2010 PLP 942 (CLC)

MUHAMMAD TASNIM, J.

Through this constitution petition the petitioner has challenged the order of respondent No.2 i.e. XVI-Civil & Family Judge, Karachi-South, dated 1-2-2010 whereby after filing of written statement matter was posted to 13-2-2010 for pre-trial of the parties. The facts leading to this petition are in short stated as under:-- That the petitioner was married with respondent No. 1 on 17-12-1997 according to Muslim Family Law. It is the case of respondent No.1 before the Family Judge that the dowry amount of Rs.1,00,000 was fixed. After marriage Rukhsati took place but parties could not live together happily which forced the respondent No.1 to file a suit for dissolution of marriage by, way of Khula and maintenance for self and two minors. Such suit is being contested by the present petitioner by filing his written-statement. From the record it appears that defendants/petitioner filed written-statement on 20-1-2010 copy whereof was supplied to plaintiff/respondent No.1 and thereafter the matter was taken-up in Court on 1-2-2010 fixing the pre-trial of the parties on 13-2-2010. This order has been questioned through this petition. When learned counsel was asked at the very outset that how this petition is maintainable as petitioner appears to be not an aggrieved party as required under Article 199 of the Constitution of Pakistan, 1973, learned counsel submitted that since pre-trial is being held by the learned Family Court there is likelihood that if pre-trial fails the marriage between the petitioner and respondent No.1 shall be dissolved by the learned Family Court. The attention of learned counsel for the petitioner was invited to the provisions of section 10 of the West Pakistan Family Courts, Act, 1964, (hereinafter called Act), which are quoted hereunder:- "

10. Pre-trial proceedings. (1) When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case. (2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precis of evidence and documents filed by the parties and shall also, if it so deems fit hear the parties, and their counsel. (3) At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible. (4) If no compromise or reconciliation is possible the Courts shall frame the issues in the case and fix date for the recording of the evidence: Provided that notwithstanding any decision or judgment of any Court or Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage." From the reading of above quoted section it appears that subsection (3) of section 10 of the Act provides that at the trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible. Subsection (4) of section 10 of the Act further provides that if no compromise or reconciliation is possible the Court shall frame the issues in the case and fix date for the recording of the evidence. A bare reading of the above provision further shows that it is the statutory duty of learned Family Judge that after filing of written-statement try to settle the dispute between the parties at the pre-trial stage in a suit for dissolution. It has been further stated in the aforesaid provisions that in case of failure of pre-trial decree for dissolution of marriage shall be passed forthwith. Faced with the above provision learned counsel was not able to satisfy the Court as no order whatsoever in consequence to pre-trial has been passed till date but learned counsel wants this Court to stop the learned Family Court-Respondent No.2 from discharging its legal duty under the law which cannot be done in constitutional jurisdiction. Even otherwise, no jurisdictional defect or conduct of the Presiding Officer in the proceedings has been challenged by the petitioner. Apart from the above no other point was raised by the learned counsel for the petitioner in support of present petition. In response to the query of the Court that how this petition is maintainable, learned counsel submitted that it is the inherent power of the Court to stay the judicial proceedings. The submission of learned counsel is wholly misplaced. It is stated under Article 199 of the Constitution of Pakistan, 1973, only on aggrieved party can maintain a petition not being the case of quo warranto and habeas corpus. For the aforesaid reasons this petition fails and was dismissed in limine with no order as to costs on 12-3-2010 by a short order and above are the reasons of the same. M.U.Y./A-19/K Petition dismissed.