Law: Muslim Family Laws Ordinance, 1961

Section: 7, 8

  (a) Muslim Family Laws Ordinance (VIII of 1961), Ss. 7 & 8 read with Dissolution of Muslim Marriages Act (VIII of 1939), S. 2 (vii)-Khiar-ul-Baloogh---Declaratory suit filed on basis of Khiar-ul-Baloogh---Essentially a suit for "dissolution of marriage" was envisaged by S. 8, Muslim Family Laws Ordinance, 1961 Juris diction of civil Courts not barred-Suit instituted prior to promul gation of Family Courts Act, 1964, held, competent in civil Court. The expression "wishes to dissolve the marriage otherwise than by talaq" as occurring in section 8 of the Muslim Family Laws Ordinance, 1961 is in full accord with the phraseology ,employed in section 2 of the Dissolution of Muslim Marriages Act of 1939. Ground (vii) of section 2 of the Dissolution of the Muslim Marriages Act, 1939 relates to repudiation of marriage in exercise of the option of puberty. From this a could be reasonably inferred that notwithstanding the declaratory form of the suit, filed on the basis of Khiar-ul-Baloogh, it amounts in effect to seeking a decree for dissolution of marriage and the date of its being operative or effectual would be immaterial. Further support would be lent to this view by the conferment of exclusive jurisdiction on Family Courts constituted under Act XXXV of 1964 to try inter alia suits for dissolution of marriage. A suit based on the ground of Khiar-ul-Baloogh is essentially one for dissolution of marriage and it cannot be argued with any modicum of reasonableness that the heading "dissolution .of marriage" excludes a declaratory suit for dissolution of marriage based on exercise of option of puberty. The expression used in section 8 also envisages a suit of the latter category. Section 21 of the Family Courts Act, 1964 resolves the conflict between section 8 of the Muslim Family Laws Ordinance, 1961 and section 5 of the Family Courts Act o n points of jurisdiction and procedure. There is nothing to indicate in the Muslim Family Laws Ordinance which could be construed as amounting to an ouster of the jurisdiction of civil Courts. It was not till the 18th of July 1964, when the West Pakistan Family Courts Act, 1964 hereinafter…