P L D 1974 Karachi 20 (PLP)

Makhdoom Sharif for Appellant. Khwaja Mahfoozur Rehman for Respondent No.1. Date of hearing: 22nd October 1973. JUGGNAENT MUHAMMAD HALEEM, J.--‑By this petition, the petitioner has impugned the order dated 17th March 1973, of the Additional District Judge, Karachi, by which he remanded the case to be retried by a Muslim Judge.

2. In brief, the facts are that the petitioner married respondent No. I in April 1957, at Khanewal, District Multan, and agreed to pay prompt dower amounting to Rs. 1,

035. They resided at Khanewal and later shifted to Karachi. After‑ eight years of the wedlock the petitioner, it is alleged, maltreated her; and once he even took her to her parents' house to leave her there but on the intervention of the well‑wishers of the parties he changed his mind and took her back promising at the same time that he would be kind to her. The petitioner, however, got addicted to drinking and gambling and associated with men and women of bad character and upon her protest he treated her cruelly and stopped paying her money. It is also alleged that he insisted that she should entertain his friends and on her refusal he beat and drove her out of the house on the morning of 22nd May 1970, after taking away her belongings. She took refuge in her parents' house and is being maintained by them. She filed a suit at Karachi for the dissolution of marriage in the Family Court presided over by Mr.. Lalchand Peswani. The petitioner denied the allegations and pleaded that his father‑in‑law retained his earnings of Rs. 4,400 and now wants to marry her to Sultan, who has promised to return this amount on behalf of his father.

3. The Family Court settled five issues and except for the issue as to the non‑payment of dower, all others were decided against her vide order dated 31st August 1972, and in the result the suit was dismissed. It was against the dismissal of the suit that she filed an appeal, which was heard by the Additional District Judge, Karachi. Before him, the appeal was not argued on merits but her counsel took up a new plea, not hitherto raised, that a non‑Muslim cannot act as Qazi and consequently cannot hear a suit in which khul'a is desired by a wife from her husband, which was allowed to be raised as it was one of pure law'. He reached the conclusion after reviewing the case‑law that "a Muslim marriage can only be dissolved by a Judge professing Islam and the provisions of Dissolution of Muslim Marriage Act, 1939, are to be read in conjunction to this position". However, in reaching the above conclusion the learned Additional District Judge failed to notice that the West Pakistan Family Courts Act, 1964, provides the forum for the trial of the suit and the qualification of the Judge who can try it vide sections 3 and 4 of the Act. Whereas the former provides for the establishment of Family Courts the latter, gives quali fications of a Judge, namely that he is or has been a District Judge, an A Additional District Judge or a Civil Judge. It is not provided that the Judge should be a Muslim, this qualification cannot be read into the section, there fore, it is not open to go beyond the statutory provision and look for any other qualification. The learned Additional District Judge fell into error when he held that the Judge should be a person professing Islam; though without doubt he occupies the position akin to that of a Qazi since he could effect a divorce on any ground, on which it could be granted under the Muslim Law. The emphasis is on the functions which are alike and not that that the Judge should only profess Islam. In this view of the matter, the order is bad in law and liable to be quashed and we order accordingly. Since the appeal has not been decided on merits, it shall be deemed to be pending, but we would direct that it should be heard by some other District Judge. There will be no order as to costs. A. H. Order accordingly.