1. Leave to appeal is sought against the judgment of the learned single Judge in Chamber of the Lahore High Court, Multan Bench, Multan dated 3.12.2015. Arguments of the learned ASCs for the parties heard, impugned judgments of the Judge Family Court, the District Appeal Court and the one under consideration, of the Lahore High Court were carefully perused.
2. Brief facts of the controversy are that the petitioner, Mst. Yasmeen Bibi entered into wedlock with the respondent namely, Muhammad Ghazanfar Khan on 8.5.1994. The dower deed (Nikah Nama) was duly exhibited as Ex.PW-1/1 wherein, it was stipulated that dower in cash, amounting to Rs.1,00,000/- fixed, shall be payable on demand.
3. In column No.17 it was further undertaken by the respondent that he would pay Rs.1000/- to the petitioner as pocket money, besides the land measuring 200 Kanal situated in Moza Amir Shah, Tehsil and District D.I. Khan shall also be transferred in the name of the petitioner-wife and she would be exclusively owner of the same. The parties were blessed with two male children however, during the happy wedlock, the marital relationship received a sudden serious jolt and the petitioner was deserted from the home.
4. During the above period a written divorce (Ex.P-5/1) was sent on her address, which she received. The divorce deed squarely shows that it was irrevocable divorce because it was pronounced on 1.3.2005 three times in the written divorce deed in presence of the witnesses.
5. It was in the above background that the petitioner was paddled up for litigation and she brought two separate suits, one for recovery of arrears of maintenance allowance, recovery of dower and the other for the recovery of dowry articles in the Family Court, Multan on 17.6.2005. While as a counterblast, the respondent, Muhammad Ghazanfar Khan instituted a suit on 18.11.2005 for restitution of conjugal rights on the plea that the divorce given, was revocable and was not final. It may be stated here that the respondent has also contracted second marriage in the meanwhile.
6. Keeping in view the sky high rocketing prices of daily commodities and needs of life, the Trial Court decreed the suit for arrears of maintenance @ Rs.10,000/- till the time of ‘Iddat’ and also decreed the suit for recovery of Rs.1,00,000/- as dower. Besides, the landed property described in the column of “Nikah Nama” was also decreed after holding that it was within the jurisdiction of the Family Court as the petitioner-plaintiff was residing at Multan within the jurisdiction of the Court. Further, decree for the recovery of dowry articles was also granted on the basis of evidence and because of the admission made by the respondent-defendant that the dowry articles were lying with him, albeit, these were earlier denied by him in his written statement.
7. The District Appeal Court while seized of the two cross appeals, modified the decree by setting aside the decree of the Judge Family Court with regard to the land measuring 200-K in District D.I.Khan and also the decree with regard to the dowry articles. The order of the District Appeal Court is absolutely sketchy being bereft of reasons, much less cogent one and is also against the statutory law on the subject.
8. The learned Judge in Chamber of the Lahore High Court, Multan Bench vide impugned judgment, without going through the scheme of Family Court Act, amended upto date, jumped at the conclusion that all the issues, involved in the case were beyond the jurisdiction of the Family Court and in this regard the learned Judge without any care and caution to observe, relied on the view held in the case of Muhammad Akram v. Mst. Hajira Bibi and two others (PLD 2007 Lahore 515), which view is based on the judgment of the learned Single Judge of the Lahore High Court, Rawalpindi Bench where similar view was held in the case of Allauddin Arshad v. Mst. Nelofer Tareen(1984 CLC 3369).
9. The preamble of the West Pakistan Family Court, Act, 1964 is to the following effect:
“Preamble.– WHEREAS it is expedient to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.”
In the schedule amended upto date, the matrimonial disputes include i. dissolution of marriage (including Khula); ii. dower; iii. maintenance; iv. restitution of conjugal rights; v. custody of children [and visitation rights of parents to meet them]; vi. guardianship; vii. gactitation of marriage; viii. dowry; and ix. personal property and belongings of wife.
10. Before promulgation and enactment of the Muslims Family Laws Ordinance, 1961, and the West Pakistan Family Court Act, 1964, such matters were dealt with by the Civil Courts or Criminal Courts with regard to the maintenance allowance, which was a cumbersome, lengthy and tiring procedure. For getting the final relief of her grievances, the wife had to wait for years for recovery of dower, maintenance and other ancillary matters. In cases of dissolution of marriage, it had to consume years and after getting the decree by that time, majority of the wives had to become grey haired and much beyond the remarriage-able age, beside incurring heavy expenses on getting the relief with regard to a meager amount of maintenance, dower etc. It was in the above background that the Legislature felt essential to provide for establishment of Family Courts to deal with all matrimonial disputes, mentioned above, in an expeditious manner, curtailing the life of litigation in such cases. To curb and suppress the mischief of delaying tactics on the part of unscrupulous husbands, several amendments were introduced to the Family Court Act, 1964. Some amendments bearing striking features may be cited below:
“S.12-A. Case to be disposed of within a specified period. A Family Court shall dispose of a case, including a suit for dissolution of marriage, within a period of six months from the date of institution: Provided that where a case is not disposed of within six months either party shall have a right to make an application to the High Court for necessary direction as the High Court may deem fit.”
“S. 17-A. This newly enacted provision was with the object to curb the mischief of delaying tactics and the Family Court was brought under obligation to pass interim order, directing the husband to pay interim maintenance allowance to the children and the wife after filing written statement or at any stage thereafter.”
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