1998 PLP 1011 (CLC)

Khalid Mehmood v. Razi Abbas Bokhari, Judge Family Court and another PLD 1979 Lah. 217 ref. Ch. Muhammad Arshad for Petitioner The relevant facts for the decision of this Constitutional petition are that the petitioner and respondent No. l were married in accordance with the Muslim Rites but unfortunately the marriage failed and the result was that respondent No. l filed a suit for dissolution of marriage before the Judge Family Court, Faisalabad. The same is being contested by the petitioner. The learned Judge Family Court framed issues and fixed the case for evidence of the respondent No. 1, who during the pendency of the suit proceeded to England and constituted special attorney to pursue her suit for dissolution of marriage. The petitioner objected to this and it was argued that the suit relates to the personal matter and not to the property, therefore, the plaintiff has to appear in person in the Court. The objection was upheld by respondent No.2 vide order, dated 28‑5‑1997, which was challenged through an appeal before respondent No.3. The appeal was accepted by respondent No.3 vide order, dated 25‑9‑1997 and the result was that respondent No. 1 was allowed to be presented by Special Attorney. Now this Constitutional petition.

2. The learned counsel for the petitioner argued that as per provision of section 18 of the Punjab Family Courts Act, 1964 (hereinafter to be referred as Act of 1964) a witness cannot appear through Attorney. It is argued that the relief being personal, therefore, it was the plaintiff alone, who could have answered the question in cross‑examination.

3. I have given my anxious consideration to the arguments and gone through the record. Before proceeding any further it is worthwhile to refer to section 18 of Act, 1964, which reads as under:‑‑‑ "Appearance through agents.‑‑‑If a person required under this Act to appear before a Family Court, otherwise than as a witness, is a pardahanashin lady, the Family Court may permit her to be represented A by a duly authorised agent. " It is clear from the above provision that it is only enabling provision, which empowered the Court to dispense with legal requirement as to the appearance of any person and enable such person to be presented through an authorised agent, therefore, the provision of this section would be attracted only if a person is required by any provision of Family Court to appear before the Court, which however, can permit pardahnashin lady to appear through duly authorised agent. I am of the considered opinion that the legislature in its own wisdom has used the word 'person' instead of 'party', therefore, this section cannot be stretched to include a plaintiff. I may in this behalf refer to rule 4(1) of the Punjab Family Courts Rules, 1965. It was challenged as ultra vires of the provision of Act, of 1964 but the objection was overruled. In this behalf I may refer to the judgment reported as Khalid Mehmood v. Razi Abbas Bokhari, Judge Family Court and another (PLD 1979 Lah. 217).

4. The upshot of the above discussion is that there is no merit in this petition. The same is dismissed in limine. A.A./K‑52/L Petition dismissed