2001 PLP 557 (CLC)

Muhammad Amin Khattak for Petitioner. MRS. KHALIDA RACHID, J.‑‑‑ Invoking the Constitutional jurisdiction of this Court, petitioner, Hamesh Gul sought the indulgence of this Court for declaring the order, dated 3‑10‑2000, passed by Judge, Family Court, Daggar, District Buner, as illegal, invalid and arbitrary.

2. The brief background of the case is that Mst. Bakht Mana, respondent herein, filed a suit in the Court of Aala Illaqa Qazi, Buner, empowered as Judge, Family Court, seeking dissolution of her marriage with Hamesh Gul, petitioner, on the ground that she was given in Nikah to Hamesh Gul, petitioner, during her infancy some 25 years ago, as "Swara" i.e. in lieu of settlement of a dispute of murder allegedly committed by her aunt Mst. Khaista Jan and uncle Ziarat Gul. After reaching the age of majority, the petitioner did not wish to make arrangement for her Rukhsati but preferred her to remain at her parents' house without being given any consideration or financial assistance by her husband. Instead he contracted a second marriage some four or five years prior to the institution of her suit, from whom he also has children. The respondent/wife also prayed for the payment of maintenance allowance at the rate of Rs.500 per month for the last 25 years.

3. Praying for the release from the tie of Nikah, the respondent/wife submitted that it was not possible for her to reside and develop conjugal relations with him at all, within the limits prescribed by Almighty Allah. Her suit was resisted by petitioner/husband by submitting written statement. The parties were allowed to lead their respective evidence. .The learned trial Court after evaluating the same directed the dissolution of marriage between the spouses, while her prayer for maintenance was dismissed.

4. Mr. Muhammad Amin Khattak, learned counsel for the petitioner/husband submitted that though the petitioner has taken a second wife, but he is still willing to maintain the respondent as his wife. He contended that she being a legally‑wedded wife, his vested right acquired through "Swara", custom of the area, has been violated through the impugned order, therefore, same may be declared illegal, void and without lawful authority.

5. Before we proceed to record our observations on the merits of the case,. we may wish to explain, as to what is meant by "Swara". This is a Pushto word that means "to ride". This tradition evolved in olden days, when the conqueror clan with the booty, also used to capture the women of the conquerred clan. Women were taken to the conqueror camp riding a camel or horse. Following the same tradition, in some class of our society, disputes are settled in the same manner. The defeating party receives the same treatment when a settlement is made between two conflicting parties, especially in murder cases. A woman is scarified as the reward to settle a dispute and a rode to the house of the claimant of the dispute. This is rather a sign more of winning and humiliating the other party than honorary solution of a dispute or controversy.

7. Elegance of ingenuineness in tyranny is further compounded when beneficiary of such oppressor sometime refuses to marry the victim of such tyrant act. The Legislature, realising this violent innovation, had made a provision in the Pakistan Penal Code, 1860. Section 310, P.P.C. clearly forbids such an act.

8. For the sake of convenience, section 310 of P.P.C. is reproduced as under:‑‑ Compounding of Oisas (Sulh) in Qatl‑e‑Amad.‑‑‑ (1) In case of Qatl‑e‑Amd, and adult sane Wali may, at any time on accepting Badal‑e‑Sulh, compound his right of Qisas; provided that a female in marriage shall not be a valid Badal‑e‑Sulh." In the presence of above law, the practice of such a tradition is nothing but is the degradation, humiliation and abasement of the importance and value of human being given by the Allah Almighty to "Ashraf‑ul -Mukhluqat" (the most eminent of created things; mankind).

9. To eradicate this menace from the society once for all, there should be a severe penalty for such an oppressed act. The Courts shall not accept such a condition for settlement of blood‑feud.

10. Coming back to the case in hand it is an extreme form of this "Bid'at" flourishing in our society. The respondent woman has been subdued and rewarded as valid "Badal‑i‑Sulh", against the law and for twenty‑five years she was left in the house of parents like an "Uzv‑e‑Mu'attal", a useless limb of the society. She has been condemned as a "good‑for‑nothing" member of the society. This, is a barbaric act and not compatible with the law of Shariat, as often claimed.

11. In view of the above discussion, we see no force in this petition which is hereby dismissed in limine. H.B.T./205/P Petition dismissed.