P L D 1975 Lahore 1118 (PLP)

(3) Notwithstanding anything to the contrary contained in any other law, a decree for dissolution of a marriage solemnized under the Muslim Law shall‑

(a) not be effective until the expiration of ninety days from the day on which a copy thereof has been sent under subsection (2) to the Chairman ; and (b) be of no effect if within the period specified in clause (a) a reconciliation has been effected between the parties in accor dance with the provisions of the Muslim Family Laws Ordi nance, 1961." Amended; "

21. Nothing in this Act shall be deemed to affect any of the provisions of Muslim Family Laws Ordinance, 1961, or the rules made thereunder."

6. Mr. Rafiq Ahmad Khan Bangash learned counsel for the petitioner (in W. P. No. 170/74) contended : that‑it is incumbent upon a wife to proceed under section 8 read with section 7 of the Muslim Family Laws Ordinance before filing a suit for dissolution of marriage in other words, according to him, it is essential pre‑requisite for filing a suit for dissolution of marriage to send a notice to the Chairman so that conciliation should take place before the Court takes cognizance of the matter ; that Article 35 of the Constitution enjoins upon the State to protect the marriage and the family, therefore, effort should be made to interpret the law so as to protect and keep intact all marriages ; that under the Islamic Law and procedure, the hakams should conciliate between the estranged spouses so as to repair broken marriages ; that the Muslim Family Laws Ordinance, 1961, read with the Basic Democra cies Order, 1959, has introduced hakams in 'the system of marriages in Pakistan, in that the members of the Arbitration Council constituted under ,section 7 of the Ordinance, who should be normally members of tire families of the parties, would have an opportunity to settle the matter out of Court before the parties resort to litigation, that if the above suggested course is not adopted, it would be futile to resort to proceedings before Arbitration Council after decision by a Family Court‑in other words, it would not be possible to re‑units spouses after they had, as the learned counsel put it, `a bitter fight' in the form of litigation and particularly after the Family Court has had opportunity of making two efforts at reconciliation, ‑‑one before the trial and the other, after the conclusion of the evidence (sections 10 and 12 of the West Pakistan Family Courts Act); that on practical side, going before an Arbitration Council prior to the institution of a suit would not involve lengthy proceedings‑the representatives of the parties on the Arbitration Council, who would be knowing the parties would be able to conciliate between them without going into the details of the merits of the case on facts and law ; that deletion of those provisions of section 21 of the Family Courts Act, which provided for resort to the Arbitration Council after the decision by the Family Court, by the Legislature shows that it intended to follow the dictum in the case of Mst. Mumtaz Mai thus, the said dictum has been given legislative recognition ;that section 8 of the Ordinance postulates two situations ( = one, talaq by a woman who has right of tafweez and, the other, when the wife sues for dissolution of marriage on other grounds including that of khula') in which reference under section 7 would be neces sary before taking recourse, for remedy, before a Court of law therefore, section 21 has according to the learned counsel been amended. In this behalf, he also pointed out that subsection (1) of section 21, as it stood earlier, only has been retained in order to highlight the fact that thereafter the procedures qua sending of the decree by the Court to the Union Council specified in the remaining repealed part of section 21 were no more necessary because recourse to section 7 was to be taken prior to the institution of the suit in recognition of the correctness of the law laid down in the cast of Mst: Mumtaz Mar' : that unless recourse under section 7 of the Ordinance before the institu tion of the suit for dissolution of marriage is held to be essential, the provisions contained therein relating to punishment for non‑compliance therewith would act as discrimination in some cases of dissolution of marriage as, by adopting the other course namely, of the Court making reference after passing the decree, the party concerned would not be liable to any punishment if it decides not to send notice to the Chairman ; the ex pression that mutatis mutandis, as used in section 8 of the Ordinance, would have to be read according to the interpretation placed thereon in the case reported as Khushi Ram Raghunath Sahai v. Commissioner of income‑tax (.A I R 1953 Pb.300), when asked to elaborate, learned counsel stated that subsections (2) (3), (5) and (6) of section 7 would, under' the guiding mandate of mutads mutandis used in section 8, have to be deleted and for the 'purpose of the latter provision, only subsections (1) and (4) would have to be retained and interjected therein, of course, with minor changes.

7. Ch. Aziz Ahmad Bajwa, learned counsel for the petitioners/appel lants (in W. P: No. 1655/72) R. S. A. 274/73, and W. P. No.. 1254/73, adopted a middle course. According to him, the cases falling under section 8 of the Ordinance can be split into two categories. One, where the wife has absolute authority and power to dissolve the marriage without intervention of Court the examples he gave were of tafweez and Khyar‑ul‑baloogh (about the latter be however took a flexible position). In these cases resort under section 7/8 of the Ordinance would be essential before taking any proceedings in any Court of law while in other cases, where the wife has no such authority and her only chance to get the marriage dissolved is through a decree of the Court, a notice would have to be sent to the Chairman/Arbitration Council under section 7 by the Court or the wife herself after she is able to obtain a decree. He also simplified his argument by stating that whatever the form of dissolution of marriage, if a party has no desire to go to Court at all, then section 7/8 of the Ordinance would come into play. If, however resort to the Court is ultimately to ‑be had, then the recourse to section 7/8 of the Ordinance would have to be had after a decision by the Court. He also argued that unless a decree of the Court is' passed, there would be no question of effectiveness of a dissolution in cases not covered by talaq and tafweez and that being so, a recourse to section 7 prior to the approach to a Court of law would be redundant.

8. Mr. C. M. Latif Rawn, learned counsel for the respondent (in W. P. No. 170/74) took the position that the `pronouncement' of talaq referred to in section 7 of the Ordinance or the pronouncement of talaq through tafweez by a woman, if and when is compared with dissolution "of marriage in any other manner through Court, the decree passed as a result of proceedings therein would have to be treated as `pronouncement."' It is this pronouncement which would fit in the requirements of subsection (1) of section 7 of the Ordi nance, therefore, resort to that provision can take place after the decision by the Court and not before it. He also argued that even if the wife goes to an Arbitration Council in the cases covered by the second part of section 8 of the Ordinance, there would be nothing which would become effective as at that 'time, the dissolution would not have been ordered by the Court.

9. Mr. Khaleeq Ahmad Ansari, learned counsel for the respondents (in W. P. No. 1655/72 and R. S. A. No. 274/73) contended that recourse to section 7 of the Ordinance before the filing of the suit for dissolution of marriage was not necessary. He supported his contention by pointing out drat by the same amendment (Punjab Act XXIV of 1971) which drastically changed section 21 of the Act, sub‑clause (ii) of clause (c) of subsection (1) of section 21 and subsection (3) of section 8 together the explanation at the end of that section were deleted by the Legislature so as to show its intention that it was not necessary to have recourse to the Arbitration Council before taking resort to a Court of law. He also argued that sections 10 and 12 of the Act provided for the same proceedings (efforts at reconciliation) which it is the duty of the Arbitration Council to perform during the period of ninety days after the notice relating to pronouncement of talaq. It would, therefore, be redundant for a wife to resort to a notice under section 7 of the Ordinance before filing a suit for dissolution of marriage before a Family Court.

10. Mr. Mohammad Hussain Choudhary, learned counsel for the petitioners (in W. P. Nos. 1528/71 and 2347/73) also took the position that a divorce/dissolution granted by a Family Court would be without jurisdiction if before filing the suit the plaintiff does not have recourse to the provisions contained in section 7 of the Ordinance. He mainly relied on the reasoning in the case of Mst. Mumtaz Mai. According to him, most of the provisions of section 7 would not come into play in cases coming under section 8 of the Ordinance. At the same time, he agreed that a major part of section 21 (unamended) of the Act was in reality redundant in view of the provisions contained in section 8 read with section 7 of the Ordinance ; but he stressed upon combined reading of sections 7 end 8 of the Ordinance to contend that the law contained therein can be enforced only if recourse thereto is visualised as prior to the institution of the suit before a Court of law. The learned counsel, probably, had throughout in his mind the cases of tafweez and Khyar‑ul‑baloogh and not the general type of cases falling udder other herds of dissolution of marriage. He also stressed the pint that section 5 of the Act keeps intact and inviolate the provisions contained in the Ordinance, therefore, notwithstanding any provision made in the Act itself, the recourse to sections 7 and 8 of the Ordinance before having resort to a Court establish ed under the Act would be essential.

11. Mr. Ashiq Hussain Malik, learned counsel for the respondent (in W. P. No. 234/73) took an unusual position, namely, that the District Judge having decreed the suit (in that case) for dissolution of marriage in appeal, he did not sit as Family Court, therefore, according to him, neither sections 7 and 8 of the Ordinance nor section 21 of the Act had application. Kh. Saeedul Hassan, learned counsel for the respondent (W. P. No. 1528/71), while adopting the arguments of Mr. Ashiq Hussain Malik, further contended that in section 8, the expression so far as applicable is very impor tant and unless the provisions contained in section 7 are applicable to a case covered under section 8 of the Ordinance without any doubt, they would not be resorted to. According to him, if notice under section 7 of the Ordinance before filing a suit would have been necessary, then it would not be possible to reject an argument that another notice under the same provision would also be necessary after the decree for dissolution of marriage has been passed, This, he further argued, could not be the intention the Legislature. Thus, according to him, resort only once to section 7 of the Ordinance and that too after the pronouncement of decree by a Court of law, would be necessary:

12. Reference to Article 35 of the Constitution, which falls within the principles of policy, is not necessary in this case. The dissolution of marriage by means of talaq or on other grounds including that of khula' are matters of lawful exercise of certain powers. In this matter, the controversy is on the point as to whether information under section 7 of the Ordinance is to be given after the decree for dissolution by a Family Court or before the institu tion of the suit whatever the decision, the principle contained in Article 35 would remain satisfied. I also do not see any relevance of the argument that under the Islamic law and procedure, hakams should be introduced to con ciliate between the estranged spouses before the final breach takes place. If the members of the Arbitration Council are deemed to act as hakams then the argument, that reference under section 7 of the Ordinance is to be made after the decree for, dissolution of marriage, would in no case be the negation of the Islamic law and procedure because, before the decree would become effective by passage of ninety days, the so‑called hakams would have had an opportunity of making an effort at reconciliation. I, therefore do not agree with the general proposition that non‑acceptance of the argument qua notice under section 7, preceding the institution of the suit, would contravene any principle of Islamic law. Similarly, the argument that it would not be practicable to re‑unite the spouses after the decree and the so‑called bitter fight is untenable. Provisions have been made in the Family Courts Act for providing two stages to work as buffers‑one, the effort to be made by the Presiding Judge at pre‑trial and, the other, after the close of the evidence so as to bring about reconciliation between the parties. Thus, if there is any desire even if lurking for reconciliation, the same would be effectuated before the final decree is passed. The so‑called bitter fight would not be reached in any case at the pre‑trial reconciliation stage. Moreover, if the other argument is accepted, even after the trial the parties would have, at least, a last chance to go before another forum, namely, the Arbitration Council to seek reconciliation within ninety days cushion period of effectiveness of the dissolution through Court. The other argument in support of prior notice under section 7 of the Ordinance before the institution 'of the suit, namely, that the proceedings before the Arbitration Council would be confined only to ninety days and would not be lengthy and the representatives of the parties on the Arbitration Council being known to them, it would not be necessary for the Council to go into the details of facts and law; is also too general to be accepted. While making efforts at reconcilia tion it is true, the Council will not have to go into any intricate question of law or fact ; but on the other hand, if this effort is made after the decree for dissolution of marriage is passed, this would . not show that the Arbitration Council then would be without the benefits. It is not certain whether the amendment brought about in section 2 t of the Act was in anyway necessitated by the decision in her case of Mst. Mumtaz Mal and even if it were so the results produced in the amendment do not show that the dictum in the said ruling was intended to be followed by making the amendment. The deletion of the details of procedure to be followed by a Family Court, after a decree for dissolution of marriage is passed, for sending the decree to the Arbitration Council was not with a view to bring it in line with the decision in the case of Mst. Mumtaz Mai 3 rather, as would be presently shown, the details which were in the nature of procedure contained in section 21 were considered as redundant because of the application of section 8 read with section 7 of the Ordinance, by virtue of suction 5 of the Act. At the most, such like provisions, if necessary, could and should have been made in the rules. They, probably, were not considered to be necessary as part of the statute itself. It is true that if notice/ information relating to decree for dissolution of marriage is held to be necessary only after the decree is passed, then some difficulty would arise as to what would be the consequence of failure to send such notice or information qua punishment provided in section 7 of the Ordinance. But this difficulty is not insurmount able. It can be resolved either through the instrumentality of specific rules or through precedent law, because section 7 in such like cases would apply only in so far as applicable and that too, mutatis mutandis. The punishing provision in section 7, therefore, would have to be rendered consistent, though necessary amendments by methodology of mutatis mutandis, by the Courts concerned including the criminal Court before which such a matter would come up for trial. The decision from foreign jurisdiction in the case of Khushi Ram‑Raghunath Sahai on interpretation of the expression "mutatis mutandis" is not of much assistance. It will have to be interpreted in the light of various provisions contained in our own relevant laws‑the Ordinance and the Act.

13. Section 8 of the Ordinance is a parallel provision to section

7. The latter provides for the mechanism as to how the divorce (talaq) by "any man" who wishes to dissolve the marriage would become effective ; while the former provision is not confined to talaq by any man, Essentially it relates to other forms of dissolution of marriage including that through tafweez, Khayar‑ul‑baloogh and other grounds which can be urged before a Court even by a wife for obtaining a decree for dissolution of marriage. No difficulty would arise in cases dealt under first part of section 8, namely, where the right to divorce has been duly delegated to the wife and she wishes to exercise the same. In that case, it will be just a case of talaq. Instead of being pronounced by any man, it will be pronounced by the wife. There is no controversy in such like cases that if the matter is not to be taken to‑any Court then the provisions of section 7 when applied mutatis mutandis will have to be satisfied immediately on the pronouncement of talaq through tafweez and notice would have straightway to be sent in accordance with that provision. In other cases where the dissolution of marriage is dependent upon the Court passing a decree in favour of the wife, there is no complete act on her part so ‑ as to compel her to follow the provisions of section 7 before invoking the jurisdiction of the Court. Unless the chance that she has of getting the marriage dissolved through Court materialises into fact of her getting the decree, the break in the continuity of the marriage in not even visualised. Thus, the word "talaq" in section 7 would have to be equated with the decree which is yet to be granted by the Court. Similarly, in matters of talaq the pronouncement can be visualised on the part of any man and, in case of tajweez, the woman, in cases of dissolution of marriage through Court, the concept of 'pronouncement' cannot be visualised unless and until the decision by the Court for dissolution of marriage is "pronounced". On the same reasoning, the provision contained in subsection (3) read with subsection (5) of section 7 qua the "effectiveness" of the talaq after ninety days of the notice, unless revoked earlier, cannot be visualised in the case of dissolution through Court until and unless something is pronounced (in the form of decree of dissolution) which would become "effective" after ninety days. Obviously, even if proceedings under section 7 in such a case are held before the institution of the suit, there would be nothing which would become effective after ninety days of the notice. It would necessarily be an exercise in futility. Any pronouncement by the wife in cases other than various forms of tafweez would remain a mere pronouncement of a desire to get the marriage dissolved. A desire in the context of break in marriage would not become effective, even after the expiry of ninety days as dissolution, nor its withdrawal would amount to revocation of dissolu tion.

14. In this very connection, it will be pertinent to note that if the wife is compelled to follow the procedure contained in section 7 before filing the suit, and if there are complicated questions of law and facts involved, the Chairman and Arbitration Council having jurisdiction only to effect recon ciliation during ninety days and having no jurisdiction ether to hold that the wife is entitled to divorce or not so entitled, the entire proceedings before them would be redundant if the controversial legal and factual questions remain unresolved. In most of the cases, the proceedings would be fruitless unless the parties have had an opportunity of getting the complicat ed controversion resolved through Court.

15. There is no denying the fact that in a suit for dissolution of marriage filed by a wife before a Family Court, two attempts (under sections 10 and 12 of the Act, one, at pre‑trial stage, and, the other, after the evidence), at reconciliation are to be made by the Presiding Judge of the Court. This and si5ilar procedures contained in section 7 of the Ordinance are conducive towards satisfying the basic Islamic mandate that dissolution of marriage is essentially undesirable and resort thereto should, in no case, be hastily taken. These provisions lay down such procedures that the necessary cushion mechanism is provided to slow the process of dissolution of marriage. As has been seen above, in cases of dissolution of marriage through Court, it would not be consistent with the general and prima facie reading of the two relevant provisions namely, sections 7 and 8 of the Ordi nance, to visualise notice before the institution of the suit. But in order to satisfy the mandatory provision contained in section 8 in cases of dissolution through Court, it will be necessary to satisfy the provisions of section 7 after the pronouncement of decree. Thus, the total number of formal and serious attempts at reconciliation would come to three, one, under section 10 of the Act at pre‑trial stage, the other, under section 12 of the Act after the evi dence, and the third, under section 8 read with section 7 of the Ordinance after the pronouncement of the decree. This (three attempts)~the Legislatures must have treated as enough compliance with the Islamic mandate qua the undesirability of and hasty resort to, dissolution of marriage. A fourth attempt before the institution of the suit, when dissolution is absolutely inchoate, could not be the intention of the Legislature.

16. If the proposition that recourse under section 7 of the Ordinance is necessary before institution of suit for dissolution of marriage is accepted then there would be nothing to ignore a further extension of the same argu ment, namely, that another recourse under section 7 would also be necessary after the pronouncement of the decree. In other words, there would be nothing to prevent or reject a demand that recourse to section 7 of the Ordinance would be necessary at two stages one, before the institution of the suit, and, the other, after the pronouncement of the decree. This, of course, as noted above, cannot be visualised as being the intention of the Legislature.

17. Apart from the above pragmatic interpretation of the provisions contained in sections 7 and 8 of the Ordinance in the context of the question raised in these matters, even the technical interpretation thereof goes against the proposition that recourse to section 7 is necessary before the institution of the surf. The argument ignores two very important expressions used in section 8, namely, "mutatis mutandis" and " so far as applicable". Both these expressions were used by the Legislature with full consciousness that in cases of dissolution talaq otherwise than when it is pronounced by a man, section 7 without necessary changes would have absolutely no application. Both the expressions are very important. Mufatis mutandis ordinarily means nothing except "with necessary changes". When used in the context of another provision as in the present case (use thereof in section 8 with reference to section 7 of the Ordinance), this expression would further mean alt necessary changes "in points of detail". Thus read, the ‑ expression "mutatis mutandis" is complimentary to the other expression "so far as applicable". One pro vides a positive aid to the application of section 7 to situations arising under section 8 while the other provides a subtracting mechanism. Thus all ‑necessary changes in section 7 are permissible to be made in order to fit it in section 8 Conversely, it is not necessary to apply the entire section 7 to all the situations arising under section

8. The Legislature has permitted to exclude these provisions which are not applicable. The words used in sub section (1) of section 7 would, therefore, need some adjustment by way of positive changes while other provisions contained in section 7 would have to be omitted when making it applicable to cases for dissolution of marriage brought before Courts of law.

18. It is not necessary to redraft the entire section 7 for the purpose of interjection into section 8 in such like cases. As and when occasions would arise, the Courts would do the needful. For the purpose of present discussion, it would be enough if the most essential part of section 7 is re‑phrased so as to elucidate the above point. Subsection (1) of section 7, as it stands in the statute, provides that any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so and shall supply a copy thereof to the wife. Obviously, when reading this provision in conjunc tion with section 8, after due changes, in cases of dissolution of marriage initiated by wives through Courts, it would be rendered thus, "Any woman who wishes to get her marriage with her husband dissolved through Court, :.hall, as soon as may be after the pronouncement of decree for dissolution of marriage on any ground whatsoever, give the Chairman notice in writing of her having obtained such a decree and shall supply a copy thereof to the husband". The above comparison has made it clear that there are at least four words and expressions used in subsection (1) of section 7 which are essential to the entire provision. Their necessity cannot be obviated. They are, "after", "pronouncement", "talaq", and "having done so". These words and expressions, when read in the context of section 8 where it relates to suit by a wife for dissolution of marriage in a Court of law, would necessarily mean that the process under subsection (1) of section 7 would be initiated after some happening which can be equated with the pronouncement, in other words, a culminating act. In this case it would be a pronouncement of a completed act through decree which, of course, is ordinarily pronounced. The next essential is talaq. When rendered to its necessary equivalent in the context, it would wean "dissolution of marriage" which it is not possible to visualise by the wife merely pronouncing the word "talaq" in case she has to obtain decree for dissolution of marriage through Court. The stage of talaq would come when the decree for dissolution is granted. Similarly, the expres sion "having done so" cannot be visualised unless the decree by the Court is taken as the culminating point so as to satisfy this expression vis‑a‑vis the need under section

8. Thus interpreted, subsection (1) of section 7 would be operative only after the pronouncement of the decree and not before the institution of the suit.

19. Similar alternative rendering can be attempted in respect of subsec tion (3) of section 7 which provides that except in cases covered by subsec tion (5) (relating to Iddat), a talaq unless revoked earlier, expressly or other wise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman. ` When rendered mutalls mutandis. For the purpose of section 8, this provision would mean that a decree for dissolution of marriage through Court (in the other sense talaq), unless abandoned/compromised earlier, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) or a copy of the decree is conveyed to the Chairman: The concept of effectiveness of the dissolution of marriage cannot at all be visualised where a resort to the Court is necessary, unless the decree is passed. Similarly, abandonment of idea of dissolution of marriage cannot be thought of unless an occasion for revocation of the talaq in the form of a decree for dissolution arises.

20. The difficulty, which only on face appeared to be arising in such an interpretation related to the question of contravention of provi sions of subsection (1) of section 7 as rendered above for the purpose of section 8, is not insurmountable. Subsection (2) provides that who soever contravenes the provisions shall be sentenced to imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both. The detailed interpretation will have to be given ,by the criminal Courts as and when the questions would come before them but it is not difficult to visualise that if, after obtaining a decree for dissolution of marriage from the Court, it is necessary for the wife to send a notice copy under subsection (1) of section 7 then the law will have its own course if she fails to send such a notice. But it needs to be re‑emphasised, as held in Mst. Fahmida Bibi v. Mukabar Ahmad and others (P L D 1972 Lab. 694), and Mst. Maqbool Jan v. Arshad Hassan and another (P L D 1975 Lah. 147), there the Chairman and the Arbitration Council would have no jurisdiction to nullify the decree passed by a Court of law. What they can do is to make efforts at reconciliation between the parties and ultimately certify only whether it (reconciliation) has succeeded or failed. They have no jurisdiction to decide upon the questions of validity or otherwise of decree for dissolution of marriage passed by a Court of law. In other hand, they are only to provide a further cushion period of ninety days for the decree of dissolution of marriage to become operative and effective.

21. In the light of above discussion there is no alternative but to come to a conclusion that the proceedings under section 7 of the Ordinance, when considered in the context of section 8, are to be resorted to only after the decree for the dissolution of marriage is passed by a Court (in cases where the wives seek dissolution through Court).

22. It needs to be considered as to what is the effect of the drastic amendment brought about in section 21 of the Act through Punjab Amending Ordinance XIV of 1971. Before the amendment, as noticed in Para 5 of this judgment, this section provided for elaborate procedure as to how Family Court, after passing decree for dissolution of marriage, was to proceed in order to satisfy provisions contained in section 8 read with section 7 of the Ordinance. It was also provided in the unamended section 21 that the provisions contained in sections 7, 8, 9 and 10 of the Ordinance shall be applicable to any decree for dissolution of marriage passed by a Family Court. After the amendment, the procedure to be followed by the Family Court has been omitted. The essential substantive provision of unamended section 21, however, has been retained which provides that "nothing in this Act shall be deemed to affect any of the provisions of Muslim Family Laws Ordinance, 1961 or the Rules made thereunder." As earlier noticed, section 5 of the Act made similar provision,.‑ namely, that the exercise of jurisdiction of the Family Courts in their exclusive fields was subject to the provisions of the Ordinance. In other words, the combined reading of sections 5 and 21 of the Act, as amended, produces the effect that the Legislature did not, through the Family Courts Act, want to provide for those fields which stood already covered and occupied by the Ordinance. Confusion was already arising as to the interpretation of the details of procedure provided in the unamended section 21 which, in reality, dealt with a subject which fell within the fields of the Family Laws Ordinance. This, in my view, was an unhappy inter‑action of two separate statutes, the independent working of which was never intended by the Legislature to be marred or disturbed by the other. Thus, in order to remove the confusion, the Legislature deleted those pro visions in section 21 of the Act which were treated as an encroachment on the field occupied by sections 7 and 8 of the Family Laws Ordinance. It was also essential to do so because 3f redundancy of these provisions in view of the existence on the statute book of clear provisions contained in sections 7 and 8 of the Ordinance. What was provided in the details of unamended section 21 of the Act could, in law and in fact, be achieved by rendering certain changes in section 7 of the Ordinance through the instrumentality of permissive clauses used in section 8 thereof, namely, mutatis mutandis and so far as applicable. After the amendment, the confusion has been removed. The substantive and procedural laws have become fully demarcated. Under the Act, the substantive result in the nature of dissolution of marriage, when obtained through decree for dissolution of marriage, would be processed through the procedural provisions contained in section 8 read with section 7 of the Ordinance. In other words, when the substantive law would end its operation in case of decree .for dissolution of marriage by a Family Court, the operation of the procedural law contained in sections 8 and 7 of the Ordinance would commence. I am conscious that for sometime the omission of the procedural mechanism contained in unamended section 21 of the Act would create difficulties for the parties and the relevant functionaries but these difficulties would ultimately be obviated through precedent law as also through framing of adequate rules under the Family Laws Ordinance, for which there is ample scope. The details would not only be worked out but also become easy to be followed through.

23. The above interpretation of, and rationale underlying the amendment in section 21 gets further support from another amendment brought about by Punjab Amending Ordinance XIV of 1971. Section 8 of the Act was amended so as to delete therefrom the requirement in subsection (1'(c)(ii) of sending a notice to the Chairman of the Union Council, of the plaint to .be presented before a Family Court, within three days of the presentation thereof. Similarly, subsection (3) of section 8 was deleted. It provided that on receipt of the above‑mentioned notice, the Chairman was to display it on the notice board of the Union Council for a certain period and thereafter to inform the Family Court in this behalf. The explanation at the end of the section was also deleted. It, in fact, was a definition clause qua Union Council. In other words, the amendment by deleting certain portions of unamended section 8 achieved the same object of avoidance of clash with the field occupied by the Family Laws Ordinance as had been achieved by the amend ment of section 21 of the Act, as discussed above. This amendment of section 8, in another though formal way, gives strength to the view held by me in the controversy as to whether recourse to section 7 of the Ordinance is to precede or follow the decree for dissolution of marriage; in that the provisions contained in the Family Courts Act for sending a notice to the Chairman of the plaint to be filed in a Family Court for dissolution of marriage prior to or contemporaneous with the institution of the suit were deleted. There is only one question which needs to be resolved and that also is a matter of detail which, in my view can be looked after by the instrumentality of framing of rules under the Family Laws Ordinance. It relates to the consequences of failure or success of conciliation after the decree for dissolution of marriage is passed and a notice in that behalf is sent to the Chairman under section 7 of the Ordinance. The rules can provide and it can otherwise also, be visualised that in case of total success of the conciliation, the decree shall be deemed to have been abandoned by the wife. The conciliation will have the effect of compromise and thus avoidance of the decree. In other words, the decree shall have no effect if within the specified period, the reconciliation has been effected between the parties in accordance with the provisions of the Family Laws Ordinance and rules made thereunder.

24. After having carefully considered all the aspects of the controversy raised before me, I have come to the considered opinion that in case of dissolution of marriage through Court at the instance of wife, section 8 read with section 7 of the Ordinance shall be fully satisfied if the notice of the decree is sent to the Chairman after the decree and not before or contemporaneous with the institution of the suit. The Family Courts would thus continue to follow the practice of sending a copy of the decree to the Chairman concerned but at the same time it is also necessary for the wife, in whose favour the decree is passed, to independently inform the Chairman about the decree as also to send a notice thereof to the husband in a formal manner.

25. Except for Writ Petition No. 1774 in which only one argument with regard to the notice discussed above was raised, which is dismissed (no costs), in all other matters additional arguments have also been raised which need to be considered. I proceed to deal with‑them.

26. These three matters relate to two exchange (Watta) marriages. Khan petitioner in Writ Petition No. 1655 was married to Mst. Sardaran respondent therein. It is mentioned in the appellate judgment dated 5‑5‑73 (Armex. 'C' in Writ Petition No. 1254 filed by Mst. Zohran against Sher Muhammad) that aforementioned Khan is brother of Mst. Zohran while Mst. Sardaran is niece of Sher Muhammad. The third matter (R. S. A. No. 274) involves the same subject‑matter as is in Writ Petition No. 1254, which has been filed by way of abundant caution on the assumption that a regular second appeal under section 100, C. P. ,C., might not be competent. Mst. Sardaran tiled suit for dissolution of marriage against her husband Khan which was decreed by Syed Irshad Hussain, Family Judge, Jhang, on 6‑11‑72, on the ground of non‑maintenance (Annex. 'A' in Writ Petition No. 1655). Khan has, by Writ Petition No. 1655, challenges the order of the Family Court on various grounds which essentially relate to the merits/appreciation of evidence. In the other matter, Mst. Zohran, the sister of Khan, filed another suit for dissolution of marriage against her husband Sher Muhammad on various grounds including khaki', but it was dismissed by a different learned Family Judge, namely, Ch. Taj Muhammad, a month later i.e. on 4‑12‑72 (Annex. 'A' in Writ Petition No. 1254). Mst. Zohran filed an appeal before the learned District Judge which was dismissed on 5‑5‑

73. Then she filed R. S. A. No. 274 and thereafter, Writ Petition No. 1254 claiming same relief, namely, that her suit for dissolution of marriage should also have been decreed, if not on other grounds, at least on ground of khula'. It may be mentioned here that in both the matters, the husbands had filed suits for restitution of conjugal rights which were consolidated with the respective suits for dissolution of marriage and were decided accordingly.

27. Mr. Aziz Ahmad Bajwa, learned counsel for Khan and Zohran the writ petitioners in this Court, at one stage argued that the suit for dissolution of marriage of Mst. Sardaran against Khan should not have been decreed on ground of non‑maintenance; because, as contended, she having voluntarily left the custody of heir husband was a refractory wife and thus was not entitled to maintenance and because the learned trial Judge did not give a finding that she was entitled as of right to stay away from her husband; therefore,, decree for dissolution of marriage on ground of non- maintenance could not have been granted. Later on however, when arguing Mst. Zohran's petition, learned counsel realised that the arguments on ground of khula' in favour of Mst. Zohran advanced by him, cut at the very roots of his case in the petition filed by Khan. He then modified his stand and argued that in the circumstances of these cases, it is not only proper but also legal that both the marriages be dissolved. Mst. Sardaran's marriage ,having already been dissolved, he did not in this context press the writ petition filed by Khan. With regard to the petition of Mst. Zohran, he ,vehemently contended that issue No. 8 on khula' had not been correctly ,decided by the learned Courts blow. His main argument was that these being watta marriages, if Mst. Sardaran's marriage has been dissolved in the circumstances noted by both the Courts below, it is impossible for Mst. Zohran and Sher Muhammad to live together as husband and wife even if forced to stay in wedlock and thus they would not be able to keep the limits of God. He also took advantage of several attempts made in this Court during the pendency of these matters so as to bring the parties together at an agreed dissolution which had met with failure. Here, I may 13ause to mention that both the learned counsel representing opposite parties made strenuous honest efforts to effect a compromise between them, but the breach between the two wed‑locks seemed to be so deep that all attempts proved fruitless.

28. Mr. Khaleeq Ahmad Ansari, learned counsel for Sher Muhammad and Mst. Sardaran, who himself had been participating in the attempts at settlement between the parties, adopted a very fair and balanced attitude in so far as his conduct of these cases is concerned. According to him, if cases of both the parties might have been consolidated and heard by the same Court, the results might have been different, namely, either both the marriages would have been dissolved or both might have been kept intact. He further contended that even though technically speaking it was possible for him to defend the judgment of the District Judge in Mst. Zohran's case for dissolution of marriage, yet he thought that the atmosphere in our society qua Watta marriages is such that Mst. Zohran's conduct in leaving her husband's house and seeking dissolution on ground of khula' on Mst. Sardaran filing a suit for dissolution of marriage against her husband was justified. He ultimately agreed that it would have been fair if Mst. Zohran's marriage also should have been dissolved because, she after separation of Mst. Sardaran from Khan, would not be able to keep the limits .of God in her wedlock with Sher Muhammad. He also agread that the learned District Judge did not apply the law of khula' correctly.

29. I agree with the position taken by both the learned counsel in these matters. The learned District Judge in the judgment dated 5‑5‑73. (Annex. 'C' in Writ Petition 1254) devoted considerable space to the facts and other aspects of the question relating to exchange (Watts) marriages. He was clearly of the view that the breach in Mst. Zohran's marriage with Sher 'Muhammad was caused by the breach and litigation in Mst. Sardaran's marriage with Khan. After having noticed the above aspect which would 'have essential bearing on the question of khula' the learned Judge proceeded to decide the issue on cruelty by making reference to the evidence ,produced by Mst. Zohran and affirmed the decision of the trial Court against Mst. Zohran on this issue. Thereafter, he observed as follows :‑

"I need not take up now every issue separately because the same witnesses are to be discussed in deciding those issues, who had already been discussed in issue No.

1. So far the reasons (about the evidence of Zohran Bibi) given above, I decide all those issues in favour of Sher Muhammad confirming the finding of the learned lower: Court on those issues." The other issues apart from cruelty, which were thus left un-discussed and. unconsidered, related to non‑maintenance, non‑performance of marital obligations, misappropriation of ornaments by the husband, false charge of' adultery against the wife, association of the husband with women of evil reputes, addiction of the husband to intoxication, entitlement of the husband to restitution of conjugal rights, and, lastly, "whether the plaintiff was entitled to a decree for dissolution of marriage on the basis of khula'? If so, on what terms?" It is clear from the reading of the impugned judgment passed by the learned District Judge in appeal that he did not pay any attention to the question of khula'. It is not dented that appeal on this ground as also on other grounds was competently filed by Mst. Zohran before the learned District Judge. She was entitled as of right to get the question of khula' adjudicated in appeal. The failure of the learned District Judge to consider the question of khula' amounts to non‑exercise of appellate jurisdiction conferred on him in matter of dissolution of marriage (qua ground of khula'). As pointed out by the learned counsel for Sher Muhammad and Mst. Sardaran, if the learned District Judge would have correctly appreciated the law relating to khula', he would have taken into, account the breach in the Watta marriage of Mst. Sardaran and Khan as also the decree of dissolution of that marriage which had been passed prior to the decision of the suit filed by Mst. Zohran. If this would have been done and the question of khula' would have been discussed by the learned District Judge with reference to the case‑law available thereon, the results might have been different. Thus, it is also clear that the learned Judge failed to consider implications of one of the major aspects involved in the case, namely, khula' and thus acted without lawful authority. Con sidering the entire case in this perspective there is no alternative but to accept the writ petition filed by Mst. Zohran and set aside the judgment and decree passed by the learned District Judge on 5‑5‑73 as illegal and without lawful authority. I order accordingly. The appeal filed by Mst. Zohran before the learned District Judge shall be deemed to be pending and shall be heard afresh and decided in the light of the above discussion and in accor dance with law. Regular Second Appeal No. 274 filed by Mst. Zohran does, not need any separate disposal. She having succeeded in the Writ Petition, this R. S. A. is accordingly disposed of, as in the changed position learned counsel for Khan did not press the Writ Petition filed by him (No. 1650, the same therefore is accordingly disposed of as not having. been pressed. All the three matters thus stand disposed of. There shall be no order as to costs.

30. In Writ Petition No. 1528 suit was filed by Mst. Zubeda Begum for dissolution of marriage against her husband Muhammad Bashir on:, various grounds (cruelty, misappropriation of dowry, non‑maintenance, non performance of marital obligations and khula') but the same was dismissed, by a learned Family Judge on 2‑6‑71 (Annex. B). On appeal filed by Mst. Zubeda, the learned District Judge decreed the suit on ground of khula'. Muhammad Bashir, the husband has challenged the appellate order in. writ jurisdiction of this Court. In the other case Writ Petition No. 2347; filed by another husband Mst. Surraya Begum, the wife had filed a suit for dissolution of marriage on ground of cruelty, misappropriation of ornaments, etc., and khula'. It was dismissed by a learned Family Judge on 29‑2‑

72. On appeal, the learned District Judge accepted the plea of khula` and accordingly decreed the suit. Therefore the Writ Petition.

23. Mr. Muhammad Hussain Choudhry, learned counsel for both the writ petitioners, raised two more points in addition to the question of notice. They are firstly, there was not enough material before the learned District Judge to come to the conclusion that the parties would not be able to keep the limits of God and secondly, that the learned District Judge was bound in each case to direct the wife to return the benefits obtained from the husband as a condition precedent for khula'. On the question of appreciation of material/evidence qua khula', after bearing the learned counsel I do not find any justification for reappraisal thereof in writ jurisdiction. It needs to be noticed that the breach in both the cases is to keep that even during the pendency of the writ petitions, the parties have not come to any settlement. The conclusions reached by the learned Appellate Court in each case with regard to attitude of each party towards the other in my view are unexceptionable. On the question of benefits also, the argument of the learned counsel cannot succeed because in these cases the husbands had not made any demands for the return of the benefits. In one case, although there was some assertion in the written statement by the husband that he had given some money from his income to his parents‑in‑law, there is no clear indication that it was a benefit given to the wife in return for marriage. The allegation with regard to the fact that the wife had taken away the articles is also vague and does not show that those articles belonged to the husband. The other so‑called benefits are not mentioned in the written statement. In Writ Petition No. 2347, apart from khula', the finding of the learned Court below on the question of cruelty was reversed by the learned appellate Court. Thus on this ground as well, the suit for dissolution of marriage was decreed. In any case, there would be no question of return of benefits qua the ground of cruelty. It also needs to be noticed that in the other Writ Petition (No. 1528), the respondent (wife) has remarried, of course, after the appellate order was passed in her favour. Considering all the circumstances of the case, I am of the view that apart from merits there is no justification for exercising discretion in these writ petitions so as to set aside the impugned decrees, which would materially disturb the changed position so far suffered by the wives. Both these petitions are accordingly dismissed, but there shall be no order as to costs. Writ Petition No. 1085/74

31. In this case the petitioner, a wife, had filed a suit in a civil Court in January 1966, for dissolution of marriage on various grounds. It was dismissed ex pane in February 1966. The ex parte decree was set aside in March 1968, and thereafter, as a result of full‑fledged trial, the suit of the petitioner was dismissed by a learned Civil Judge on 12‑1‑

71. The petitioner filed an appeal before the District Judge which was also dismissed on 17‑6‑

72. She then filed regular second appeal under section 100, C. P. C., which came up for hearing before me. A preliminary objection was raised from the respondent (husband) side that the trial Court having decided the original suit as a Family Court. the first appeal before the learned District Judge was under section 14 of the West Pakistan Family Courts Act, therefore, second appeal under section 100, C. P. C., was not competent. I In order to avoid this objection, the petitioner requested that she be allowed to convert the appeal into a writ petition. This prayer was resisted from the respondent side, It was, however, allowed by my order dated 21‑6‑

74. The petitioner converted the appeal into writ petition which was numbered as 1085/74. It was heard in limine in presence of the learned counsel for the respondent. The following two points were noted for consideration :

"(i) that effort at reconciliation at pre-trial and post-trial two stages being most essential part of the proceedings before a Family Judge and the same not having been made, the entire proceedings are without lawful authority ; and (ii) that on the expression of desire for and facts shown with respect to khula` and on undertaking of return of benefits obtained by the petitioner, the learned Judge, Family Court should have decreed the suit for dissolution of marriage."

32. No doubt, the learned trial Judge failed to mention in the impugned judgment that the suit for dissolution of marriage was tried by him as Family Court, yet the perusal of the record revealed that in reality he conducted the proceedings as a Family Judge. Interim orders and proceedings used to be signed by him as such I, therefore, hold that the trial, after the ex parte decree was set aside was held by the learned trial Judge as a Family Court. The record further revealed that even though the learned Judge proceeded to hear the suit as a Family Court, the essential requirements of law, as contained in sections 10 and 12 of the Family Courts Act with regard to attempt by the learned Judge to effect a compromise or reconciliation between the parties at the pre-trial stage as also at another stage, namely, after the close of the evidence, were not complied with. I have held in a number of cases that the attempt on the part of the learned Presiding Judge to effect a compromise or reconciliation is not a mere question of technicality. It is an important function which he has to perform in cases triable under the Family Courts Act. Where he fails to do so, he fails to exercise essential part of jurisdiction vested in him and thus acts without lawful authority. On this short ground, the judgment of the learned trial Judge as also the learned first appellate Court wherein this aspect has not at all b.-en noticed, are liable to be set aside.

33. The argument of the learned counsel for the respondent that discretion should not be exercised in favour of the petitioner on account of the alleged bad conduct on her part in leaving the respondent's house, has not impressed me. The suit having been competently filed, it was the duty of the learned trial Judge to try the same and act in accordance with law. An essential part of the law having not been complied with, there is no alternative but to accept this Writ Petition, set aside the impugned judgment and remand the case to the learned Family Court concerned for fresh trial in accordance with law. I order accordingly. There shall be no order as to costs. S. A. H. Order accordingly.