considered to be proper. ' 1

9. In the religion of Islam separation of spouses has been considered necessary only when marital relations have deteriorated between spouses to a decree to which a happy life had become impossible. At the same time no remedy is available for, divorce on petty grounds because if the tendency of spearation by divorce is encouraged it would have, direct reflection on the stability of the family life as well as on the Muslim society, as such in the Holy Book at various places different, checks have been provided to limit the exercise of the right of divorce. 'In this behalf it may be mentioned that Holy Prophet Muhammad (peace be upon him) has made it clear that Islam does not regard the act of separation between spouses as desirable. In this behalf Ibne Umar (Allah be pleased with him), reported that the messenger of Allah (peace be upon him) once stated "Of all the lawful things, divorce is the most detestable thing in the sight of Allah." On another occasion Holy Prophet (peace be upon him) as has been reported by Abu Dawood had stated "Contract marriage and do not give divorce for Allah Does not approve of pleasure seeking males and females". So much so Holy Qur'an provides that if you dislike a woman you should do your utmost to keep your marriage intact with her.

10. Now if the provisions of re‑trial and post‑trial under the Act am examined keeping in view the above discussion, conclusion can be drawn that the Family Judge in fact acts as arbitrator and *in exercising judicial powers to organize a compromise with a view to save matrimonial life from further deterioration and in the suit of dissolution of marriage a decree for restitution of conjugal right has been awarded in the largest interest of spouses keeping in mind that act of the divorce has not been considered desirable by the religion, and it. would not amount of having exercised authority without jurisdiction because such powers of reconciliation or compromise have been conferred on a Family Judge keeping in view the Islamic history which has been reproduced hereinabove.

11. In the instant case the order ‑ impugned herein cannot be declared having been passed without lawful authority and jurisdiction merely for the reason that petitioner has been directed to join the respondent. It is noticed E with great concern that petitioner with her own accord agreed for conciliation and she put her signature on order sheet as a token of acceptance the same. So much so this fact can be manifested from the proceeding conducted‑ during, trial which has been re‑produced hereinabove. Mr. Raja Rab Nawaz Advocate for the petitioner pointed out that the Family Judge after passing order on 17th March 1992, failed to obtain surety from respondent, so much so conditions of settlement incorporated in the order dated 18‑4‑1992, haven been passed without lawful authority. We have gone through the order referred to above which reveals that surety was to be furnished regarding providing an independent house to petitioner by the respondent. And on the next hearing respondent had produced receipt of rent of the house which has been taken by them on rent, for providing accommodation to her. Similarly the conditions of settlement during conciliation proceedings which find mention, in order dated 18‑4‑1992, are also not unfavourable for her, because she had agreed for amicable settlement and to express her willingness, had also signed the order sheet. Mr. Raja Rab Nawaz levelled serious allegation in this behalf against the Presiding Officer but he could not substantiate the same. We were minded to initiate proper action against petitioner but decided to exercise restraint because if any action is initiated against her she would land yet into another difficulty, however, we are constrained to make observations that while giving instructions to the Advocates litigants should be very careful before casting any type of aspersion on the authority of Presiding Officer of the Court and should refrain from imputing base less and ill‑founded allegation because if a serious view is taken by the Courts it may entail severe consequences. It is also important to mention here that worthy Advocates who being the officers of the Court are also equally responsible to ensure that Presiding Officers are not maligned and involved unnecessarily. 12. . It was lastly contended by Raja Rab Nawaz, Advocate, that an application dated 18th April 1992, was also filed by the counsel of the petitioner wherein she expressed her grievance regarding the settlement of the term's of compromise incorporated is the impugned order. Although copy of such 'application is available on record but it appears that the same was not filed before the Court and subsequently with a view to have a ground for challenging the order this plea has been concocted, thus at this stage the application cannot be considered.

13. The counsel for the petitioner had also shown his grievance ‑about the issuance of her warrants of arrest by the Family Judge through concerned SHO Police for implementing the order dated 1.8‑4‑1992. The learned counsel expressed that due to such unwarranted act on the part of the respondent she has developed hatred, therefore, is not willing to join him, he as such prayed for declaring this action of Family Court to be without lawful jurisdiction. Because the order of the Family Judge regarding the issuance of the warrant of arrest has not been called in question in instant proceedings, therefore, this Court is not empowered in Suo Motu jurisdiction to strike down an order which has not been challenged, but observation can be made that Family Judge had no lawful authority to issue the warrants of the arrest at the instance of respondent and if such action has been initiated that should be dropped immediately and if petitioner does not join the respondent she would be deprived of the maintenance allowance etc., and if at all coercive measures for implementing the order dated 18‑4‑1992, have to be adopted then in that case the movable or immovable property belonging to her can be ordered to be attached.

14. Keeping in view the above facts and circumstances, irresistible conclusion is drawn that impugned order has been passed with lawful authority and jurisdiction by the Family Judge.

15. Accordingly it is held that petition has no merits which is hereby dismissed, leaving the parties to bear their own costs. AA./425/Q PETITION DISMISSED