2003 PLP 1787 (CLC)

S. 7(2), proviso

Calling of witness at any later stage

Jurisdiction of Family Court

Scope

Provisions of proviso to S.7(2) of West Pakistan Family Courts Act, 1964, do not mean that Family Court can reopen the schedule to allow the parties to produce additional witnesses. Khizer Abbas Khan for Petitioner. Brief facts in the instant writ petition are that suit for dissolution of marriage on the basis of option of puberty was filed by the respondent. The suit was contested by the petitioner/plaintiff. Oral evidence was produced and during the pendency of the suit petitioner moved an application for addition of names of witnesses in the schedule of witnesses. The said application was dismissed on the same day. On 23-4-2003 petitioner moved an application for additional evidence. The documents sought to be produced by the petitioner was received in the evidence which was replied by the respondent. Learned trial Court vide judgment and decree dated 12-5-2003 decreed the suit of the respondent No.

1. Hence, the same judgment is impugned in the instant writ petition.

2. Arguments advanced by the learned counsel for the petitioner are that respondent No. 1 has failed to prove her exact age and as such she was not competent to repudiate her marriage with the petitioner, and that learned trial Court illegally rejected the petition regarding addition of names of the witnesses in the schedule and their examination for arriving at a just conclusion regarding controversy involved. The finding recorded by the learned trial Court against the petitioner on various issues are not supported by the evidence on record. The impugned judgment and decree being based on surmises and conjectures and is liable to be set aside.

3. I have heard the learned counsel for the petitioner and perused the record.

4. Respondent No.1 appeared as P.W.1 and she has stated that when she was 3 months old her Nikah was solemnized with Akram. This Nikah came to her knowledge 6 months prior to the making of statement and she in presence of Ghulam Hussain and Asad Ullah repudiated Nikah and that the petitioner has already two wives and 2 children and she cannot live with the petitioner as he is of immoral character and she has extreme hatred against him. She was subjected to long cross-examination but she stood the testimony successfully. She was supported by P.W.2 and produced Exh.P.1 copy of suit for declaration and certified copy of birth certificate (under objection) Exh.P.2. Petitioner appeared as D.W.l and stated that Nikah was solemnized when she was 'student of 4th class and she never repudiated the marriage and at the time of Nikah 10 Tolas of gold ornaments and 10 pairs of wearing clothes and different articles were given. In cross-examination he has admitted that he has filed a civil suit in respect of the property in which the respondent is legal heir. 4-A. Learned Judge Family Court held that admittedly Nikah of the respondent/plaintiff was solemnized when she was minor and she was orphan having no brother and it is also admitted that Akram has already two wives in addition to the respondent/plaintiff and there is a civil litigation going on between the respondent/plaintiff and the defendant in respect of the property belonging to her father and that D.W.1 was 25 years of age at the time of Nikah and suit for declaration was pending adjudication against Mst. Shakeela and counsel in both the suits is the same. The respondent/plaintiff has one step-sister. Her name is Mst. Aziz and in evidence it is admitted that Mst. Aziz's Nikah was solemnized with Baig who is paternal uncle of defendant and Baig is one of the plaintiffs in the suit for declaration which is Exh.P.1. The defendant put his reliance on the school leaving certificate of Mst. Shakeela EXh.D.1 and amended suit for declaration Exh.P.D.2 and as per Exh.P.2 the date of birth of plaintiff/respondent is 8-7-1983 and as per school leaving certificate Exh.D.1 the date of birth of Mst. Shakeela is 1-2-1989. Therefore, learned trial Court relying on the birth certificate dissolved the marriage of the respondent/plaintiff on the basis of Khula'. As far as point raised by learned counsel for the petitioner that the learned Court below could not grant the decree for dissolution of marriage on the basis of Khula" which was not pleaded in her suit for jactitation of marriage and no issue was formulated in respect of Khula". The perusal of record shows that the respondent/plaintiff has filed a suit for option of puberty. She placed the birth certificate according to which her date of birth at the time of filing of suit was 18 years of age and she has stated that earlier she had repudiated the marriage. The Rukhsati admittedly has not taken place.

5. The respondent/plaintiff also successfully proved that .she being orphan child was given in marriage during the minority and she owns certain property from her deceased father who had no male issue and the -defendant had paternal-uncle and himself had filed a suit in respect of property belonging to her father in suit for declaration and the defendant without rebutting the evidence in respect of age of the petitioner. Even Court can decree the suit for option of puberty without dissolving the marriage on the basis of Khula'. The arguments advanced by the learned counsel for the petitioner that 'Khula' was not pleaded in the suit filed by the plaintiff/respondent has no substance as a suit filed by the respondent/plaintiff is a suit for dissolution of marriage and as such the Court has to keep under consideration whether the marital spouses can live within the limits prescribed by God Almighty. If the Court is convinced that the marriage cannot subsist then the Court can always dissolve the marriage on the basis of Khula' even if it is not pleaded in plaint. Secondly the perusal of evidence shows that the defendant is already married having two wives and two children and he has ulterior designs for capturing property inherited by the respondent No.1. He himself has shown the respondent/plaintiff as sui juris in the suit for declaration and later on filed an application for amendment of the same. Perusal of the evidence shows that Family Court has rightly dissolved the marriage of respondent. No. 1.

6. The second point raised by learned counsel for the petitioner that the learned Court below had refused to add the names of the witnesses in the schedule of the witnesses produced by the parties. Learned Judge Family Court being special Tribunal is governed by provision of Family Courts Act. Section 7 of the West Pakistan Family Courts Act, 1964, as reproduced as below:-- "In paragraph 2 (the plaint shall contain all material facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose:" Provided further that:-- "the parties may with the permission of the Court call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice".

7. The bare reading of this section shows that the learned Judge Family Court is restrained by law not to allow additional evidence or add names of witnesses in the schedule. The provisions are mandatory. The schedule cannot be amended and the names of the witnesses cannot be added under section 7(2) of the Family Courts Act. The provisions of this section empowers the learned Judge Family Court that the parties with the permission of the Court call any witness at any later stage if Court considers such evidence expedient in the interest of justice does not mean that the Family Court will reopen the schedule and allow the parties to produce additional witnesses, therefore, the learned Judge Family Court rightly rejected the application as there was no provision to allow a Family Court to reopen the schedule submitted by the parties. Hence, keeping in view all the circumstances as observed by this Court there is no substance in this writ petition which is dismissed. M.H./M-1928/L Petition dismissed.