Law: Family Courts Act, 1964

Section: 10,proviso

Law: Constitution of Pakistan, 1973

Section: 199

(a) West Pakistan Family Courts Act (XXXV of 1964)--- ----S. 10, proviso---Constitution of Pakistan, Art.199---Constitutional petition---Pre-trial proceedings---Suit for dissolution of marriage on basis of Khula'---Petitioner impugned S.10 and proviso thereto, of the West Pakistan Family Courts Act, 1964 on the ground that the same was against Injunctions of Islam---Contention of the petitioner was inter alia that Khula' could not be granted at the initial stage of the proceedings; that the proviso to S.10 overrode the main section, and that there was ambiguity in S.10 of the Act with regard to pre-trial and post-trial reconciliation---Validity---Proviso contained in S.10 of the West Pakistan Family Courts Act, 1964 empowered the Family Court to pass a decree for dissolution of marriage forthwith upon failure of reconciliation and further provided that the wife shall be ordered to return the Haq Mahr received by her---Muslim woman had been given the right in Islam to get herself released from the bond of marriage if she felt, due to any reasons, that she could not live with her husband within the limits prescribed by Allah and in such an event she had the right to seek "Khula" by foregoing the Haq Mehr received by her---Wife could also pronounce Talaq to herself on behalf of the husband, provided such right and authority had been given to her by the husband at the time of the Nikkah, and Khula' could be granted only by the Family Court having jurisdiction in the matter---High Court held that there was nothing in the proviso to S.10 of the West Pakistan Family Courts Act, 1964 that was contrary to the Injunctions of Islam, and also that proviso did not have an overriding effect but in fact supported and complemented S.10---Decree for dissolution of marriage was passed under S.10 either when the defendant/husband did not file his written statement and there was no pre-trial hearing, or when the reconciliation failed at the pre-trial stage, and also after the filing of written statement, consideration of pleadings, framing of issues and recording of evidence---No ambiguity, therefore, existed in S.10 of the Act with regard to pre-trial and post-trial…

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