2017 C L C 1170
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ
NAEEM SHER TAREEN ----Petitioner
Versus
BEENISH ALI and 4 others ----Respondents
C.P. No.951 of 2016, decided on 14th March, 2017.
Family Courts Act (XXXV of 1964) ---
----S. 10(4) & Schd. S.5 ---Constitution of Pakistan, Arts.199, 203 -D & 203 -G---Constitutional
petition ---Repugnancy to Injunctions of Islam ---Scope ---Dissolution of marriage ---Petitioner
challenged the validity of S.10(4) of the Family Courts Act, 1964 and impleaded the Parliament --
-Validity ---Government, through Secretary concerned, was relevant if some legislation was in
question ---Vires of legislation could be subject to judicial review by Superior Courts, but such
power was subject to jurisdiction as co nferred by the Constitution ---In the present case,
petitioner had questioned S.10(4) of the Family Courts Act, 1964 alleging the same to be
contrary to the Injunctions of Islam ---Petitioner missed relevant provisions of the Constitution
which specifically placed bar on the jurisdiction of High Court in such matter ---Article 203G of
the Constitution placed a bar on jurisdiction of any court, including Supreme Court or High
Court, to entertain any proceedings or exercise any power or jurisdiction in respect o f any matter
lying within the power or jurisdiction of the Federal Shariat Court ---Article 203D of the
Constitution dealt with the powers and jurisdiction vested with the Federal Shariat Court ---Power
to examine and decide the question whether or not any l aw or provision of law was repugnant to
Injunctions of Islam or Holy Quran or Sunnah were included in Art.203 -D of the Constitution ---
High Court lacked jurisdiction in the matter ---Constitutional petition was dismissed accordingly.
Surat Khan Khethran fo r Petitioner.
Nemo for Respondents.
Date of hearing: 21st November, 2016.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. --- The petition was filed with the facts that the
respondent No.1, his wife, without his permission and in exercise of her fee will left his hou se
along with their minor daughter leaving behind two sons, and proceeded to Islamabad, where she
approached the Family Court for an order to dissolve her marriage on the basis of Khula. The
petitioner sought transfer of the case from the files of Family J udge, Islamabad to Quetta. In
addition questioned Section 10(4) of the Family Courts Act, 1964. The petition was with the
prayer:
"that this Hon'ble Court may kindly be pleased to declare the impugned amendment dated
01.10.2002 added through Ordinance LV o f 2002 in the section 10(4) of West Pakistan
Family Courts Act, 1964, as illegal, ultra vires, contrary to the requirement of
Constitution as well as beyond from the scope of Sharia and Islam.
Further respectfully prayed, that this Hon'ble Court may kindly be pleased to restrain the
Family Courts from application of proviso provided in section 10(4) of West Pakistan
Family Courts Act, being ultra vires.
Further, this Hon'ble Court may kindly be pleased to issue direction to respondents Nos.2
to 4 to make en actments of laws in accordance with Constitution, Sharia and Islam.
Further, this Hon'ble court may kindly be pleased to direct all the Family Courts, to
consider cases of dissolution of marriage only within scope of Dissolution of Muslim
Marriages Act, 19 39 and grounds there under.
Further, this Hon'ble Court may kindly be pleased to direct transfer of Family case
pending before the Family Judge, Islamabad titled "Beenish Ali v. Naeem Sher Tareen"
here at Quetta, with any other relief which this Hon'ble co urt deems fit and proper may
also be granted, in the interest of justice."
2. There was an objection on maintainability of the instant petition by the office, but the
learned counsel before addressing the objection, filed an application (CMA No.2374 of 201 6)
with a prayer to implead the Law and Justice Division Islamabad as respondent No.6.
3. The learned counsel for the petitioner pressed maintainability of the instant petition while
contending that the referred to provision of the Family Courts Act, 1964, was against the
mandate of Islam, thus to be amended as required by the Constitution that there shall be no law
against the injunctions of Islam.
4. The plain reading of the instant petition reveals that the petitioner in fact aggrieved of
filing of a fam ily suit by respondent No.1 for the purpose to dissolve the marriage tie between
her and the petitioner by pressing her right of Khula. The case was pending before the Family
Court at Islamabad and the petitioner sought transfer of the case from Islamabad to Quetta
through the instant petition. Instead of seeking the relief he challenged the validity of the law,
thus apart from his wife Beenish Ali, President of Pakistan, National Assembly and Senate of
Pakistan were placed in the list of respondents. The l earned counsel was asked that whether the
President of Pakistan was a proper party in presence of Article 248 of the Constitution, and
whether National Assembly and Senate of Pakistan are the legal persons and could be placed into
list of respondents? He w as further asked to address whether a writ could be issued against them
in terms as prayed? It was his reply that the power to make law and to amend it surely lies with
the ambit of National Assembly and Senate of Pakistan and promulgated with the assent o f the
President, thus they were the necessary parties and were impleaded properly.
5. The learned counsel was under some misconception. It might be the relevant Government
through Secretary concerned if some legislation is in question. In addition it is a settled law that
the vires of legislation are subject to judicial review by Superior Courts, but this power is subject
to the jurisdiction as conferred by the Constitution. In the case in hand the petitioner basically
questioned Section 10 subsection (4) o f the Family Courts Act, 1964 while holding it contrary to
the injunctions of Islam. The remaining reliefs are dependent on result thereof. The learned
counsel missed the relevant provisions of the Constitution which specifically placed a bar on
jurisdicti on of a High Court in the matter. Article 203G of the Constitution placed a bar on
jurisdiction of any court, including Supreme Court or High Court, to entertain any proceedings or
exercise any power or jurisdiction in respect of any matter lies within the power or jurisdiction of
the Federal Shariat Court. While Article 203D of the Constitution deals with the powers and the
jurisdiction vests with the Federal Shariat Court. The power to examine and decide the question
whether or not any law or provision of law is repugnant to injunction of Islam or Holy Quran or
Sunnah included in the referred to Article. In view of this specific provision this court lacks
jurisdiction in the matter.
As far the request for transfer of suit from Islamabad to Quetta, the onl y object behind
filing of the instant petition, is concerned, the court concerned working beyond the territorial
jurisdiction of this Court, thus there could be no order to this extent also.
The petition is dismissed for the reasons.
MQ/42/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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