Sunday, 20 May 2012

Family suits can be consolidated

PLJ 2008 Lahore 513

[Rawalpindi Bench Rawalpindi]

Present: Ali Akbar Qureshi, J.

Mst. KANEEZ FATIMA--Petitioner

versus

JUDGE FAMILY COURT and another--Respondents

W.P. No. 830 of 2006, decided on 14.4.2008.



Constitution of Pakistan, 1973—



----Art. 199--Constitutional petition--Challenged the vires of interim order--Maintainability--Constitutional petition is not maintainable against the interim order.   [P. 515] A



West Pakistan Family Courts Act, 1964 (XXXV of 1964)—



----S. 17--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Challenged the vires of order passed by Judge Family Court--Consolidated suit for dowry articles, maintenance and dower amount against petitioner's son--Maintainability--Wife was facilitated to consolidate her claim as provided by law in one suit--No other option but to file a collective suit regarding her claims--Held: If the independent suit's are filed, the Judge Family Court would have no option but to consolidate the same and Family Courts have been given powers to regulate its own proceedings in the interest of justice if the situation so required--Matter pending before Family Court is being delayed by different tactics, hence not entitled for any equitable relief--Petition was dismissed.  [P. 515] B

Mr. Basharat Ullah Khan, Advocate for Petitioner.

Mrs. Sarkar Abbas, Advocate for Respondents.

Date of hearing: 14.4.2008.

Order

Through this Constitutional petition, the petitioner has challenged the vires of the order dated 17.3.2006 passed by the learned Judge Family Court on an application filed by the petitioner. The Respondent No. 2, who has been divorced by the son of the petitioner, filed a consolidated suit for dowry articles, maintenance and dower amount etc. against the petitioner's son namely Muhammad Arshad. The present petitioner, who is mother of the ex-husband of the Respondent No. 2, has filed the instant petition being the attorney. The petitioner submitted the written statement and during the proceedings on 15.3.2006, filed an application before the learned Judge Family Court to the effect that the suit filed by the Respondent No. 2 is not maintainable as the collective claim regarding maintenance, dower and dowry articles can only be filed in a suit for dissolution of marriage and not otherwise. The learned Judge Family Court after receiving the reply of the said application heard the arguments and dismissed the application vide order dated 17.3.2006, hence this Constitutional petition.

2.  The learned counsel for the petitioner contended that the collective claim asked by the Respondent No. 2 in one suit excluding the suit for dissolution of marriage is not maintainable in view of Section 17 of the West Pakistan Family Courts Act, 1964. Next contended that the order passed by the learned Judge Family Court is without jurisdiction and violative of the provisions of Section 17 of the Act ibid. Thus the findings recorded to this effect are not sustainable in law. Reliance is placed on Abdul Majeed vs. Judge Family Court, Kehror Pacca and 2 others (2003 YLR 884).

3.  Conversely, the learned counsel for the respondent contended that the Respondent No. 2 has already been divorced so the collective claim in one suit prayed by the Respondent No. 2 is not violative of Section 17 of the Act ibid. Further contended that the Section 17 confers ample powers to the Family Court to regulate its own proceedings and has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law and Family Court can exercise its own powers to prevent the course of justice being deflected from the path particularly in the circumstance when the West Pakistan Family Courts Act, 1964 is a remedial statute and its enactment is actuated with beneficial object behind it, for expedited the matrimonial and family disputes by simplifying the procedure and curtailing the technicalities of the procedure law. Next contended that in any case in the claims prayed by the Respondent No. 2, the parties would be same and has to be decided by the same learned Judge Family Court obviously by consolidating the same so no illegality was committed by the courts below. The reliance has been placed on Shahid Bakhsh v. Mst. Shazia Bibi and another (2004 CLC 703) Arif Sana Bajwa v. Additional District Judge, (Mushtaq Ahmed Tarar), Lahore and 4 others (2004 MLD 794) and Mst. Naziran Bibi v. Additional District Judge and others (2003 YLR 82). In response of the contention raised by the learned counsel for the petitioner that the mother of the ex-husband of the Respondent No. 2 cannot be impleaded, the learned counsel for the respondent has placed reliance on Muhammad Anwar and another v. Additional District Judge, Lahore (Miss Uzma Akhtar Chughtai) and 2 others (2003 YLR 365) wherein it is ruled that if the dowry articles are in the custody of the father of the husband, the father may also be impleaded as party and can be considered as necessary party.

4.  I have heard the learned counsel for the parties and perused the record.

5.  The instant Constitutional petition has been filed against an interim order passed by the learned Judge Family Court on an application filed by the petitioner and this is settled proposition of law that the Constitutional petition is not maintainable against the interim order. This proposition was confronted to the learned counsel for the petitioner, the learned counsel could not address this issue nor cited any judgment so the Constitutional petition is dismissed on this score alone. While dealing  with the other issue involved in this matter, that the learned Judge Family Court has rightly observed that while inserting Section 17 by the legislature in the Family Courts Act, 1964, the wife has been facilitated to consolidate her claim as provided by law in one suit whereas in this case admittedly the Respondent No. 2 has already been divorced by the son of the petitioner so the Respondent No. 2 had no other option but to file a collective suit regarding her claims. Even otherwise, if the independent suits are filed, the learned Judge Family Court would have no option but to consolidate the same and the Family Courts have been given powers to regulate its own proceedings, in the interest of justice if the situation so required. It is also observed that the attitude of the son of the petitioner and also the petitioner is so contumacious that the matter pending before the learned Judge Family Court is being delayed by different tactics, hence not entitled for any equitable relief.

6.  In these circumstances, this petition is dismissed with costs of Rs. 10,000/- which would be paid to the Respondent No. 2 before the learned Judge Family Court, who shall record the event of paying the costs as ordered by this Court and the learned trial Court shall dispose of the matter expeditious preferably within a period of two months.

(R.A.)      Petition dismissed.


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