P L D 1993 Supreme Court 464 (PLP)

SAJJAD ALI SHAH, J.‑‑‑By this appeal filed under Article 203‑F(l) of the Constitution of Islamic Republic of Pakistan is challenged decision, dated 11‑5‑1992 of Federal Shariat Court: PLD 1992 FSC 527, whereby Shariat Petition is dismissed holding that Explanation (4) to clause (d) of Rule 2 of the Federal Services Medical Attendance Rules, 1990, providing for medical treatment of one wife nominated by a Government servant (if he has more than one wife) is not repugnant to the Injunctions of Islam.

2. The Federal Services Medical Attendance Rules, 1990 have been framed and are in the field as contemplated under section 25 of the Civil Servants Act, 1973 (LXXI of 1973). Rule 2(d) defines "family" to which are added 5 Explanations and in them Explanation (4) is relevant which is reproduced as. under:‑‑ "In case of more than one wife, the wife nominated by the Government servant to receive medical attendance and treatment will be entitled to it." 3. to Injuncions of Islam or not, the Federal Shariat Court has held as under:‑‑‑ On the question whether Explanation reproduced above, is repugnant "It does not offend the Injunctions of Islam in so far as the relationship between the employer and employee is concerned. It is, in fact, a concession which has been granted under the Service Rules and cannot be stretched to provide medical facilities to more than one wife. Moreover, it will perhaps not be improper to add that the Medical Rules equally apply to Muslims and non‑Muslims." has appeared in person before us and stated that he was not heard before the Federal Shariat Court. We have heard him in detail and noted his submissions. It appears from the impugned judgment that Federal Shariat Court was impressed by the fact that rules mentioned above, applied both to Muslims as well as non‑Muslims and, therefore, such provision has been made which covers Muslims as well. as non‑Muslims on equal basis. In this context it is I worth mentioning, religiously speaking, that in Islam a Muslim is allowed to have more than one wife up to four wives if he is capable of maintaining them on the basis of equality. In other religions polygamy is not permissible. To this extent, undisputedly provision mentioned above is not in conformity with facility allowed by Islam.

5. Another reason given in the impugned judgment is that the medical concession governing relationship between employer and employee is made available to one wife nominated by Government servant for the reason that it is the duty of a Muslim Government servant to maintain his wives by giving them equal treatment and the duty of the Government is restricted to one wife and in support reliance is placed on the assumption that Government gives facility of providing one house to the Government servant and not more than one. Against the assumption, counter‑argument can be raised that in one house provided by the Government, a Muslim Government servant can maintain and keep more than one wife as allowed by Islam and maintain them equally so far he is concerned but there is no justification for the Government to discriminate in favour of one wife in respect of medical facility, which shall run counter to permission given by Islam.

6. It appears that important question to be noted is as to what was the intention of rule‑making authority in providing this medical facility to the members of the family of Government servant. "Family" is defined in C clause (d) of Rule 2 of the above‑mentioned Rules, which is reproduced as under:‑‑‑ "'Family' means parents, husband, wife, legitimate children and step children of Government servant's parents, sisters and minor brothers rsiding with and wholly dependent upon him."

7. Five Explanations have been inserted after clause (d) to elaborate and explain further scope of family. Main criterion stated in the definition of "family' is that facility is to be provided to the members of the family who are dependent upon the Government servant. Such dependents include step‑sons of Government servant (sons of wife from her previous husband) until they complete age of 18 years and step‑daughters until they marry or cease to be dependent as provided in Explanations (2) and (3). Apart from children and step‑children other dependents of Government servant can include parents, sisters and minor brothers. Categories mentioned above, certainly enlarge number of dependents of Government servant, who can with legal justification claim entitlement to the facility of medical treatment. In the circumstances Explanation (4) allowing medical facility to one wife nominated by a Government servant does not appear to be consistent with scope of definition of "family‑and dependents mentioned therein and cannot be justified for economic reason or any other reason like equal treatment between ~ Muslim and non‑Muslim Government servant. In any case, there would be negligible number of cases of Muslim Government servants having more than one wife.

8. For the facts and reasons mentioned above, we are of considered view that Explanation (4) reproduced above, is inconsistent with and offends against permission given by Islam of having more than one wife. In the result impugned decision of Federal Shariat Court is set aside and respondent is directed to make suitable ‑amendment in the rules mentioned above, to repeal Explanation (4) within the stipulated time. Appeal is allowed. (Sd.) Abdul Qadeer Chaudhry, J (Sd.) Sahad Ali Shah, J (Sd.) Saeeduzzaman Siddiqui, J (Sd.) Pir Muhammad Karam Shah, J MUHAMMAD TAQI' USMANI, J.‑‑I have had the privilege of perusing the draft judgment proposed to be delivered by my learned brother Mr. Justice Sajjad Ali Shah in this case. I agree with him in all the conclusions drawn by him. However, I would like to add a few words to further explain the basic principle underlying the decision and to remove some doubts which may arise from the Sharia view point. It is not incumbent upon the employer in Shariah to provide medical facilities to each and every member of the family of his employee. In Shariah, e terms and conditions of the employment may be settled between the parties with mutual consent which may or may not include the medical facilities I r an employee or his family. But once it is settled in the terms of the agreement that medical benefits shall be provided to all those members of the family of the employee who are dependent upon him, then all s legal wives, regardless of their number, shall be entitled to enjoy, such benefits. As rightly pointed out by my learned brother in his leading judgment, the intention of the author of the impugned rules is to provide medical facilities to all those members of a family of a Government servant who are dependent upon him. The rules are so generous in this respect that even the brothers, sisters, step‑sons and step‑daughters are included in the list of beneficiaries of the medical facilities regardless of their number, meaning thereby that if a I Government servant has more than a dozen brothers, sisters, sons etc. all of them shall enjoy medical facilities, but it is only the second wife that has been singled out for being deprived of these benefits and has been expressly excluded from the definition of the 'family'. This scheme of the rules clearly indicates that a second wife has not been excluded from the list for the sake of economy. Had it been so, brothers and sisters would not have been preferred over the second wife, because the maintenance of a legal wife is the exclusive liability of her husband, no matter whether she is the first or second wife, while the maintenance of his brothers and sisters may not be the exclusive liability of a Government servant. It may be shared by his other brothers and relatives according to the Holy Qur'an. (see: Surah No.2 Verse No.23:3). Looking at the impugned rules in this perspective, it becomes evident that the exclusion of more than one wife from the definition of 'family' has not been designed to reduce the number of the beneficiaries or to lessen the burden on the exchequer, but it is based on non‑recognition of her being a dependant family member of the employee, otherwise there is no reason for allowing medical facilities to a large number of relatives including brothers, sisters, step‑sons. and step‑daughters and excluding the second wife only. The scheme of the rules clearly shows that by depriving her from medical facilities the very fact of her being a family member is being denied and her status as a legally‑wedded wife is not recognised. This conceptual basis of the impugned rule is in clear contravention of the verse of the Holy Qur'an which says: "Marry women of your choice, two or three or four, but if you fear that you shall not be able to maintain equity between them, then only one". (Surah No.4, Verse No.3). On the basis of this verse of the Holy Qur'an it is rightly mentioned by my learned brother in his leading judgment that a Muslim is allowed to have more than one wife up to four wives with the condition that he is capable of maintaining equality between them. Therefore, any provision which does not recognise this Qur'anic permission and its related rules is violative of the 1 Injunctions of Islam. It is in this context that Explanation No. 4 of rule 2(d) of the Federal Services Medical Attendant Rules, 1990 is held to be repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. This decision shall take effect on 31st of August, 1993 whereby the impugned explanation of rule 2(d) shall cease to have effect. M.BA./1‑173/S Appeal allowed.