2024 C L C 1648
[Lahore (Rawalpindi Bench)]
Before Mirza Viqas Rauf, J
Syed ASIF HUSSAIN SHAH----Petitioner
Versus
FEDERATION OF PAKISTAN and others----Respondents
Writ Petition No.167 of 2024, decided on 12th June, 2024.
(a) Islamic law---
----Dissolution of marriage---Procedure---Scope---Islam permits dissolution of marriage between Muslim spouses in three ways i.e. Talaq, Mubarat and Khula---Talaq is an arbitrary and unilateral act of the husband, whereby, he may divorce his wife---Mubarat on the other hand is one of the forms of dissolution of marriage whereunder spouses may agree to part their ways through mutual consent---Contrary to both, a Muslim woman is also vested with the right to obtain divorce through Court of law by instituting a suit, which is termed as "Khula".
Surah 2 Al-Baqarah, Ayat 229 rel.
(b) Family Courts Act (XXXV of 1964)---
----S. 10(4), proviso---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Dissolution of marriage---"Khula" and "Divorce"---Distinction---"Khula" is right of a Muslim woman to seek dissolution of her marriage in which she gives or consents to give a consideration to husband for her release from marriage as determined by Court---"Khula" and dissolution of marriage under Dissolution of Muslim Marriages Act, 1939 operate under entirely different legal systems, leading to distinct outcomes.
Ibrahim Khan v. Mst. Saima Khan and others PLD 2024 SC 645 rel.
(c) Family Courts Act (XXXV of 1964)---
----Ss. 10(3) & 10(4)---Word "reconciliation"---Object, purpose and scope---Reconciliation is to bring end to differences through meaningful and concrete effort---Word "reconciliation" postulates adoption of such measures as can be proved as a factor for harmonious union between the spouses after redress of grievances which had led them to have recourse to litigation.
Surah 2 Al-Baqarah, Ayat 229; Black's Law Dictionary; Oxford, Advanced Learner's Dictionary; Cambridge Dictionary and Webster's Dictionary rel.
(d) Family Courts Act (XXXV of 1964)---
----Ss. 10(3) & 10(4)---Khula---Dissolution of marriage---Petitioner / husband was aggrieved of dissolution of marriage by Family Court on the basis of khula after reconciliation proceedings between parties had failed---Validity---Family Court under S.10(3) of Family Courts Act, 1964 may at pre-trial stage, ascertain points of controversy between parties and attempt to effect compromise between them and for such purpose neither provisions of Family Courts Act, 1964 nor the rules framed thereunder provide any procedure---It has been left to discretion of Family Court to do so, keeping in view the peculiar facts and circumstances of each case---No hard and fast rules can be laid to bind down Family Court to strictly follow the same for the purpose of effecting compromise or bringing reconciliation between parties---In the present case despite efforts, parties did not arrive at any reconciliation, and respondent / wife was not willing to reconcile with petitioner / husband at any cost---Family Court could not compel any party to effect compromise against his / her wishes instead could make a genuine effort to bring reconciliation between parties amicably---High Court declined to interfere in judgment and decree passed by Family Court as petitioner failed to point out any illegality or perversity---Constitutional petition was dismissed in circumstances.
Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others PLD 2014 FSC 43; Federation of Pakistan v. Aitzaz Ahsan and another PLD 1989 SC 61; Syed Amir Raza v. Mst. Rohi Mumtaz and others 2023 SCMR 1394; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 (W.P.) Lah. 566; Dr. Mahmood-ur-Rahman Faisal v. Government of Pakistan through Secretary, Ministry of Justice, Law and Parliamentary Affairs, Islamabad PLD 1994 SC 607; Liaqat Ali v. District Collector, Gujrat and 4 others 2022 MLD 1195; Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others PLD 2014 FSC 43; Abdul Rahim v. Mst. Shahida Khan PLD 1984 SC 329; Imran Anwar Khan and others v. Province of the Punjab through Secretary Ministry of Law, Lahore and others PLD 2022 FSC 25; Mst. Fazeelat Jan and others v. Sikandar through his Legal Heirs and others PLD 2003 SC 475; Hammad Hussain v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and another PLD 2022 FSC 21; Sohail Ahmed v. Mst. Samreena Rasheed Memon and another 2024 SCMR 634; Amanat Ali v. Mst. Nadia Shaukat PLD 2019 Lah. 160 and Khurram Shehzad v. Federation of Pakistan through Ministry of Law and Justice Commission of Pakistan, Islamabad and another PLD 2023 FSC 286 rel.
Ms. Afshan Ghazanfar for Petitioner.
Muhammad Sajid Ilyas Bhatti, Additional Attorney General for Pakistan for Respondents Nos.1 and 2.
Khalid Ishaq, Advocate General, Punjab for Respondent No.3.
Imran Shaukat Rao and Muhammad Shahid Munir, Assistant Advocate Generals, Punjab.
Father of Respondent No.4 in person.
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