P L D 2025 Balochistan 49
Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ
Mst. SAFIA and another ---Petitioners
Versus
SABIT ALI and another ---Respondents
Constitutional Petition No. 44 of 2024, decided on 10th October, 2024.
(a) Family Courts Act (XXXV of 1964) ---
----S. 5, Sched. ---Suit for recovery of dowry articles ---Family suit filed by the parents of
spouse ---Locus standi ---Husband pleaded that petitioners/parents of his deceased wife had no
locus standi to file a family suit for recovery of dowry articles ---Validity ---Jurisdiction of a
Family Court is circumscribed and is restricted to the "matters" mentioned in S. 5, Sched.,
which shows that it does not empower a Family Court to adjudicate upon a claim of a party qua his/her right of inheritance or Tarka ---Petitioners being parents of deceased spouse, who
was wife of defendant/respondent, sought share in the dowry articles being Tarka, for which they had approached the Family Court by way of filing a suit for recovery of dowry article and since determination of share in the Tarka of a deceased or its distribution did not fall within the jurisdiction of the Family Court, thus, suit was not maintainable and they had no
locus standi to approach the Family Court ---Constitutional petition was dismissed, in
circumstances.
Federation of Pakistan v. Public at Large PLD 1991 SC 750; Federation of Pakistan v.
Public at Large PLD 1991 SC 731 and Muhammad Javed and another v. Mst. Roshan Jahan
PLD 2019 Sindh 1 rel.
(b) Constitution of Pakistan ---
----Art. 199 ---Concurrent findings of Trial and Appellate Courts ---Jurisdiction of High
Court ---Scope ---In case of concurrent findings of the courts below, scope of the
constitutional petition becomes very limited.
2008 YLR 2309 and PLD 2008 Kar. 2005 rel.
(c) Family Courts Act (XXXV of 1964)---
----Preamble---Object and purpose ---Family Courts Act, 1964, has primarily been
promulgated for "expeditious settlement" and "disposal of disputes" mentioned in the S. 5, Sched., which primarily cater for the disputes arising out of "marriage", which is between the "spouses" and the "family affairs", which are the outcome of marriage.
(d) Family Courts Act (XXXV of 1964) ---
----Ss. 2(d), 6, 7, 8, 9, 10, 11, 12, 12- A & 17 ---Family dispute ---Disposal ---Procedure stated.
Niaz Muhammad for Petitioners.
Date of hearing: 03rd October, 2024.
ORDER
IQBAL AHMED KASI, J. ---The instant Constitutional Petition filed under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution'), carries the following prayer clause:
"It is, therefore, respectfully prayed that this Honourable Court may kindly be pleased to accept the Family C.P, set aside the impugned order of the Family Judge, Turbat
dated 25 -04-2024 and order dated 31.5.2024 of Additional District Judge, Turbat and
remand the matter back to trial court with direction to defendants to submit written
statement and then decide the matter on its merit or accordance with law in the interest of justice."
2. Relevant facts for disposal of instant petition are that the petitioners/plaintiffs filed a
suit for recovery of dower/haq mehr, amounting to Rs.100 misqal gold of their deceased daughter, namely, Mehreen.
3. The respondent No.1/defendant instead of filing written statement to contest the suit,
filed an application for dismissal of the suit, on the ground that the petitioners/plaintiffs being parents of Mst. Mehreen, who died on 31st May, 2024, are not entitled to the recovery of haq mehr, as out of the wedlock a son was born, as such, the suit does not fall within the jurisdiction of the Family Court.
4. After notice and hearing the arguments of both sides, the Family Judge, Turbat ('the
trial Court'), vide order dated 25.04.2024 ('the impugned order') allowed the application and dismissed the suit.
5. Feeling aggrieved, the petitioners preferred an appeal under Section 14 of the West
Pakistan Family Courts Act, 1964, before the District Judge, Turbat, which was transmitted
to the file of Additional District Judge, Turbat ('the lower appellate Court') and registered as
Family Appeal No.02 of 2024. After hearing arguments, the lower appellate Court also
dismissed the appeal, vide order dated 31.05.2024 ('the impugned order') while maintaining
the order of the trial Court, hence this petition.
6. Learned counsel for the petitioner inter alia contended that the impugned orders,
passed by the Courts below are illegal, unwarranted on facts and law and not maintainable;
that as per law and sharia after the death of her daughter Mst. Mehreen, the petitioners, being
her parents were entitled to claim dowry articles from the respondent No.1/defendant/ husband
of Mst. Mehreen, but the Courts below have failed to consider such aspect of the matter, even before taking evidence, dismissed the suit on the application of the respondent No.1/defendant, thus, committed grave illegality and irregularity, as such, the impugned orders are liable to be set aside and the matter be remanded to the trial Court for decision afresh after having evidence from both sides.
7. We have heard learned counsel for the petitioners and perused the available record
with his able assistance.
8. The moot question which requires determination by this Court is as to whether the
suit for recovery of dowry articles filed by the petitioners being the parents of the deceased before the Family Court, was maintainable and did they had the locus standi to file such a suit.
9. In the above backdrop a perusal of the plaint would show that it is the case of the
petitioners that they being parents of the deceased are entitled to receive the dowry articles i.e. 100 misqal gold from the respondent No.1/defendant, for which they have approached the Family Court.
10. It is worthwhile to mention here that the Family Courts are established under Section
3 of the West Pakistan Family Courts Act 1964 ('the Act'). The said Courts exercise their jurisdiction under Section 5 of the Act, which is restricted to the "matters" specified in Part I of the Schedule of the Act. For the sake of reference, the Section as well as the Schedule is reproduced hereunder:
"5. Jurisdiction.---(1) Subject to the provisions of the Muslim Family Laws Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule, where one of the spouses is victim of an offence committee by the other.
(3) The High Court may with the approval of the Government, amend the Schedule so
as to alter, delete or add any entry thereto."
"SCHEDULE
[See Section 5]
[PART I]
1. Dissolution of marriage [including Khula].
2. Dower.
3. Maintenance.
4. Restitution of conjugal rights.
5. Custody of children [and the visitation rights of parents to meet them]
6A. Matters pertaining to return of child under the Hague Convention on the Civil Aspects
of International Child Abduction, 1980.
7. Jactitation of marriage.
8. Dowry.
9. Personal property and belongings of a wife."
BALOCHISTAN AMENDMENT
In the Schedule, in Part I, for entry at serial No. 9, the following shall be substituted:
"9. The personal property and belongings of a wife and a child living with his mother.
10. Any other matter arising out of the Nikahnama. "
11. The preamble of the Act would show that the Act has been promulgated in order to
make provisions for establishment of family Courts for expeditious settlement and disposal
of disputes relating to marriage and family affairs and for matters connected therewith.
12. A careful reading of the preamble would show that the Act has primarily been
promulgated for "expeditious" "settlement" and "disposal of disputes" mentioned in the Schedule reproduced supra which primarily cater for the disputes arising out of "marriage", which is between the "spouses" and the "family affairs" which are outcome of marriage.
13. When an "issue/dispute/matter" as contemplated in the above Schedule arise to a
spouse, for "disposal" of the same either of them under Section 6 of the Act, being an aggrieved spouse will approach the Family Court against a party as defined in Section 2(d) of the Act, whose presence is necessary for proper decision of the case or which has been impleaded by the Family Court. Upon such institution, defendant shall be intimated under Section 8 who upon intimation will file a written statement under Section 9, where after under Section 10 process of "settlement" will be initiated by the Family Court by making an effort for reconciliation between the spouses. If the reconciliation fails, issues will be framed and thereupon under Section 11 parties will be put to evidence and once the evidence is concluded, under Section 12 another effort for "settlement" between the spouses shall be made by the Family Court and in case it fails, a final decree will be passed.
14. Unlike the procedure provided for proceeding in a regular civil suit under the Code of
Civil Procedure 1898 (C.P.C.), for "expeditious" disposal of the family suits, under Section 7 an aggrieved spouse is allowed to enjoin multifarious causes of action (as mentioned in the Schedule) in one suit and for disposal of the same Section 12- A provides for a timeline. To
further simplify the process/procedure and for express disposal of cases, under Section 17 application of Qanun- e-Shahadat, Order 1984, and C.P.C. has also been ousted.
15. Placing the afore -referred dissection of the Act in juxtaposition with the facts of the
present case, it has surfaced that the jurisdiction of a Family Court is circumscribed and is restricted to the "matters" mentioned in the Schedule reproduced supra. A bare perusal of the Schedule would show that it does not empower a Family Court to adjudicate upon a claim of
a party qua his/her right of inheritance or tarka as defined in judgments reported as
"Federation of Pakistan v. Public at Large" (PLD 1991 SC 750), "Federation of Pakistan v. Public at Large" (PLD 1991 SC 731) and "Muhammad Javed and another v. Mst. Roshan Jahan (PLD 2019 Sindh 1).
16. In the above background, since the claim of the petitioners is that they being the
parents of the Mst. Mehreen, the deceased wife of respondent No.1/defendant and seeking share in the dowry articles i.e. 100 misqal gold, being the tarka of the deceased for which they have approached the Family Court by way of filing a suit for recovery of dowry article and since determination of share in the tarka of a deceased or its distribution do not fall within the jurisdiction of the Family Court, hence the suit filed by them was not maintainable as they had no locus standi to approach the Family Court, thus, the Courts below have rightly decided against the petitioners.
17. Apart from above facts, there are concurrent findings of both the Courts below against
the petitioners/plaintiffs. In case of concurrent finding of the Courts below, scope of the Constitutional Petition becomes very limited. Reliance in this respect is placed to the cases reported as 2008 YLR 2309 and PLD 2008 Karachi 2005.
18. Learned counsel for the petitioners has failed to point out any illegality or irregularity
in the impugned orders of the Courts below, warranting interference by this Court.
In view of above, we are not inclined to admit the instant Constitutional Petition for
regular hearing, which is hereby dismissed in limini.
SA/127/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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