-Decree for dissolution of marriage was granted to wife by Family Court on ground of impotency of husband on only evidence furnished by Lady Doctor to the effect that hymen of the wife being intact, she was a virgin--

1998 M L D 1216

Dissolution of Muslim Marriages Act (VII of 1939)---

----S. 2(v), proviso (c)---Dissolution of marriage on ground of impotency of husband---Decree for dissolution of marriage was granted to wife by Family Court on ground of impotency of husband on only evidence furnished by Lady Doctor to the effect that hymen of the wife being intact, she was a virgin-- According to settled medical and scientific phenomenon, factum of hymen being intact, was not a conclusive proof of virginity, because hymen in certain cases is so flexible that it is not ruptured and at times was ruptured by incidence of first delivery---Evidence on record indicated that husband and wife had tried to produce their own medical certificates by consulting Doctors themselves, but Court had not referred same for examination which had shown touch of personal involvement of Court---Better approach would have been to get the parties medically examined through Court---Application filed by husband under proviso (c) of S. 2(v) of Dissolution of Muslim Marriages Act, 1939, was also not considered by Family Court before passing decree for dissolution of marriage on ground of impotency of husband-- Family Court had acted without jurisdiction and also had exercised jurisdiction not vested in it as Family Court could not pass decree for dissolution of marriage on the ground of impotency of husband, unless, on application of husband, he was required to satisfy the Court within one yeas from the date of such order that he had ceased to be impotent---If husband so satisfies the Court within such period qua the same woman involved, no decree for dissolution of marriage would be passed on ground of impotency---Judgment of Family Court was set aside and case was remanded to be decided afresh after complying with provisions of proviso (e) of S. 2(v) of Dissolution of Muslim Marriages Act, 1939.

Qazi Badar-ul-Islam for Petitioner.

Sher Muhammad Khan Tanoli for Respondents.

Date of hearing: 11th February, 1998.

 TAJ DIN VS KARIM BUKHSHRT
1998 M L D 1216
[Peshawar]
Before Sardar Muhammad Raza and Tariq Pervez. JJ
ABDULLAH---Petitioner
versus
Mst. SHAHEEN and 2 others---Respondents
Writ Petition No. 151 of 1997, decided on 11/02/1998.

JUDGMENT

SARDAR MUHAMMAD RAZA, J.---Abdullah S/o Sher Zaman has ,called into question, under Article 199 of the Constitution, the judgment dated 28-11-1998 passed by Judge Family Court Mansehra; whereby, a decree for dissolution of marriage stands granted to Mst. Shaheen, the wife of Abdullah on the material ground, inter alia, of impotency.

2. Without referring to the minor or major details of evidence on record we are convinced at the very outset that the learned Judge Family Court had acted without jurisdiction and also has exercised the jurisdiction not vested m her. She had failed to apply the law in its true sense.

3. A decree based on impotency is covered by section 2(v) proviso (c) of the Dissolution of Muslim Marriages Act, 1939 where proviso (c) reproduced below is of prime importance.

"(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground. "

4. No family Court can pass a decree for dissolution of marriage on the ground of impotency of husband unless, on the application of the husband, the latter is required to satisfy the Court within one year from the date of such order that he has ceased to be impotent. If the husband so satisfies the Court within such period, qua the same woman involved, no decree shall be passed on the ground of impotency.

5. In the instant case the decree was passed by Mrs. Muneera Abbasi learned Judge Family Court Mansehra on 28-11-1996 but before that, on 10-11-1996 the husband had filed an application (Annexure-F) the Contents whereof fully covered the requirements of proviso (c) and hence no decree could be passed unless further requirements of proviso (c) were complied with. The husband had to be provided time to satisfy the Court within the given period that he was not impotent. The learned Judge Family Court utterly failed to exercise the jurisdiction vested in her, in accordance with law.

6. While parting we may also remark that the impotency of the husband was based on the only evidence furnished by the Lady Doctor to the effect that the hymen of the wife was intact and that, hence, she was a virgin. The learned Judge was probably not aware of the settled medical and scientific phenomenon that the factum of hymen being intact, is not a conclusive proof of virginity. The hymen in certain cases is so flexible that it is not ruptured and at times is ruptured by the incidence of first delivery. Such type of singular evidence, we observe, must be appreciated by the Courts in the light of the aforesaid scientific and medical reality.

6-A. The evidence on record indicates that the husband and the wife have tried to produce their own medical certificates by consulting the Doctors themselves and without having been referred for such examination by the Court. This indicates a touch of personal involvement and, hence; the better approach would have been to get the parties medically examined through the Court. We would direct that the Court shall refer both the parties to be examined by a medical board for the required determination.

7. With these findings and observations the writ petition is accepted, the impugned judgment is set aside and the case is remanded back to the learned Judge' Family Court for giving decision afresh after complying with the provisions of proviso (c) to section 2 of the Dissolution of Muslim Marriages Acct. Parties are directed to appear before the Trial Court on 21-2-1998 with direction that-the trial shall be concluded without the least of the required delay.

H.B.T./43/P Petition accepted.