2004 PLP 1666 (YLR)

Msood A. Noorani, Additional A.-G. and Jhamat Jethanand as (Amicus curiae) for Respondents. Date of hearing: 8th September, 2003. Through this petition, the petitioner has impugned the judgment and decree passed by the Civil and Family Judge, Badin in Family Suit No.58 of 2001, whereby the marriage of the petitioner has been separated.

2. The petitioner as pleaded that he is the husband of respondent No.1. The parties belong to Hindu religion and by caste are Kolhis and were married under the customary law of the community tradition on 3‑2‑2001. According to him, the marriage was for consideration and Rs.30,000 was paid by the petitioner to the parents of the respondent No.1. After lapse of time of few months the respondent No.1 filed Suit No.58 of 2001, inter alia, on the ground of impotency, imbalance of mind, cruelty, harshness and danger to her life. The petitioner filed his written statement and issues were framed.

3. The respondent No.1 examined herself and disputed that she had received any consideration of Rs.30,

000. The petitioner also examined himself, where after the trial Court heard the parties and passed this judgment, which is impugned in these proceedings.

4. Since the point raised in these proceedings related to Hindu religion and was point of first impression, this Court has requested Mr. Jhamat Jethanand, Senior Advocate .of this Court, to assist this Court as 'amicus curiae' alongwith Mr. Masood A. Noorani, learned Additional A.‑G. The learned Additional A.‑G. also extended all possible help to know the whereabouts of the respondent No.1 but to no avail, as according to the reports the respondent No.1 has shifted from her original place of abode. According to the police, these persons are nomad and keep on shifting to various places. Even otherwise, now‑a‑days on account of heavy rainfall in the area the entire town of Badin is disturbed and the respondent No.1 happens to be the‑resident of that area, therefore, it appears to be difficult even for the police to trace her.

5. It has been contended by the learned counsel for the petitioner that in Hindu law the dissolution of marriage of schedule castes is permissible and according to him, which is only subject to the customary law. He submitted that the Family Court cannot, in law, grant dissolution. He further submitted that the dissolution is only permissible through custom of the parties and, that too, in a marriage which is without consideration. According to the learned counsel for the petitioner, in the present case, the marriage was not consummated and the ground on which the decree of dissolution has been granted was foreign to customary law of Hindus. He has relied upon the case reported in 1991 SCMR

681. It has been further contended by the learned counsel for the petitioner that in Hindu Law only judicial separation is permissible and the provisions of Hindu Widows Marriage Act of 1856 and Hindu Married Women Right to Separate Residence and Maintenance Act, 1946 would apply and the trial Court has overlooked these provisions of the two statutes while passing the impugned judgment.

6. As against this, Mr. Jhamat Jethanand has argued that the judgments in these proceedings are covered by the provisions of Family Court Ordinance and the provisions of Hindu Widows Marriage Act, 1856 and Hindu Married Women Right to Separate Residence and Maintenance of 1946 would not come in the way of the Court while deciding matrimonial disputes of the nature. According to the learned counsel, the family disputes are covered by the schedule of Family Courts Act, 1964 and under section 5 read with Schedule itself. He submitted that the customs of Hindu Law will riot debar the jurisdiction of the Family Courts as provided under section 5 read with Schedule of the Family Courts Act, 1964. He submitted that in the present proceedings the marriage has not been dissolved but in fact judicial separation has been granted by the Court and the Court was competent to pass such an order under, the provisions of section 5 of the Family Courts Act.

7. Mr. Masood A. Noorani, learned Additional A.‑G. while supporting the arguments of Mr. Jhamat Jethanand, Advocate, has submitted that since the respondent is not traceable, any judgment on the back of the respondent No.1 may come in her way as it is not known as to whether the respondent has remarried or not and even otherwise, nobody knows the whereabouts of the respondent and since the issue raised is that of matrimonial nature, any order in her absence may prejudice her rights and might lead to adverse consequences. I have also noticed the judgments in the cases viz., (1) AIR 1952 Born. 486, (2) AIR 1985 Del. 14, (3) AIR 1941 Bom. 298, (4) AIR 1958 A.J. 611, (5) AIR 1968 SC 142 which the learned counsel has cited. The main argument, which appears to have been advanced by tire learned counsel for the petitioner was that the judgment is without reasons and there was no sufficient material placed before the trial Court to grant judicial separation of the nature. The grounds as pleaded in the plaint were of impotency, unsound mind ness, cruelty and danger to the life. I had offered the learned counsel for the petitioner to procure the attendance of the petitioner, so that he could be referred for medical examination in terms of Order XXXII, rule 7, C.P.C. The petitioner's counsel did not accept this option and avoided the presence of the petitioner. It appears that the counsel was himself not sure as to whether the petitioner, who has approached this Court in exercise of Constitutional jurisdiction, was of sound mind or not. Even the question of impotency on which no issue has been framed by the trial Court, was of material concern. It is next to impossible to accept the proposition that in Pakistan the Family Courts should be abolished and authority be given to the Panchaiyat of the Hindu Community to decide the matrimonial disputes. I, at least, cannot share such concern inasmuch as a party can easily approach a Court of law than to persuade a Panchaiyat for decision. Even otherwise, the Family Courts Act, 1964 fully takes note of all the customs practised in any religion, which include Hindu Religion. The point raised before this Court was never raised before the trial Court either in the written statement or in the arguments. The learned counsel for the petitioner, however, has conceded to the extent that the Family Court has the power to adjudicate upon judicial separation. He, however; submits that the Family Court has overlooked the customs of the parties and, therefore, the decree was not maintainable. I cannot go into the deeper appreciation of the evidence and even if the impugned judgment is unreasoned, still it has done substantial justice by reaching appropriate findings. I have examined the impugned judgment of the Civil Judge. It is correct that it is not a reasoned and/or a detailed judgment but when the allegation of danger to life and/or ground of impotency and/or of unsound mind has been raised by the respondent No.1 then the petitioner should have volunteered for examination as provided under the C.P.C. Neither of the parties has discharged the onus to this effect apparently because no issues were framed. To my understanding substantial justice has been done to the respondent No.

1. I, therefore, dismiss this writ petition for the aforesaid reasons. The judgments cited by the parties would have hardly impact on the issues involved in this petition and, therefore, I feel that those judgments are distinguishable on facts. H.B.T./R‑10/K Petition dismissed.