J U D G M E N T

Date of Hearings	:	17.01.2008 & 25.01.2008
Petitioner	:	Minoo Hoshang Kapadia through Mr.R.F. Virjee, Advocate.
Respondent	:	Arnaz Minoo Kapadia through Ms.Farida Moten, Advocate.
	:	Delegates, namely, M/s. Farokh Wania, Kati R. Sethna, Zarin H. Shroff, Zarin Jehangir Kakalia, Savak Ardeshir Mistry, Nergish Sam Jamasjee and Roy D. Minwala present in persons.

NADEEM AZHAR SIDDIQI, J : By this petition under Section 34 of the Parsi Marriage and Divorce Act III of 1936 (hereinafter referred to as “the said Act”), the petitioner has prayed for judicial separation between the parties.

The facts necessary for disposal of the above petition are that the petitioner married with the respondent on 17.01.2005 under the said Act. According to the contents of the petition, the parties could not live happily since the inception of marriage and the respondent has left the house on 22.02.2006 alongwith her personal effects and on 6th March 2006 the respondent’s father telephoned and told petitioner’s mother that they have decided for a separation and on 18.03.2006 took away bedroom furniture. It was further stated in the petition that the respondent hardly spent any time with the petitioner and most of the time she spent with her parents and left on 22.02.2006 and has not returned to stay with the petitioner. It was further stated that the petitioner has suffered considerable humiliation, mental torture and anguish and it is comprehensively apparent that the marriage has irretrievably and irreversibly collapsed and there are no chances whatsoever of reconciliation and that the respondent has deserted the petitioner against his will and has abandoned the marital home without adequate justification and reason.

After service of notice the respondent has filed her reply. In the preliminary legal objection she states that no ground of judicial separation has been made out, hence the petition is liable to be dismissed. Counter-allegations have been leveled against the petitioner that the petitioner has physically abused the respondent, forcefully pulled her by right wrist, aggravating an old injury of which the petitioner is aware of. It was further stated that the petitioner used to abuse the respondent every evening with accusations specially that she is not a proper wife and does not lookafter the house. The petitioner did not spend time with the respondent and neglected the respondent. It was further stated that the marriage had broken down completely on 22.02.2006 and that the marital relationship has stopped between the parties by the petitioner’s conduct and lack of interest in the respondent and the petitioner by his conduct deserted the respondent.

The respondent has also filed counter-claim in which she states that the petitioner has acted with cruelty towards the respondent and caused her injury and mental anguish, physical and mental torture, causing grievous hurt. The respondent is entitled for dissolution of marriage under the grounds for divorce under the said Act.

The matter was came up for hearing on 04.12.2007 on which date the notice was issued to the Delegates, who were present on the subsequent date of hearings and have appointed Mrs. Zarin H. Shroff as their Foreman.

On 25.01.2008 the learned counsel for the petitioner has stated that the petition under Section 34 of the said Act may be treated as petition under Section 32(g) of the said Act and instead of allowing judicial separation the marriage may be dissolved. The learned counsel for the respondent has no objection for dissolution of marriage. She, however, submits that the marriage be dissolved on the ground of causing grievous hurt by the petitioner to the respondent as provided under Section 32(e) of the said Act. The learned counsel for the petitioner has submitted that the petitioner has not caused any hurt to the respondent and that the alleged hurt claim by the respondent is not covered by the definition of grievous hurt provided in the said Act.

Mr. R.F. Virjee, the learned counsel for the petitioner submits that the differences were arose between the parties and their families even before marriage and since inception of marriage the parties could not live happily as husband and wife due to interference of the parents of the respondent. He further submits that inspite of efforts of the elders of the community, the dispute cannot be resolved and the marriage is not workable and no purpose will be served in compelling the parties to live as husband and wife in a hateful union and submits that equity deemed that instead of allowing judicial separation the marriage may be dissolved. He then submits that equity demands that parties may be released from marital ties so that the parties, who are young people, may start their new life. He has relied upon the following reported cases:-

1. NAWZER DHUNJISHAW KHESWALLA v. MST. KHOLSHED (PLD 1968 KARACHI 541);

2. VINITA SAXENA v. PANKAJ PANDIT (2006) 3 SUPREME COURT CASES 778);

3. COWASJI NUSSERWANJI v. SHEHRA COWASJI PATUCK (AIR 1938 BOMBAY 81); and

4. MANISH SIROHI v. SMT. MEENAKSHI (AIR 2007 ALLAHBAD 211).

On the other hand, Ms. Farida Moten, the learned counsel for the respondent claims dissolution of marriage on the ground of causing grievous hurt and submits that infact the petitioner has deserted the respondent and to avoid payment of maintenance is leveling allegation of desertion against the respondent. She submits that there is no possibility of compromise between the parties and they may be set at liberty by way of dissolving their marriage.

The Forman Mr. Zarin H. Shroff on behalf of the Delegates submits that they personally know the parties to the petition and the dispute amongst them and is of the view that the parties to the petition cannot live as husband and wife and it is improper to force them to live as such. They also expressed that they are satisfied that the marriage between the parties is not workable and no purpose will be served in keeping the parties to the petition in marital bond and to force them to live in hateful union. The Delegates are also of the view that instead of granting judicial separation the marriage between the parties be dissolved forthwith.

I have heard the learned counsel for the parties, Foreman of the Delegates and perused the record of this case and the case laws cited by the learned counsel for the petitioner.

The petition has been filed under Section 34 of the said Act for a judicial separation.

Section 34 of the said Act provides that any married person may sue for judicial separation on any of the grounds for which such person could have filed a suit for divorce, or on the ground that the defendant has been guilty of such cruelty to him or her or their children or has used such personal violence, has behaved in such a way as to rendered it in the judgment of the Court improper to compel him or her to live with the defendant.

From the above provision it appears that the judicial separation can be granted on any of the grounds for which a divorce can be granted and additionally on the ground of cruelty or personal violence. Both the parties have leveled allegation of desertion against each other and in this way agreed to a judicial separation and have prayed that the relief may be moulded and this petition may be treated as petition under Section 32 of the said Act and marriage may be dissolved.

The learned counsel for the petitioner submits that the petition may be treated as petition under Section 32(g) of the said Act, whereas the learned counsel for the respondent submits that the marriage between the parties be dissolved under Section 32(e) of the said Act.

Section 32 of the said Act provides grounds for divorce and provides that any person may sue for divorce on any one or more of the grounds mentioned in the section.

Section 32(e) of the said Act provides as under:-

“(e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution:

Provided that divorce shall not be granted on this ground if the suit has been filed more than two years: -

(i) after the infliction of the grievous hurt; or

(ii) after the plaintiff came to know of the infection; or

(iii) after the last act of compulsory prostitution.”

Sub-section (4) of Section 2 of the said Act defines “grievous hurt”, which reads as under: -

“ “Grievous hurt” means: -

(a) emasculation;

(b) permanent privation of the sight of either eye;

(d) privation of any member or joint;

(e) destruction or permanent impairing of the powers of any joint;

(f) permanent disfiguration of the head or facet; or

(g) any hurt which endangers life.”

From the perusal of the above clause it appears that the allegation of grievous hurt leveled by the respondent against the petitioner that the petitioner has forcefully pulled the respondent by her right whist, aggravating an old injury is not covered under the above definition and the marriage cannot be dissolved on this ground. Ms. Farida Moten additionally argued that the marriage can be dissolved on the ground of cruelty and personal violence and the allegations leveled by the respondent against the petitioner is covered by cruelty and personal violence. From the perusal of Section 34 of the said Act it is clear that the cruelty and personal violence is an additional ground for judicial separation and not divorce. The marriage can only be dissolved if come within ambit of Section 32 of the said Act. In the reported case of Haji Haroon Mandhra v. Abdul Rahim & others (SBLR 2001 SC 700) a Learned Single Bench of this Court has held that the Courts cannot ignore statutory law and judgments of superior Courts in the administration of justice and pass order on compassion grounds in favour of a party who may have suffered financially by the acts of another person on account of his own her negligent conduct.

Mr. R.F. Virjee submits that the marriage may be dissolved under Section 32(g) of the said Act. Section 32(g) of the said Act reads as under: -

“(g) that the defendant has deserted the plaintiff for at least three years.”

From perusal of the above provision it appears that the marriage on this ground can only be dissolved if the defendant has deserted the plaintiff for at least three years. The marriage was solemnized on 17.12.2005 and according to the plaintiff, the respondent has deserted him on 22.02.2006. The pre-condition for applying divorce is that the defendant has deserted the plaintiff for three years and the period provided in the statute has not lapsed and the marriage on this ground cannot be dissolved.

Mr. R.F. Virjee then submits that equity demands that the marriage be dissolved ignoring the period provided in the statute. Section 32(g) of the said Act provides that the marriage can be dissolved if the respondent has deserted the petitioner for three years.

In the instant case the marriage was solemnized on 17.12.2005 and according to the petitioner, the respondent has deserted the petitioner on 22.02.2006. The period provided in the section is not expired and the divorce cannot be pronounced on the ground of desertion ignoring the period provided in the statute itself. Mr. R.F. Virjee has relied upon an Indian Judgment under the Hindu Marriage Act reported as Monesh Sirohi v. Smt. Theenakshi (AIR 2007 Allahabad 211) in support of his contentions that the period mentioned in the statute can be ignored. In the above reported case the divorce petition was filed before the expiry of the period of one year provided in Section 14 of the Hindu Marriage Act, 1955. The trial Court has not passed decree for divorce on the ground that at the date of presentation of the petition one year has not elapsed from the date of marriage. However, the High Court in appeal allowed presentation of the petition before lapse of one year.

In this reported case, the matter was procedural and it appears that the statutory period matured during the pendency of appeal before the High Court.

In another reported case of COWASJI NUSSERWANJI PATUCK v. SHEHRA COWASJI PATUCK (AIR 1938 Bombay 81) judicial separation was granted on the ground of cruelty and it was held as under:

“The cruelty in the legal sense need not necessarily be physical violence either to the husband or the wife. It may even consist in a course of harsh conduct pursued by the husband towards his wife and/or their children, and also vice versa by the wife. Even a single act of gross cruelty may be enough to constitute legal cruelty, if it is such as to lead to a reasonable apprehension of further acts of cruelty towards the aggrieved party. It is not merely improper behaviour that constitutes the ground for judicial separation; it must be a behaviour of such a nature as to make it improper for husband and wife to live together in future.”

The above case relates to judicial separation and not of divorce.

The question is whether the period for doing any act provided in the statute can be ignored on the touchstone of equity and that it will be improper to force the parties to live in hateful union which will otherwise cause marital and physical torture and harassment to them. The Court in absence of any specific provision cannot bypass the provision of statute on the touchstone of equity. The statutory provisions have to be given effect by the Courts in letter and spirit. I could not lay my hand on any judgment directly on the point. The learned counsel for the petitioner has also frankly conceded that inspite of his efforts he could not lay his hand on any judgment. However, our Supreme Court in a recent case relating to Punjab Pre-emption Act IX of 1991 reported as MUHAMMAD AKRAM v. MST. ZAINAB BIBI (2007 SCMR 1086) has held as under: -

“The provisions of section 13(1) thereof are, however, emphatic in declaring that the said right “shall be extinguished” unless a person possessed of the same makes demands of pre-emption i.e. Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat in the prescribed order; the prescribed manner and within the stipulated time. The making of these Talbs is thus, not a mere procedural formality prescribing a mode for the enforcement of the right of pre-emption but on the same depends the very life and the continued existence of the said right. It may be added that the law has not granted any power to any Court to condone any deficiencies or deviations in the matter because the consequences of failure to perform the said Talbs in the prescribed manner, stand determined by the law itself i.e. “Extinction of the said right”. Hence the vital importance of these demands and making of the same strictly in accordance with the requirements of the said section 13.”

In another reported case of LAND ACQUISITION OFFICER v. GUL MUHAMMAD (PLD 2005 SC 311) it has been held that the Court cannot do what the statute expressly forbids. In the same Judgment it was further held that neither by consent nor by waiver the mandatory provision of the statute can be either modified or waived. It is a statutory duty which is cast on the Court and effect must be given to it.

In other reported case of DR. HAQ NAWAZ v. BALOCHISTAN PUBLIC SERVICE COMMISSION (1996 PLC (C.S) 872) the Learned Divisional Bench of Balochistan High Court has held that where time is essence to do a particular through and on basis whereof, any right has been claimed, the provisions would be mandatory in nature and if no right is claimed, provisions would be no mandatory.

From the reading of the above judgment, it is clear that the law has not granted any power to any Court to condone any deficiencies or deviations in the matter of making the said demands or to show laxity in the said matter. The position is similar in this case. The Court has no power to condone the period of three years provided in Section 32(g) of the said Act and before expiry of the period of three years the marriage cannot be dissolved.

Additionally, Mr. R.F.Virjee has produced a photocopy of Gazette of Pakistan dated 1st July 1999 and submits that the Secretary of the National Assembly as well as the Secretary, Ministry of Law, Justice and Parliamentary Affairs may be directed to expedite the amendment in The Parsi Marriage and Divorce Act, 1936. He submits that inspite of lapse of considerable time and the fact that the Standing Committee on Religious Affairs, Zakat, Ushr and Minorities has submitted the report on the Bill to amend the said Act no action has been initiated by the National Assembly to effect the amendment in the said Act due to which the Parsi community is suffering.

The Bill is pending with the National Assembly since 1997 and the request made by Mr. R.F. Virjee appears to be reasonable. However, direction to legislate cannot be issued in view of reported case of SHARAF FARIDI v. THE FEDERATION OF PAKISTAN (PLD 1989 Karachi 489) in which it has been held that there is a marked distinction between direction to the legislature to legislate and a direction to the executive to initiate the legislative measures to bring the existing laws in confirmatory to the provisions of the Constitution. It will be appropriate that the Secretary, National Assembly may look into the matter and consider to place the Bill before the National Assembly as early as possible to cure sufferings of the Parsi community.

Office is directed to send copy of this Judgment alongwith the copy of Gazette Notification to the Secretary, National Assembly as well as to the Secretary, Ministry of Law, Justice and Parliamentary Affairs for doing the needful as early as possible.

In view of what has been discussed hereinabove, the petition is allowed as prayed for judicial separation with no order as to cost.

Karachi

Dated 24.03.2008. JUDGE

*Farhan*