Summary of Argument

The concealment of the fact of unemployment of Mr. Raheel is not just and reasonable ground
for withdrawal from conjugal relationship by Ms. Riya. Because, withdrawal from conjugal
relationship by Ms. Riya on the basis of fact of unemployment is neither a question of fact nor a
question of law for the court. Article 35 of the Constitution of Pakistan states that the court shall
protect the marriage, as the dissolution of marriage on such a non-determinable ground is not
backed by any legal provision. Further, under Section 7 of MFLO, an effort to reconcile the
parties will be made. Hence, the institution of marriage shall be protected and reconciliation shall
be regarded as a ground for preservation of marriage. Under Section 2 of DMMA, concealment
of fact is not a reasonable and valid ground for withdrawal from conjugal rights as it does not fall
under any of the grounds mentioned to claim divorce. From the evidence it is also visible that the
only issue arising out of the unemployment was that the rent was not duly paid. No other
matrimonial dispute has arisen on the basis of unemployment.

ADVANCE ARGUMENTS

ISSUE C

Whether concealment of the fact of unemployment of Mr. Raheel is just and reasonable ground
for withdrawal from conjugal relationship by Ms. Riya?

No, the concealment of the fact of unemployment of Mr. Raheel is not just and reasonable
ground for withdrawal from conjugal relationship by Ms. Riya. Because, withdrawal from
conjugal relationship by Ms. Riya on the basis of fact of unemployment is neither a question of
fact nor a question of law for the court.

I. PROTECTION OF MARRIAGE UNDER CONSTITUTION OF

PAKISTAN, 1973
1. Under Article 35 of Constitution of Pakistan, it has been stated that; ‘The state shall
protect the marriage’.1 The first and the foremost step appears on behalf of the courts is to
make efforts to reconcile between husband and wife, in case of a dispute between the
parties. It implies that the state shall leave no stone unturned to reconcile between
1
Const. Pak. Art. 35 (1973).
 husband and wife, if possible. If the court finds the reasonable grounds for declaration of
divorce, even then the court shall go towards reconciliation between the parties. In the
present case concealment of unemployment by Mr. Raheel is not a reasonable ground for
withdrawal from conjugal relationship by Ms. Riya
2. Marriage is regarded as one of the most important institutions of the society. It cannot be
dissolved on mere will of the parties without proving any legal ground. Further, it is
evident from the facts of the case that no effort to reconcile the parties has been made.
Thus, the court first, shall know about the valid and legal ground to claim divorce, and
then the effort to reconcile between the parties will be made. Since it cannot be proved
that any legal ground is claimed for divorce, then the utmost responsibility on behalf of
the state would be to protect the marriage, under Article 35 of the constitution of
Pakistan, 1973.2
3. Hammad Hussain and others v. federation of Pakistan through secretary ministry
of law and justice, in this case federal Shariat court held that in the light of Quran and
Sunnah, divorce is legally permissible but it is considered as the most abhorrent and
unpleasant act therefore, Quran and Sunnah stress upon reconciliation and compromise to
be made between the spouses in case of any unpleasant rift occurs between them to avoid
divorce.3

In Conclusion

Article 35 of the Constitution of Pakistan, 1973 states that the court shall protect the marriage. In
the present case, the court shall make an effort to reconcile between the parties since the
marriage cannot be dissolved on such a non-determinable ground.

II. UNEMPLOYMENT AS UNREASONABLE AND UNJUST GROUND

UNDER DMMA
4. Under Section 2 of Dissolution of Muslim Marriages Act, 1939, 4 following grounds are
regarded as valid grounds for divorce,
i. That the location of the husband have not been known for a period of four years.

2
Const. Pak. Art. 35 (1973).
3
Hammad Hussain and others v. federation of Pakistan through secretary ministry of law and justice, (2021) 667
PLD (FSC) 45 (Pak).
4
Dissolution of Marriage Act, § 2 (1939).
 ii. That the husband has neglected or has failed to provide for her maintenance for
a period of two years.
iii. That the husband has taken an additional wife in contravention of the provisions
of the Muslim Family Laws Ordinance, 1961.
iv. That the husband has been sentenced to imprisonment for a period of seven
years or upwards.
v. That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years.
vi. That the husband was impotent at the time of the marriage and continues to be
so.
vii. That the husband has been insane for a period of two years or is suffering from
leprosy or a virulent venereal disease
viii. That she, having been given in marriage by her father or other guardian before
she attained the age of sixteen years, repudiated the marriage before attaining
the age of eighteen years.

5. In light of the above mentioned grounds, claiming divorce mere on the fact of
concealment of unemployment is nowhere mentioned. Neither, this can be implied from
any of the above mentioned grounds. Thus, it cannot be regarded as valid and just
grounds for withdrawal from conjugal rights.
6. In Syed Nobahar Shah v. Mst. Salma Bibi, Peshawar high court it was held when wife
is abused, misbehaved with and disrespected, it is also a cruelty and on the basis thereof
she may refuse to live with her husband and so she is entitled to the maintenance
allowance.5
7. In Zahoor Ahmed v. Farkhanda Yasmeen the Lahore High Court held that if a husband
abandons his wife and fails to provide for her basic needs, it can be a valid ground for
seeking khula (dissolution of marriage) by the wife.6

5
Syed Nobahar Shah v. Mst. Salma Bibi, (2016) 1668 CLC 17 Pesh. (Pak).
6
Zahoor Ahmed v. Farkhanda Yasmeen, 2012 PLD 153 Lah. (Pak)
 8. Additionally, the burden of proof to claim divorce under such grounds is on the aggrieved
party. As it cannot be established through any of the legal authorities that it is a legal
ground. Thus, to prove under section 2 would be completely illogical.
9. As per the decision of these cases, the court upheld the other grounds mentioned as per
Section 2 of DMMA, and none of the cases highlight the unemployment as a reasonable
and valid ground for withdrawal from conjugal rights.

In Conclusion

Under Section 2 of DMMA, concealment of fact is not a reasonable and valid ground for
withdrawal from conjugal rights as it does not fall under any of the grounds mentioned to claim
divorce.

III. RECONCILIATION AS A GROUND FOR PRESERVATION OF

MARRIAGE UNDER MFLO
10. Under Section 7 of Muslim Family Laws Ordinance, 1961, in case of divorce, the wife
has to wait for 90 days before contracting the other marriage. 7 This period is reserved for
the reason that there might be chances of reconciliation between the parties. During such
period, it is obligatory upon the arbitrator to reconcile between the parties. By the expiry
of such period, the divorce shall take effect after that.
11. From the case at hand, it is restated that the preservation of marriage has been prioritized
over anything. Since the divorce has impact on society at large, thus, its protection under
MFLO has also been made highlighted.

In Conclusion

Under Section 7 of MFLO, it has been stated that an effort to reconcile the parties will be made.
Hence, the institution of marriage shall be protected and reconciliation shall be regarded as a
ground for preservation of marriage.

CONCLUSION OF THE ISSUE

The concealment of the fact of unemployment of Mr. Raheel is not just and reasonable ground
for withdrawal from conjugal relationship by Ms. Riya, as it could not be established as either

7
Muslim Family Law Ordinance, § 7 (1961).
question of fact or law. Article 35 of the Constitution of Pakistan states that the court shall
protect the marriage. In the present case, the court shall make an effort to reconcile between the
parties since the marriage cannot be dissolved on such a non-determinable ground. Further,
under Section 7 of MFLO, it has been stated that an effort to reconcile the parties will be made.
Hence, the institution of marriage shall be protected and reconciliation shall be regarded as a
ground for preservation of marriage. Moreover, under Section 2 of DMMA, concealment of fact
is not a reasonable and valid ground for withdrawal from conjugal rights as it does not fall under
any of the grounds mentioned to claim divorce.