1979 PLP 647 (CLC)

The petitioner by this constitutional petition seeks a declaration that the decree for dissolution of marriage granted against him by Family Court Bhakkar, on 26‑3‑1978 was without lawful authority.

2. In the suit brought by 1lst. Bashiran Bibi, respondent No. 1, a number of issues had been framed of which issue No. I related to cruel treatment and issue No. 4 to subsistence of hatred between the spouses. Upon these issues having been found in favour of the respondent, the decree had been passed and at the same time, the petitioner's suit for restitution of conjugal rights which had been consolidated with the respondent's suit, had been dismissed.

3. The main ground for attack is non‑compliance of the provisions of section 10(3) and section 12 of the Family Courts Act. Subsection (3) of section 10 requires the Court at the pre‑trial stage before framing issues to "attempt to effect a compromise or reconciliation between the parties, if this be possible". If a compromise or a conciliation is not possible, the Court has to frame issues and proceed with the suit. After the parties close their evidence, the Family Court is again required by section 12 to "make another effort to effect a compromise or a reconciliation between the parties" and if no such compromise of reconciliation is p,3ssible, then the Court will announce its judgment. The proceeding‑sheet of the trial Court dated 20.9‑1977 that the counsel for the parties were present and that issues were framed as a recon‑illation had failed. The actual words are After the evidence of the parties was recorded on 4‑12‑1977, the case was adjourned to 3‑1‑1978 for " and arguments. The proceeding‑sheet records the presence of the counsel :or the parties and the fact that

4. The contention is that the provisions of law in regard to an attempt at reconciliation are mandatory, that in the absence of the spouses in the Court, no attempt can be said to have rightly been made for effecting a reconciliation and that the recording of the factum of failure of reconciliation bar the trial Court was no more than a mere formality without performing in substance the duty enjoined upon the Court by law. The case of the petitioner is that no compliance of the mandatory provision of the law can be said to have been made at all and as such the trial was vitiated. Reliance was placed on the observations made by a learned Single Judge of this Court in Mst. Fateh v. Bakhsha R. S. A. No. 1021 of 1969 as referred to in Mst. Zohran Bibi v. Manzoor Ahmad ere. (1). In this case of .Vst.2;ohran Bibi where a chit suit had been filed for a declaration in the nature essentially of jactitation of marring;., it was held that w civil Court had no jurisdiction, for a suit for jactitation of marriage would be exclusively triable by :. Family Court. It was also observed that there was great divergence of the procedure before the civil and the Family Courts, particularly in the matter of compulsory efforts on the part of the trial Judge at reconciliation. In this connection, the learned Judge had referred to the aforesaid R. S. A. of Msi. Fateh, wherein he had observed that "a conscious attempt by the Presiding Judge at reconciliation between the parties at specified stages during the trial is mandatory, rather it is the essence of the whole new procedure for trial of such matrimonial matters. He therefore concluded "As neither the parties nor the learned trial Court were conscious (1978 S C M R 130) P L D 1975 Lab. 318 about the law applicable in this matter, therefore, it cannot be held that a proper trial under the Family Courts Act has taken place."

5. I am in full agreement that the provisions relating to reconciliation are meant for substantial compliance and are not a mere formality and as such the Court was expected to make a genuine attempt by affording the parties to meet each other and explore grounds for a reconciliation. The fact that such an attempt has to be made twice, once before recording evidence and again before pronouncing judgment, shows that an effort to bring about a reconciliation is the very essence of the proceeding. A severance of the marriage‑tie can be decreed only if both the attempts have failed. Any slackness on the part of the trial Court in obeying the direction of the law is not to be approved. The question, however, is if in the circumstances of the case before me, the trial can be said to be vitiated. I find that the counsel for the parties had been present on both the occasions i.e., at the pre‑trial stage on 20‑9‑1977 and at the final stage on 31‑1‑1978 when the fact that the reconciliation attempt had failed, was recorded. It were desirable that at both the stages, the parties themselves should have been present and the trial Court should have insisted on their presence because a direct meeting between the spouses would be helpful to attempting a reconciliation. Therefore, the mere recording, in the presence of the parties' counsel, of the fact that a reconciliation was not possible is, to my mind, not a satisfactory compliance of the relevant provision of the law. But I am not inclined to go as far as to hold that proceeding it self was vitiate of or it is possible far the parties to express themselves through their Attorneys or Advocates. In Muhammad Sadig v. Mst. Khurshld Fatima etc. (2) where the Family Court by questioning the father of the husband and without requiring the husband's presence, had recorded a failure at reconciliation at the pre‑trial stage, it was held that this would be an irregularity "which has not in any way affected the out‑come of the suit." Even otherwise, there is nothing in the proceeding to suggest that the parties were in any mood at all to accept suggestions of reconciliation. The respondent in her evidence recorder on 10‑10‑1977, had stated

6. The writ petition must, therefore, fail. It is accordingly dismissed, though I make no order as to costs. Petition dismissed.