P L D 1997 Lahore 431' (PLP)

The brief facts of the instant writ petition are that Mst. Mumtaz Bibi respondent No. l filed a suit for dissolution of marriage on the basis of exercising her right of option of puberty with the assertion that her Nikah was solemnised during her minority and Rukhsati did not take place, when she reached the age of puberty she through her right of option of puberty dissolved the marriage.

2. This suit was contested by the present petitioner on the basis that in the certified copy of Nikahnama dated 14-12-1989 performed at Union Council, Kabirwala, Tehsil and District Multan the suit on the basis of puberty is not maintainable and in the column of Nikah the age of the respondent is written as 18 years. Therefore, the plaint is completely false and incorrect, and the respondent is debarred from exercising, her right of option of puberty. He gave an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on the ground that the petitioner/defendant has produced registered Nikahnama dated 14-12-1989 and in presence of Nikahnama the suit for option of puberty is not maintainable.

3. The respondent No.2 filed reply to this application and the learned Judge, Family Court vide order dated 14-9-1996 dismissed the same being mis conceived. It was observed that application under Order VII, Rule 11, C.P.C. is not maintainable in family suits and it is for the respondent/plaintiff to establish that her Nikah was performed during minority and this factual matter requires evidence.

4. Against this interlocutory order the present petitioner filed the instant writ petition. 5. .earned counsel for the petitioner submits that the interlocutory order is challenge-able in the instant writ petition because it has decided the jurisdictional -matter. He has further submitted that under section 2(vii), Dissolution of Muslim Marriages Act, 1939, it is mentioned as under:-- "That she, having been given in marriage by her father or other guardian before she attained the age of sixteen years repudiated the marriage before attaining the age of eighteen years." The certified copy of the Nikahnama dated 14-12-1989 is not denied by the respondent who has given an evasive reply to the application filed under Order VII, Rule 11, C.P.C. He has relied on Mst. Basra v. Abdul H4im etc. PLD 1986 Quetta 298 wherein it is held as under:-- "High Court can interfere with a finding of fact of a Family Court in exercise of writ jurisdiction if it is based on misreading of evidence or contrary to evidence on record." It is contended that if the trial and proceedings are not held according to procedure laid down in the Act, it can tie corrected. He has relied on Mst. Zohran Bibi v. Manzoor Ahmad etc. PLD-1975 Lahore

318. It is observed that the trial and proceedings, not held according to procedure laid down in the Act, would be rendered not merely irregular but illegal and void.

6. I have heard learned counsel for the petitioner and have carefully perused the record. The Family Courts Act, 1964 has laid down the- procedure which governs all family cases. It has also given a Schedule which mentions the cases falling within the jurisdiction of Family Courts established under the Act. Section 14 of the Act . provides remedy for one appeal. Any statute which excludes right of appeal against an interim order cannot be bypassed, by bringing under attack, giving such order. The parties are under duty of law to wait till interim order matures in final order. The Schedule given in the Ac, expressly gives a right to Family Court to entertain the family suit relating to dissolution of marriage and option of puberty.

7. Sections 14 and 17 bar application of C.P.C. and expressly provided one appeal against the decision or decree passed by the Family Court. It has also expressly made certain decrees unappealable because C.P.C. does not apply to the proceedings under Family Courts Act, 1964 except sections 10 and 11 of the C.P.C. It is a. special law which has established Family Courts for this purpose and section 13 is clear that the Family Court shall pass a decree in form and manner as may be prescribed and shall enter its particular in the prescribed register. Therefore, the special law is governed by its own provisions. Under section 14 only such decree will be appealable which will finally determine the proceedings before the Family Court. A Family Court is not subordinate to High Court because section 17 of the Act bars application of C.P.C. to family proceedings which means that the intention of Legislature is not to carry every case to High Court. Therefore, the interlocutory order passed by the Family Court cannot be assailed in writ jurisdiction. Moreover, the application of C.P.C. is barred under the provisions of Family Courts Act, therefore, the learned Judge, Family Court has rightly dismissed the application under Order VII, Rule 11, C.P.C. 8. - The intention of the .Legislature is that all technicalities be avoided for the administration of justice especially to the spouses of family matter and to reduce further litigation;- therefore, even the remedy of rejection of plaint is not available unless the Family Court determines finally after perusing the evidence produced by the parties. In the present case the respondent No. l filed a suit for option of puberty and it is only through evidence that she should establish that her Nikah was performed during the minority and she has repudiated her marriage under the provisions of section 2 of the Dissolution of Marriages Act, 1939 and not otherwise. The Family Court is seized of jurisdiction to reject the plaint on its face as is provided by the general law of C.P.C. It is rightly held by the learned Judge, Family Court that any controversy between the parties can only be examined when the evidence is produced by the parties in the captioned suit, therefore, finding no substance to interfere in the matter on the Constitutional side, the same is dismissed in limine.

9. This also disposes of Civil Miscellaneous No. 1 of 1996 and Civil Miscellaneous No.2 of 1996. A.A./M-278/L Petition dismissed.