1991 PLP 1250 (MLD)

S. 7

West Pakistan Family Courts Act (XXXV of 1964), S.21(2)

Decree for dissolution of marriage

Family Court was under obligation to send by registered post within seven days of passing such decree, a certified copy of the same to appropriate Chairman whereupon Chairman would proceed as if he had received intimation of Talaq required to be given under Ordinance VIII of 1961

Period of ninety days after which decree would be effective would start from the date the certified copy was sent to the Chairman by Court

In case of dissolution of a marriage through Family Court such decree was a substitute for pronouncement of divorce. Islam Ali Qureshi for Petitioner. Haji Muhammad Iqbal Malik for Respondent No.

2. Date of hearing: 27th February, 1991. This petition under Article 199 of the Constitution of Islamic Republic of r Pakistan calls in question the judgment and decree dated 2-6-1990, passed by the learned Judge, Family Court, Samundri, District Faisalabad, whereby the marriage between the petitioner and respondent No.2 was dissolved by way of Khula on payment of Rs.5,000.

2. Learned counsel for the petitioner has assailed the validity of the impugned judgment and decree on the ground that the trial Court, had recorded the statements of the witnesses on solemn affirmation instead of oath which was violative of sections 6 and 7 of the Oaths Act, 1973, the High Court Rules and Orders and the decision given in case of Abdur Rehman v. The State 1988 P Cr. L J 2347.

3. The case of Abdur Rehman (supra) is distinguishable. It was held therein that the charge under section 193, P.P.C. could not be established against the petitioner therein. It was held that it was not possible to say with certainty whether the affidavit of the applicant therein or that of the other party was correct and, therefore, the proceedings before the Court were quashed and the petitioner therein was acquitted of the charge. Here no prejudice has been caused to the petitioner for strict non-compliance of sections 6 and 7 of the Oaths Act which provides that when the witness or interpreter is Muslim, he is required to take oath. Thus visualized, a mere irregularity in not following the procedure prescribed in the aforesaid provisions of law would not ipso facto render the impugned order void in the absence of any prejudice to either of the parties which has not even been alleged therein. Reference may also be made to Zeb-ul-Haram v. The State P L D 1991 FSC 1, wherein it was held that `in determining whether any error, omission or irregularity in any proceedings under Criminal Procedure Code, 18:8 has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. No objection to the non-giving of oath to the interpreter was taken at the trial stage. Failure of giving oath to interpreter, even otherwise, could not be said to have occasioned a failure of justice so as to make out a case for remand by the Federal Shariat Court to the trial Court'.

4. Learned counsel for the petitioner next placed reliance on Mst. Manzoor v. Allah Wasaya etc. P L D 1973 BJ 36 to contend that notwithstanding the passing of the decree by the Judge, Family Court, the Talaq would become effective only after notice of Talaq has been given by the petitioner to the Chairman, and period of three months provided for bringing out the conciliation between the parties has expired. It is submitted that no notice has been given till now, therefore, the Talaq has not become effective, under section 7 of the Muslim Family Laws Ordinance, 1961. The contention has no force. Section 21(2) of the West Pakistan Family Courts Act, 1964 (XXXV of 1964) provides that `where a Family Court passes decree for the dissolution of a marriage solemnized under the Muslim Law, the Court shall send by registered post within seven days of passing such decree a certified copy of the same to the appropriate Chairman referred to in section 7 of the Muslim Family Laws Ordinance, 1961 and upon receipt of such copy, the Chairman shall proceed as if he had received an intimation of Talaq required to be (given) under the said Ordinance'.

5. It would, therefore, be seen that the aforesaid provisions of Act obligates the Family Court to send a certified copy of its decree for dissolution of marriage to the Chairman, who shall act upon it as if it is an intimation given under section 7 of the Ordinance. Clearly a period of 90 days after which the decree will be effective, starts from the date the certified copy is sent to the Chairman by the Court. In case of dissolution of marriage through the Family Court the decree of the Family Court is a substitute for pronouncement of divorce. To the same effect is the judgment of Mst. Manzoor (supra). The portion relied upon by the learned counsel for the petitioner in the precedent case is to be read in context of the whole judgment and not in isolation as has been attempted by the learned counsel for the petitioner which could have been avoided.

6. In view of the above, I find no force in the writ petition which is hereby dismissed with costs. AA./K-310/L?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.