2000CLC 1116 (PLP)

(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑ ‑‑‑‑Ss. 5, 10(3) & 12(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional petition‑‑‑Dissolution of marriage‑‑‑Wife filed suit for repudiation of her Nikah on attaining the age of puberty‑‑‑Marriage between the spouses was not consummated‑‑‑Family Court after following the proper procedure for trial decreed the suit‑‑‑Contention raised by the husband was that Family Court was supposed to constitute a Board for reconciliation between the spouses‑‑‑Validity‑‑‑Wife on attaining the age of puberty, exercised her right under the law and proper procedure was followed by the Family Court‑‑‑Where on illegality or irregularity had been committed by the Family . Court, such judgment could not be interfered with in the Constitutional jurisdiction of High Court‑‑‑Constitutional petition being without merit was dismissed in circumstances. Mehmood Butt v. Mst. Bibi Hanfa 1986 CLC 3025 ref. Sikandar Khan for Petitioner. Zia‑ur‑Rehman for Respondent No. l (on Pre‑Admission Notice). MALIK HAMID SAEED, J.‑‑‑ The Nikah of Anwar Rashid, petitioner, was solemnized with Mst. Minhaja, respondent No. l; in March, 1998, but on 29‑1‑1999 she filed suit in the Court of Judge, Family Court, Mingora, Swat, for repudiation of her Nikah with the petitioner on 'the grounds of attaining the age of puberty. It was alleged in the plaint that it was told by the petitioner that he is bachelor but he is not only a married person but is also father of a female child and that at the time of Nikah, she was minor and has just attained puberty, therefore, announces her right of divorce under the law, as neither "Rukhsati" has yet taken place, nor any dower has been paid to her. The petitioner contested the suit by filing written statement wherein he denied the assertions of respondent No. l and stated that she was major at the time of Nikah which has been performed with her own sweet‑will and, therefore, she cannot ask for the relief sought. ,

2. Pre‑trial reconciliation took place between the parties but without any fruitful result and, therefore, respective evidence of both the sides was recorded, Thereafter, the learned Judge, Patuily Court also made efforts for post‑trial reconciliation, which also failed and, therefore, the respondent No.l was granted the decree as prayed for vide impugned judgment and decree, dated 3‑7‑1999 of the learned Judge, Family Court, hence the present Constitutional petition by the petitioner against the said judgment and decree.

3. Pre‑admission notice was ordered against the respondent No. l and in response to such notice Mr. Zia‑ur‑Rehman, Advocate, appeared on behalf of respondent No.

1. We have heard the learned counsel for the parties and gone through the impugned judgment.

4. The learned counsel for the petitioner argued that no proper attempts have been made by the learned trial Judge for the reconciliation as required under sections 10(3) and 12(2) of the Family Court Act, 1964 and that under the Islamic law too, the learned trial Court was bound to constitute a board for reconciliation purposes consisting of two members, one from the husband family and the other from the wife and in absence of observing such procedure the impugned judgments and decree of the learned trial Court is liable to be set aside and the case may be remanded back for trial afresh according to law. The learned counsel appearing on behalf of respondent No.l vehemently opposed the arguments of the learned counsel for the petitioner and stated that the learned trial Judge has not committed any illegality and has decided the case quite in accordance with the relevant provisions of law.

5. The order sheets of the learned trial Court, provided to us by the learned counsel for respondent No.l in Court today, clearly indicate that ' on 13‑2‑1999 vide Order Sheet No.6, reconciliation proceedings took place between the parties at pre‑trial stage but resulted in failure. Thereafter, the said course was re‑adopted after the close of the evidence of both the parties, but still no settlement could be arrived at between the parties from such reconciliation as is evident from Order Sheet No.14, dated 27‑5‑1999. In view of the above, it cannot be said that the learned trial Court has failed to observe legal procedure in this case as required under sections 10(3) and 12(2) of the Family Court Act, 1964, which provides that the Court shall make attempt at pre‑trial to effect a compromise or reconciliation between the parties, if this be possible; and shall make another effort for such compromise or reconciliation after the close of evidence of both sides.

6. Similarly, the argument of the learned counsel for the petitioner that the learned trial Court was required to constitute a Board for re‑conciliation under the Injunctions of Islam is also without any force. The Family Court Act, 1964 stands extended to Malakand Division under Schedule‑I of N.‑W.F.P. Regulation No.II of 1994 and the Courts functioning there are 8 bound to decide the cases strictly in accordance with the laws made applicable to such area. The relevant provisions of the law applicable in the case have been fully followed by the learned trial Court and there remains no ambiguity on this score. In Mehmood Butt v. Mst. Bibi Hanfa 1986 CLC 3025 the following observations have been made:‑‑‑ The impugned judgment is thus not open to any exception on this score also. The marriage between the spouses was not consummated and the respondent No. l being minor at the time of Nikah on attaining the age of puberty exercised her right under the law and proper procedure for trial of the suit was followed by the learned Judge, Family Court. Hence we see no patent illegality or irregularity to have been committed by the learned trial Court while deciding the case in hand. . The impugned judgment cannot, therefore, be interfered with in the Constitutional jurisdiction of this Court. The writ petition, being without merit, is hereby dismissed. . Q.M.H./M.A.K./30/P Petition dismissed.