UMAR KHITAB vs Mst — 2022 CLC 1821 PESHAWAR-HIGH-COURT

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UMAR KHITAB VS Mst. SANA SHAH Ss.2(v) & 2(ix)(c)---Constitution of Pakistan, Preamble & Arts. 2A, 4 & 25---Impotency, medical examination---Procedure and proof---Suit for dissolution of marriage on ground of impotency, non-payment of maintenance and cruelty wherein recovery of maintenance and dowry articles were also prayed for---Petitioner/husband in his written statement denied all the allegations including that of impotency and annexed his medical report from a famous laboratory as to prove potency---On stage of recording of evidence, respondent/wife submitted application for sending the petitioner for medical examination as to his impotency---Trial Court directed the petitioner to appear before Medical Board---Held, that for passing a decree on the ground of impotency of husband, the Family Court was not required to send the husband to appear before a Medical Board for its report---Family Court had to require the husband to satisfy within a period of one year from the date of its order that he had ceased to be impotent---If the husband would satisfy the Court, then decree of dissolution should not be passed on the ground of impotency---Section 2(v), (ix) and proviso (c) of clause (ix) of Dissolution of Muslim Marriages Act, 1939, was in line/conformity with Sharia, therefore no deviation could be allowed to sustain in the form of the impugned order of the Judge Family Court---Legal worth of medical report submitted by the petitioner and his plea of being a healthy/potent man was yet to be determined by the Family Court after recording of pro/contra evidence---Controversy had already been pleaded by parties, issues had been framed; parties were yet to produce their respective evidence---Procedure adopted by Family Court was alien to law---Allowing the impugned direction of appearance before the Medical Board to sustain, would cast a doubt over the legitimacy of the new born baby and petitioner would face an unending social humiliation and be deprived of social justice as guaranteed by the Preamble and Art. 2-A of the Constitution---Petitioner had not been treated by Family Court in accordance with law; had been compelled to do which the law did not require him to do; and had been deprived of the protection of law of the land---Constitutional petition was allowed accordingly. Head Notes

UMAR KHITAB vs Mst — 2022 CLC 1821 PESHAWAR-HIGH-COURT

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