Nadeem Siddiqui versus Islamic Republic of Pakistan

IN THE FEDERAL SHARIAT COURT

(Original Jurisdiction)

PRESENT

MR. JUSTICE DR. ALLAMA FIDA MUHAMMAD KHAN,

MR.JUSTICE SHEIKH NAJAM UL HASAN V

MR.JUSTICE ZAHOOR AHMED SHAHWANI

SHARIAT PETITION NO. 05/L OF 2013

N a d e e m S id d iq u i R/o 4-Mozang Road, Lahore Petitioner

Versus

Islamic Republic of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad.

Respondent

Counsel for the petitioner Ch. Bashir Hussain Khalid, Advocate

Date of Institution 01.10.2013

Date of hearing 16.04.2015

Date o f decision 16.04.2015

-o-

JUPGMENT:

ALLAMA DR.FIDA MUHAMMAD KHAN. Judge.- The

learned counsel fo r the petitioner has challenged Section 5 o f the West Pakistan Family Court's Act, 1964 (hereinafter called the said Act) on the grounds th a t it is against the injunctions o f Islam. The impugned section reads as under:-

"Subject to the provisions o f the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule".

2.We have heard the learned counsel fo r the petitioner. Placing reliance on several Verses o f the Holy Quran pertaining to Divorce, and Verse No.35 o f Surah Al-Nisa, he contended th a t the impugned section empowers the Family Court to entertain, hear and adjudicate upon matters specified in the schedule. The schedule, inter-alia, includes "Restitution o f conjugal rights" as well. The learned counsel vehemently contended th a t the Family Court cannot issue decree in matters o f restitution o f conjugal rights nor can force an un-willing

wife to live w ith her husband against her wishes. The learned counsel dw elt at large on the need fo r efforts o f reconciliation between the spouses who have developed differences and, as a result thereof, the wife has left the house o f her husband and started living elsewhere, w ith her parents etc. During the course of arguments, the learned counsel conceded that in case she is living separately from the husband on account o f strained relations, she may not be entitled to claim maintenance expenses from her husband.

3.We have thoroughly considered the contentions o f learned counsel and have duly appreciated these in the light o f Verse No.35 o f Surah Al-Nisa, which reads as under:-

"And if you fear a breach between the tw o (husband and wife) then appoint an arbitrator from his people and an arbitrator from her people. If they both desire peace Allah w ill make them of one mind. Certainly Allah knows all, Aware about all things".

A bare perusal o f the above Verse makes it quite clear that re­ conciliation efforts have been emphasized to effect compromise

between the spouses, if their relations are strained. It has also been assured that if both the parties sincerely desire to patch up and ready to bury their hatchets, Almighty Allah w ill bless them w ith harmony and grant them a peaceful life. The Holy Quran has further emphasized th a t in any case, re-conciliation is fa r better.

4.It is significant to note that the said Act has already provided fo r compromise or re-condliation a t pre-trial and post tria l stages and th a t is definitely according to the Injunctions o f Islam. However, in case, the compromise o r re-condliation fails and does not appear to be possible, then the course to be adopted by the Family Courts to settle th e m atter has also been mentioned in the said Act.

5.It w ill be appreciated th a t the Courts are constituted to resolve the conflicts and settle the disputes which crop up between various individuals including the spouses, from tim e to tim e. The Courts are bound by the Constitution as w ell as by the Injunctions of Islam to observe and administer justice between the litigants/individuals in all

Shariat Petition No.S/L/2013 O

circumstances. In case o f the spouses, the jurisdiction to resolve their differences has been granted to the Family Courts. On a Court question, as to how long the Court should w ait fo r passing an order in favour o f one or the other party, the learned counsel was o f the opinion that the fam ily Court can not pass order fo r restitution of conjugal rights . The learned counsel, however, could not cite any Verse or Hadith to support his contention. Obviously, the stance taken by the learned counsel is neither logical nor judicious.

6.The w ife is not entitled to the maintenance, according to him, when she is not performing conjugal relations and is living separately and that too fo r some long indefinite period. This state o f affairs would certainly am ount to grave injustice and especially so if she has no independent appropriate source o f income. On the other hand, both the husband and the w ife would suffer and experience mental agony in case they have some offspring from their wed-lock. One or the other party would definitely suffer to obtain or maintain their custody. Moreover, the Courts are required to settle the disputes in one way or another. If the wife does not feel comfortable w ith her husband or vice versa, the best course fo r either o f them would be to go for dissolution of their marriage by way o f "Khula" or "Divorce".

Shariat Petition No.S/L/2013

ln case both are young, it might also lead to so many psychological, social and moral evils, also.

7.The learned counsel could not satisfy the Court as to how the impugned section which authorizes the family courts to Issue decree fo r restitution o f conjugal rights, is repugnant to Injunctions of Islam.

As mentioned above, he could cite no specific Verse or Hadith which puts embargo on the Family Court and restrain it from passing an order fo r restitution o f conjugal rights if the w ife is not ready for dissolution o f marriage on the basis o f Khula.

8.In view o f the above, the instant Shariat Petition having been mis-conceived, is dismissed, accordingly.

MR.JUSTICE ALLAMA DR.FIDA MUHAMMAD KHAN

su J.

MR.JUSTICE fSHEIKH t NAJAM UL HASAN

MR.JUSTICE ZAHOOR AHMED SHAHWANI

Dated Lahore the 16th A p ril.2015.

Mubashar*