P L D 1985 Karachi 362 (PLP)

This is a Constitutional petition under Article 9 of the Provisional Constitutional Order, 1981.

2. The facts leading to this petition, briefly stated, are that the petitioner and respondent No. 1, Hindus by religion, were married at Karachi on 9-12-1977. Out of the said wedlock a daughter named Heera Kumari was born on 31-8-1978. After some time the relations having become strained, respondent No. 1 filed a Family Suit No. 1189/79 on 31-5-1979 against the petitioner claiming maintenance for herself and for the minor child, with further prayer for the arrears. Respondent No. 2 (XXVIlth Family Judge, Karachi) decreed the suit by his judgment and decree dated 23-5-1982 and 12-7-1982 respectively, against which an Appeal was filed by the petitioner as Family Appeal No. 107 of 1982, which was dismissed by Respondput No. 3 (Vth Additional District Judge, Karachi) by his judgment dated 31-10-1984:

3. Mr. Anwar A. Qadri learned counsel for the petitioner has raised the following contentions in support of the petition :- (1) The Family Courts Act, 1964 is not applicable to Hindus. (2) The Family Judge illegally rejected the application for amendment of his written statement. (3) Respondent No. 1 having been divorced, is not entitled to claim her maintenance. (Petitioner, however, did not object to the right of maintenance of the minor daughter).

4. As regards the first contention, learned counsel argued that the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (XIX of 1946) is a Central statute whereas the Family Courts Act, 1964 is a provincial statute ; hence the provisions of Act XIX of 1946 were illegally invoked. He, therefore, urged that the Family Courts Act, 1964 not being applicable to Hindus, recourse should have been had by respondent No. 1 to section 488, Cr. P. C. The contention is entirely misconceived. The learned counsel has not been able to cite any case-law in support of his contention. On the contrary, 1 find that the provisions of section 5 of the Family Courts Act, 1964 do not exclude from its ambit cases relating to marriage and family affairs of non-Muslims including Hindus. The Family Courts Act is a procedural statute and does not come into conflict with the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. The Act of 1964, in every sense of the term, has brought about only procedural change and has not affected any substantive right, muchless the right to separate maintenance of Hindu married women as provided in Act XIX of 1946. There is nothing in the, Family Courts Act, 1964 to show or even infer from the scheme of the said Act by which it could be said to be inapplicable to Hindus. Merely the use of the expression "subject to the provisions of Muslim Family Laws Ordinance, 1961" does not take away the jurisdiction of the Family Courts to try and decide the matter relating to the maintenance of a Hindu wife) or the minor. The Central Act XIX of 1946 does not, in the circumstances! of the case, have an overriding effect on Family Courts Act which is a~ provincial statute. Reference may be made to a number of cases reported' as Mrs. Daphne Joseph v. Malik .Eric Roshan Khan (P L D 1971 Kar. 887), Adnan Afzal v. Capt. Sher Afzal (P L D 1969 S C 187) and Safdar Matti v. Mst. Rozi Jan (P L D 1977 Lah.836).

5. As regards the second contention it has equally no force. Mr. Qadri has not been able to satisfy me if the order not allowing the late amendment of the written statement was without jurisdiction so as to attract Constitutional jurisdiction of this Court. I have perused the order dated 25-11-1981 passed by the learned Family Judge who, while dismissing the application dated dated 12-11-1981 moved by the petitioner for permission to amend the written statement, observed that the written statement was filed on 20-3-1980 while the application for amendment was moved on 12-11-1981, wherein no reason was shown for delay. Mere saying "duel to oversight" was not enough. The learned Judge further observed that it was unbelievable that he has divorced the plaintiff on 7-5-1979 which fact he alleges now for the first time and he forgot to mention it due to oversight. The order passed by the learned Family Judge, as affirmed by the learned Additional District Judge, cannot in any sense be termed as illegal or without lawful authority.

6. As regards the third contention, suffice it to say that a divorce suit filed by the petitioner stood already dismissed by the Ist Additional District Judge, Karachi by his Judgment dated 26-5-1981 in D. P. Suit No. 4 of 1978 between the parties. A photo copy of the said judgment is available at page 37 of the trial Court's record. In the said judgment (in D. P. Suit No. 4 of 1978) it has been observed by the learned Judge that respondent No. 1 has denied her signature on the so-called declaration of divorce. The burden of proof of the genuineness of Exh. 2 was on the petitioner who failed to examine any witness or produce any document to prove the contents of Exh. 2 and, therefore, it was not believed by the learned First Additional District Judge, Karachi that respondent No. 1 was a divorcee. No appeal or further proceedings were taken by the petitioner against the said judgment which became final.

7. It may, further, be observed that conclusions supported by evidence reached by the Family Courts having jurisdiction are not open to interference by this Court while exercising its power under Article 9 of the Provisional Constitutional Order read with Article 199 of the Constitution of Pakistan, 1973.

8. The petition has, therefore, no force and is accordingly, dismissed in limine. M. s. A. Petition dismissed.