KANEEZ FATIMA CASE

  

 KANEEZ FATIMA CASE

 

 Citation: (PLD 1993 SC 901)

 

Parties:

KANEEZ FATIMA : (Appellant)

WALI MUHAMMAD and others: ( Respondents )

 

Status: Appeal Dismissed.

 

Facts & Figures:

Ø In  Kaneez  Fatima  the  husband  and  wife  agreed  to  mutually  dissolve  their  marriage with effect from 1-11-1977 and the wife received rupees 10,000 and five tolas (one tola is equal to 12 grams) of gold in lieu of the prompt dower of rupees 30,000 and 20 tolas of gold and a monthly maintenance of rupees 200. Both the parties agreed that they will  have  no  further  claim  in  future  against  each  other.  However,  on  6-4-1978  the appellant  filed  a  suit  for  recovery  of  the  remaining  amount  of  dower  (i.e.  rupees 20,000) and maintenance in Family Court pleading that the compromise was arrived at due to coercion and no notice of dissolution of marriage was given to the Chairman as provided by section 7 of the MFLO, 1961. It was held that “In case where with the consent  of  both  the  parties  divorce  is  effected  and  confirmed  in  writing  under  their undisputed  signatures,  section 7 should not be strictly construed.”  The Court opined that  “the  notice  can  be  sent  at  any  time  thereafter  to  comply  with  the  provisions  of section  7.”The  Court  refused  maintenance  to  the  appellant.

Ø Aggrieved by this judgment the appellant filed a Constitution petition in the High Court. By the impugned judgment the petition was dismissed.

Ø The appellant (KANEEZ FATIMA) then challenged the decision of Lahore high court in supreme court stating that the provisions of  MFLO are in contravention to the injunctions of Islam.

 

 

Juristic Point:

In Kaneez Fatima case, the question was whether the provisions of section 7 of the Muslim Family Law Ordinance 1961, were repugnant to the injunctions of Islam and whether the High Court or the Supreme Court has jurisdiction to strike down any law which is inconsistent with Article 2A in so far as it is held to be in contravention of the injunctions of Islam.

 

Helding and judgement:

A unanimous 5-judge bench after relying on the ratio decidendi of Hakim Khan case and after considering the provisions of Articles 227,203 of the constitution agreed that court cannot strike down any law which is inconsistent with Article 2A.

 

The position was summed up as follows:

The provisions of section 7 of the Ordinance have remained controversial from the very beginning and there are conflicting views in general about it. In view of  the Constitutional restraints the Courts cannot give any verdict on the conflicting claims challenging or justifying the provisions of section 7 of the Ordinance. However, keeping in view the facts of each case the. applicability and interpretation of section 7 has to be construed in that light. In a case where with the consent of both the parties divorce is effected and confirmed in writing under their  undisputed signatures section 7 should not be strictly construed particularly in cases where penal provision of section 7(2) is to be enforced because in such cases the parties do not wilfully commit breach and bona fide believe that they have been divorced with the consent of each other and sending of notice to the Chairman, Union Council, is merely a formality. The notice can be sent at any time thereafter to comply with the provisions of section 7. Where such view has been taken but its validity has been challenged the Court would be justified to refuse to issue writ and exercise its jurisdiction.

We, therefore, dismiss the appeal, but completely on different grounds.