1998 PLP 1276 (MLD)

NASIR-UL-MULK, J.

The marriage between Fazal Muhammad and Mst. Maya, residents of Tehsil Barikot, District Swat was ordered to be dissolved on 14-7-1997 on the basis of 'Khula' by the Senior Civil Judge, Swat, exercising powers of Family Court in suit for dissolution of marriage, recovery of dower and maintenance, filed by Mst. Maya on 23-7-1995. The latter two reliefs were not granted. The trial Judge made his decision on the report of a mediater, appointed with the consent of the parties, in accordance with section 7 of the PATA (Nifaz-e-Sheria) Regulation, 1994, called the 'Regulation. The order of dissolution of marriage has been questioned by Fazal Muhammad in this Constitutional petition.

2. The learned counsel appearing for the petitioner assailed the impugned order on two legal planes. His first contention was that since the Family Court Act, 1964 prescribed its own procedure for determining suits, the Senior Civil Judge, acting as Judge Family Court, has erred in law by adopting the procedure provided in the Regulation. This contention has no merits. The Regulation was made under clause (4) of Article 247 of the Constitution by the Governor of N. W. F. P. with the approval of President of Pakistan for application in the Provincially Administered Tribal Area of Malakand Division. By the same Regulation the Governor exercising his power under clause (3) of Article 247 applied to the said area certain existing enactments, including the West Pakistan Family Court Act, 1964. The Governor is also empowered to make the laws so applied subject to specified exceptions and modifications. It is in the exercise of this power that subsection (2) of section (3) was incorporated in the Regulation. It reads:-- "All the laws applicable to the said area, including the law mentioned in subsection (1), shall so apply subject to such exceptions and modifications as specified in the Regulation." Subsection (1) of section (3) of the Regulation refers to schedule 1 wherein the laws applied by the Regulation to the area have been enumerated, which includes the West Pakistan Family Court Act, 1964.

3. In addition to, or in place of the procedure laid down under the ordinary law the Regulation has by section 7, made provision for a dispute to be referred to mediators, to be appointed by mutual consent of the parties, for its resolution- In view of subsection (2) of section 3 of the Regulation the Family Court Act was applied to the area subject to the modifications as provided under the Regulation, one of which was resolution of dispute by mediator. The, procedure prescribed under the Regulation, therefore, overrides that laid down in the Family Court Act. By referring the dispute to the mediator, the Senior Civil Judge had thus acted in accordance with law. It is not disputed that the petitioner had consented to the appointment of the mediator.

4. The second contention of the learned counsel is that dissolution of marriage cannot be decreed on the wives aversion to the husband without the consent of the husband. This contention is based on a commentary, written by Maulana Taqi Usmani, a former Judge of the Shariat Appellate Bench of the Supreme Court of Pakistan, on the case of Khurshid Bibi v. Muhammad Amin (PLD 1967 SC 97), in which, by quoting extensibly from the text drew different conclusions than the principle laid down by the Supreme Court in Khurshid Bibi's case that wife is entitled to dissolution of marriage by 'Khula' if the spouses cannot live within the limits prescribed by God. With all respect to the learned author of the article we cannot but follow the judgment of the Supreme Court in view of Article 189 of the Constitution. There is, therefore, no need to go into the merits of the contents of the Article. This contention also is devoid of any force.

5. As regards the conclusions drawn on facts by the trial Court neither they were seriously contested nor can we in Constitutional jurisdiction interfere with inference drawn from the evidence, particularly when neither misreading nor non-reading of evidence has been pointed out.

6. It, thus, follows that the writ petition is without merits and is dismissed in limine. H.B.T./57/P Petition dismissed.