PLJ 2017 Quetta 58 (DB)
Present : MRS. SYEDA TAHIRA SAFDAR AND SYED ANWAR AFTAB JJ.
NAEEM SHER TAREEN --Petitioner
versus
BEENISH ALI and others --Respondents
C.P. No. 951 of 2016, decided on 14.3.2017.
Family Courts Act, 1964 (XXXV of 1964) --
----S. 10(4) --Constitution of Pakistan, 1973, Art. 199 & 203- A--Constitutional petition --Transfer
family suit Family Court --Respondent approached the Family Court for an order to dissolve her
marriage on the basis of khula --The petitioner sought transfer of the c ase from the files of Family
Judge, Islamabad to Quetta --Bar on jurisdiction of any Court including Supreme Court or High
Court to entertain any proceeding or exercise any power or jurisdiction in respect of any matter
lies within power of jurisdiction of Federal Shariat Court --Petition was dismissed.
[Pp. 58 & 60] A, B & C
Mr. Surat Khan Khethran, Advocate for Petitioner.
Date of hearing: 21.11.2016.
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 free will left his house 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 Judge, 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 of ,2002 in the Section 10(4) of West
Pakistan Family Courts Act, 1964, as illegal, ultra varies , contrary to the requirement of
Constitution as well as beyond from the scope of Sha ria 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 varies .
Further, this Hon’ble Cour t may kindly be pleased to issue direction to Respondents No.
2 to 4 to make enactments 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 Marriage Act, 1939 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 tilted “Beenish Ali vs. Naeem Sher Tareen”
here at Quetta, with any other relief which this Hon’ble Court 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 2016) 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 whi le
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 family 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, Nati onal Assembly and Senate of Pakistan were
placed in the list of respondents. The learned 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 was 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 of 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 sub-section (4) of 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 jurisdiction of a High Court in the matter. Article 203 -G of the Constitution placed a bar on jurisdiction of any Court,
including Supreme Court or High Court, to entert ain 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 203- D 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 jur isdiction
in the matter.
As far the request for transfer of suit from Islamabad to Quetta, the only 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.
(N.K.) Petition dismissedThis 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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