P L D 2012 Lahore 408 (PLP)

CH. MUHAMMAD YOUNIS, J.

Briefly stated the facts leading to the filing of this constitutional petition are that the petitioner filed a suit for recovery of maintenance and articles of dowry before the learned Judge Family Court Johar Abad District Khushab. The respondent No.3 submitted the written statement on 1-9-2010. The issues were framed and the case was fixed for recording of the evidence. At that juncture, an application was moved by the petitioner not to allow Muhammad Tariq attorney of the respondent No.3 to appear and make a statement as attorney. The said application under section 18 of the Family Courts Act was vehemently resisted by the respondent No.3 and the learned Judge Family Court dismissed the application. An appeal was preferred against the said order dated 30-5-2011 which was dismissed vide judgment dated 26-9-2011 being not maintainable. Both the impugned orders have been assailed through this writ petition.

2. The learned counsel for the petitioner contends that section 18 of the Family Courts Act only facilitates the "Parda Nasheen" lady to appear through attorney and this facility is not extended to the husband so the impugned orders are not sustainable in the eye of law. The learned counsel for the petitioner referred to 2010 MLD 904 (Lahore) in support of his arguments.

3. On the other hand, the learned counsel for the respondent No.3 vehemently opposed the petition and raised the preliminary objection about the maintainability of the writ petition against an interim order. In support of his arguments, he referred to 1981 SCMR 395, 1998 CLC 1011 (Lahore) and 2006 MLD 1752 (Lahore).

4. I have considered the arguments advanced from both the sides and perused the impugned orders.

5. There is no cavil to the proposition that no appeal was maintainable against an interlocutory order passed by the learned Judge Family Court as provided under section 14(3) of the Family Court Act, so judgment of the learned appellate court suffers from no legal infirmity and he rightly dismissed the appeal of the petitioner against an interim order. As regards the impugned order passed by the learned Judge Family Court, admittedly "any person" used in section 18 has been mis-interpreted but at the same time application of the petitioner has rightly been dismissed by the learned Judge Family Court. The provisions of section 18 are enabling ones providing a facility for the "Parda Nasheen" lady to be represented by a duly authorized agent. In the instant case respondent No.3/defendant himself submitted the written statement and engaged his counsel. It was at the stage of evidence when he being abroad appointed Muhammad Tariq as his attorney to produce the evidence to rebut the claim of the petitioner. I am of the view that in such an eventuality, the defendant cannot be forced to appear in the witness box on the application of the petitioner which was not possible for the respondent No.3 as he was not available in Pakistan. The court can direct any of the parties in a family matter to appear in person for the purpose of reconciliation etc. but in the instant case such stage is over and the respondent No.3 after having submitted the written statement himself proceeded abroad at the stage of evidence. If the attorney is well conversant with all the facts of the case there is absolutely no legal bar in the Family Courts Act whereby any of the parties could be debarred from appointing an attorney if the party is not available due to the reasons beyond his control. It is a suit for maintenance and recovery of dowry articles. The dowry was not included in the schedule of the Family Courts Act when the West Pakistan Family Courts Act was promulgated in 1964. It was inserted/included in the schedule in the year 1997 through Family Courts Amendment Act (VII of 1997). So, the legislature enacted the provisions of Section 18 keeping in view only the matters relating to dissolution of marriage, dower, maintenance, restitution of conjugal rights and custody of the children. In this scenario, the provisions of section 18 were meant for the said category of cases where personal appearance of the spouses was essential enabling the court to apprise itself of the real controversy/differences between the parties and for this purpose a mandatory provision of reconciliation was also included in the Act. In fact, recovery of dowry articles was a civil liability which was included in the schedule of the Family Court Act at subsequent stage in 1997. The provisions of Section 18 are just enabling provisions, whereas the defendant could not be deprived to defend the suit against him through his attorney. Reliance is placed on 1981 SCMR 395, 1998 CLC 1011 (Lahore) and 2006 MLD 1752 (Lahore). In case the plea of the petitioner is accepted, the learned Judge Family Court would have to adjourn the case sine die till the return of the respondent No.3 to Pakistan and appearing himself in the witness box. It would definitely frustrate the ends of justice as the family matters have to be disposed of expeditiously. Even otherwise the writ petition against an interim order was not maintainable. The legislature in its wisdom had specifically provided under section 14(3) of the Family Courts Act, 1964, that no appeal shall lie against an interim order passed by the learned Judge Family Court. To the maximum the evidentiary value of the testimony of the attorney can be evaluated and considered by the learned Judge Family Court in the light of the facts and circumstances of the case.

6. In the light of the above discussion, this writ petition being devoid of any substances is hereby dismissed. M.H./R-20/L Petition dismissed.