Yasir Manzoor Amin Vs Dr. Mehreen Iqbal and others

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JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No.3788-Pl20l8 with CM No.5912022 with CM No.204212019

Yasir Manzoor Amin Vs Dr. Mehreen Iqbal and others

JUDGMENT

Date of hearing: 20.05.2024

Petitioner(by): Mr.Inayat-ur-Rehman.Advocate Resoondents fty): N,I/SMuhammad Avaz and Shamsul haq. Advocates

SYED ARSHAD ALI. J.- Yasir Manzoor Amin, the petitioner has filed the instant Constitutional Petition praying that:

"It is, therefore, most humbly prayed that on the acceptance of this writ petition the order, judgment and decree dated 23.09.2017 may kindly be set aside to the extent that it is impugned, to the effect that:

i. The mode of dissolution of marriage may very kindly be converted into khula.

ii. The 50 tolas of gold paid to the respondent No.l may very kindly be restored to the petitioner.

iii. fne decree for the dower may also be set aside."

/) 2. Brief but relevant facts of the case are that Mst' 4 Mehreen Iqbal, the ptaintifflrespondent filed a suit before the learned Judge Family court-Il, Peshawar against the defendant/petitioner seeking a decree for dissolution of marriage, recovery of t0 tola gold omament, Rs.500,000/- cash, a house No.231, Sector N-l, Phase- IV, Hayatabad, Peshawar and maintenance allowance'

v on being noticed, the suit was contested by the petitioner by filing written statement wherein various legal and factual objections were raised. Thereafter, issues were framed and accordingly, evidence of the parties was recorded. At the conclusion of trial, suit of the plaintifflrespondent was decreed vide judgment/decree dated 23.09.2017 in the following manner:- "As sequel to my issue wise findings, the suit of the plaintffi against the defendants stands partially decree. Plaintiff No.I is held entitled for dissolutio,n of marriage and the marriage between the platntiff No.l and the defendant stands dissolved under Section 2[(ii-A)] of Dissolution of Muslims Marriages Act, 1939. Iddat period of plaintiffNo.l starts from today. She is further allow to get Rs.500,000/- and 5 marlas constructed house at Hayatabad, Peshawar or its market value in lieu of dower. She ls also entitled to recovery of maintenonce allowance @ Rs.15,000/- per month since the date of second maruiage of the defendant till her lddat period. Plaintiff No.2,3,4 and 5 are allowed to get maintenance allowance @ Rs.40,000/- per month w.e.f today till attaining the age of majority of male children and marriage of female children. Plaintiff No.I is also allowed for recovery of her dowry articles according to the list annexed with the written statement. The rest of the cloims of the plaintiffs stands dismissed. The claim of the defendant also stands dismissed. The visitation order already passed vide order dated 04/05/2015 shall continue. However, defendant shall meet the minors once every week as per schedule decided by both the parties."

3.Arguments heard and record of the case was perused.

4.The only question which has been raised by the 4 petitioner; in the present petition for adjudication of this Court is, "whether the second marriage of the petitioner in the manner other than as provided under the Muslim Family Law Ordinance, 1961 would entitle the first wife

for dissolution of marriage". In support of his arguments, the learned counsel for the petitioner has relied upon the judgment of this Court passed in the case of ,,Sved Arthod Ali Shoh ut. Mtt. Holrr*o Bibi ond 2 oth"rr, (PLD 2014 Peshawar 226)

5.I have minutely read the judgment passed by this court, wherein it is hetd that section 2(ii-a) was inserted as an additional ground for dissolution of marriage in the Dissolution of Muslim Marriages Act, lg39 (,.Act of 1939"), through the Muslim Family Laws Ordinance, 1961 (Ordinance VIII of 1961), published in the Gazette of Pakistan, Extraordinary, dated March Z, 1961, however, the Ordinance VIII of 196l was repealed through Federal Laws (Revision and Declaration) Ordinance, 1981 (Ordinance XXVII of 1981), therefore, is no more available on the Statute Book, hence the marriage of a Muslim woman cannot be dissolved on such ground. The relevant para of the judgment reads as under:

ooTherefore, to resolve this proposition, we shall have to revert to Section z(ii-a) of the Dissolution of Muslim Marriages Act 1939 which postulates 1't' that a Muslim woman shall be entitled to obtain a decree for dissolution of her marriage if her husband has taken additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961. The decree in favour of plaintiff, purportedly, has been passed by pressing into service ibid clause of the Act. This clause was added through Section 13 of the Muslim Family Laws Ordinance, 1961 (Ordinance VIII of 1961) on

the recommendation of the Commission on Marriages and Family Laws. However, the same was omitted vide Item No.lg of Second Schedule of Federal Laws (Revision and Declaration) Ordinance, l98l (Ordinance XXVII of l9g1). This Ordinance was later on validated by substitution of Article 270A of the Constitution of Islamic Republic of Pakistan, 1973 vide 8th Amendment Act 1985. In view of this legal position, Clause (ii_ a) of Section 2 of the Dissolution of Muslim Marriages Act, 1939 has no longer remained part of the Statute since 1981. In consequence whereof taking of second wife in marriage, in presence of the first wife, even without permission or consent of the first wife, is no more a valid legal ground for dissolution of mariage. Pursuant to this legal position, the findings of both the courts below of awarding the decree for dissolution of marriage on the ground of second mariage of husband and consequential decree for recovery of dower and maintenance are unwarranted, illegal and nullity in the eye of law."

6, I have perused both the Ordinance VIII of 1961 and Ordinance XXVII of 1981, no doubt through Item No.18 of the Second Schedule to the Ordinance XXVII of 1981, the Ordinance VIII of 1961 was omitted but the attention of this Court was not brought to the savings clause i.e. sectionT of the Ordinance XXVII of 1981. It appears from the language of section 7 ibid that the object of the repealing Ordinance XXVI of 1981 was only to get rid of a spent up law, meaning thereby when the amendment brought through the Ordinance VIII of 4 1961 in the main statute, then the effect of repeal would not harm the insertion of section 2(ii-a) in the Act of 1939. In order to appreciate this legal proposition, let's reproduce all the relevant laws.

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13.Amendment of the Dissolution of Muslim Marriages Act, 1939 (ItIII of 1939).- In the Dissolution of Muslim Marriages Act,1939 (VIII of t939), in section2,-

(a)after clause (ii), the following new clause (iia) shall be inserted namely:- "(iia) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, l96l;"; and

(b)in clause (vii), for the word "fifteen,, the word 'osixteen" shall be substituted.

Ordinance XXVII of 1981

Preamble

Whereas it is expedient that certain laws, which are spent or have otherwise become unnecessary or have ceased to be in force otherwise than by express or specific repeal, should be expressly and specifically so repealed;

And whereas it is also expedient that certain amendments should be made in certain laws;

And whereas it is also expedient that certain declarations should be made in regard to certain laws;

And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action;

Now, therefore, in exercise of the powers conferred by Article 89 of the Constitution, read with Article 2 of the Provisional Constitution Order, l98l (C.M.L.A. Order No.l of 1981), the President is pleased to make and promulgate the following Ordinance:-

Sections 2. 3 and 7 of the Ordinance XXVII of

2.Repeal of certain laws.- The laws specified in the First Schedule are hereby wholly repealed.

3.Amendment of certain laws.- The laws specified in the Second Schedule are hereby amended to the extent and in the manner specified a' in the fourth column thereof.

7.Savings.- The repeal by this Ordinance of any law shall not affect-

(a)the previous operation of any law so repealed or the validity, invalidity, effect or consequences of anything duly done or suffered thereunder; or

(b)any right, title, privilege, obligation or liability acquired, accrued or incurred thereunder or any release or discharge already granted ofor from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing; or

(c)any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or

(d)any investigation, legal proceeding or remedy in respect of any such right, title, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Ordinance had not been promulgated.

Nor shall the repeal of any law by which the text of any law (including the Constitution and any Martial Law Regulation) was amended by the express omission, insertion or substitution of any matter, affect the continuance of any such amendment unless a different intention was expressly stated in the law by which the amendment was made.

Item No.18 of Second Schedule to the Ordinance XXVII of 1981

18.The Muslim Family Laws Ordinance, VIII of 1961.

Sections 12 and 13 shall be omitted.

Section 6-A of the General Clauses Act. 1897 6-A. Repeal of Act making textual amendment in Act or Regulation. Where any Central Act or Regulation made after the cornmencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then unless a different intention appears, the repeal shall not affect the continuance of any such 4 amendment made by the enactment so repealed and in operation at the time of such repeal.

7.The plain reading of section 7 of the Ordinance XXVII of 1981 and section 6-,4. of the General Clauses Act, 1897 would in clear terms suggest that when an amending act, whereby the text of Central Act or

Regulation was amended, is repealed, then unless a different intention appears, the repeal is not to affect the continuance of any such amendment made by them (amending enactment) so repealed. In other words, the effect of above section 6-4 is, the amendment if it was in the text of any Act or Regulation was to continue notwithstanding the repeal of the amending ActlOrdinance.

8.A similar issue regarding the repeal of Evacuee Law regarding the jurisdiction of an evacuee officer after the repeal of the said law came up for consideration before the two Member Bench of West Pakistan Karachi High Court reported as "Abdul Maiid vs. The Custodian of Evocuee West Pakistan and others" (PLD 1962 (W.P) Karachi 300. while deliberating upon the effect of such repeal in terms of 6-,4. of the General Clauses Act, the Court had observed.

12.The plain effect of section 6-4. of the General Clauses Act is that the repeal of an amending Act does not affect the continuance of the amendment which, in fact, becomes a part and parcel of the main Act. If such is the intention it would have to be either expressly stated as it was indeed done in * the case of subsection (2) of section 1 of the Ordinance of 1959 or there must appear clearly a different intention. In the present case there is no express provision, and we are clearly of the view that a different intention does not appear.

13.The words of section 6-,4, of the General Clauses Act are so clear that no case law is required to appreciate its meaning. We may however note a

case reported in Shree Gopal paper Mills Ltd. v. Ram Labhaya Mal and others (A I R 1960 pb. 375). In that case it was urged that since section 33 of the Industrial Disputes Act was amended by virtue of the Industrial Disputes Act XLVIII of 1950 and that Act was itself repealed by the Industrial Disputes Amendment Act of 1956, the earlier amendment ceased to exist and the law, therefore, stood as it was before the amendment. This contention was repelled and it was held that the repeal of an amending Act does not have the effect of destroying the amendment.

9.Likewise, section 249-A was inserted by the Code of Criminal Procedure (Amendment) Ordinance (XXXVI of 1977). The said Ordinance was also repealed by the Ordinance XXVII of 1981. The question arose before the Lahore High Court in case of "Ch. Sami vs. The Stote" 0,984 PCT.LJ 1486) that since section 249-A, Cr.P.C was omitted by the Ordinance XXVII of 1981, therefore, was no more available on the Statute Book.

The Lahore High Court, while repelling the said contention, has held:

9.undoubtedly the observation of the learned Magistrate that after the repeal of Ordinance No.XXVII of 1981, section 249-A, Cr.P.C stood omitted is fallacious on the face of it. Ordinance No.XXVII of 1981, was an amending Ordinance and by the said Ordinance, section 249-A, Cr.P.C. was inter alia inserted in the Code of Criminal 4 Procedure.

10.It is an established proposition of law which has a statutory sanction behind by virtue of section 6 of the General Clauses Act, that the moment an amending Ordinance is enforced, the amendments brought about by it take effect in the principal enactment and such amending Ordinance thereafter becomes a spent up law. Its subsequent repeal does not affect the previous operation of such an enactment. Object of repeal of an amending

Ordinance is to get rid of a spent up (obsolete law) and its repeal cannot take away the effect as already created. Thus, section 249-A.I Cr.p.C. cannot be considered to have been omitted on account of repeal of the Ordinance No. XXVII of 1981.

A similar view regarding the insertion of section 249-A, Cr.P.C was also held by the Karachi High Court in the case of c6Dr. Shokoor vs. The State" (198s PCT.LJ 2477\. In the case of ,,Abdul Maiid etc. vs.

Shahzado Asif Jan etc." (PLD 1982 Suoreme Court 82), the issue before the Apex Court was the effect of repeal of section 2 of the West Pakistan Repealing Ordinance, 1970, through repealing enactment specified in its schedule in N.W.F.P Pre-emption (West Pakistan Amendment) Act (VI of 1967). On the effect of such repeal, the Apex Court had observed:

ooThe main object of the Repealing Acts and Ordinances, it may be pointed out, is only to strike out the unnecessary enactments and excise dead matter from the Statute Book in order to lighten the burden of ever-increasing spate of legislation and to remove confusion from the public mind. They are not intended to make any change in the law; their aim being legislative spring-cleaning. The above reproduced section 3 is, therefore, designed to save the operation, force and validity of the amendments akeady made in the principal enactments by the fr amending enactments mentioned in the Schedule to the West Pakistan Repealing Ordinance, 1970."

10.Section 5a(c) was inserted by Electricity (Amendment) Ordinance (LKI of 1979). Federal Laws (Revision and Declaration) Ordinance ()O(VII of 1981) has repealed the Ordinance LXII of 1979. Therefore, the

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question arose before this court in the case of ,rshakeel ys. WAPDA and others" (PLD 1994

Peshawar 192) that section 54(c) which was inserted through Ordinance LXII of 1979 was repealed by ordinance XXVII of 1981 was no more available on the Statute. The said assertion was repelled by this court in the following manner:

"A poru3hl of the aforesaid rulings is indicative of the fact that a rcpeal like the one in hand does not affect the continuance of any such amendment unless a different intention was expressly stated in the law by which the amendment was made. This factum is clearly explained in the last paragraph of section 7 of the Federal Laws (Revision and Declaration) Ordinance, 1981. As the amending Ordinance LXII of 1979 does not carry any direction to the desired effect, therefore, such amendment would have a continued effect despite its subsequent repeal."

The same opinion was also expressed by various High Courts in the cases of "Muhammad Afzal Khan vs.

Excise & Officer and 2 others" (PLD 1984 Peshawar 21 "S.M Asim. In the Motter of Petition under Section 276 of the Succession Act. 1925 for Probate of the will of Late r. S.M. Asim s/o Late Mr.

S.M. Ossim" (PLD 1994 Karachi 173\. "Lal Bakhsh vs. The State" (PLD 2004 Karachi 532\. 4' 11. The crux of the aforesaid discussion would be that when section 2(ii-a) was inserted through Ordinance VIII of 1961 then the repeal of Ordinance XXVII of 1981 has caused no harm or has not affected the operation of

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section z(ii-a) ibid when it has already become part of the Statute Book. Repeal of such Act is an exercise synonymous with spring-cleaning dead leaves. Such exercise is taken by the legislature periodically.

Therefore, section z(ii-a) of the Act of l93g is still part of the Statute and is a valid ground for a wife to seek dissolution of marriage.

12.In'view of the above, this petition is dismissed. The parties are to bear their own costs for the obvious reason that the interpretation of a complicated question of law was involved.

#'t

JUDGE

Date of hearing and announcement ofjudgment ...20.05.2024 Date of preparation and signing of Judgment .......10.08.2024

S.B Hon'ble Mr. Justice Syed Arshad Ali

Mahmood Shah, SSS