2010 PLP 797 (CLC)

ARSHAD MAHMOOD, J.

Through this constitutional petition, petitioner has questioned the order dated 5-6-2009 passed by respondent No.1/Judge Family Court, Mianchannu whereby his right of filing written statement was struck off.

2. While referring to Maqsood Ahmad v. Judge, Family Court, Burewala and 5 others 2001 CLC 567 learned counsel for the petitioner contends that the learned Judge Family Court had no authority to strike off defence of the petitioner/defendant on non-filing of his written statement.

3. Heard.

4. Perusal of the impugned judgment reveal that the learned trial Court has struck off the right of the petitioner to file written statement and fixed the case for pre-trial conciliation. Relevant provisions of section 10 of the Family Courts Act, 1964 are reproduced as under:

"

10. Pre-trial proceeding.

(1) When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case. (2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precis of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties and their counsel." Underlining is mine.

5. There is no cavil to the proposition that power of closing the right of written statement is not available to the Family Court in so many words. But with all respect to the precedent referred to by learned counsel for the petitioner, after requiring written statement in subsection (1), the words "if any" couched in subsection (2) of section 10 of the Family Courts Act, 1964 clearly postulate the intent of legislature that the Family Court is neither helpless nor supposed to act as a silent observer to the in-action and reluctance of the defendant in filing written statement. As per the dictum of law laid down by this Court in "Mst. Naziran Bibi v. Additional District Judge and others 2003 YLR 82 inherent powers as provided by section 151, C.P.C. are available to the Family Court.

6. A cursory glance at Family Courts Act, 1964 shows that the legislature has left many vacant areas but it does not necessarily .mean that embargo has been placed upon the Family Court in the exercise of certain powers, confidence has been shown in the Court to proceed in the matter by exercising its inherent powers to avoid abuse of the process of law without any hindrance of the technicalities imposed by civil Procedure Code, 1908. The purpose of enacting Family Courts Act is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. The purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities. It is settled proposition of law that Judge Family Court is competent to regulate its own proceedings as the West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances. Reference can be made to Akhtar Ali Said Bcha v. Mst. Naheed Bibi PLD 2003 Pesh. 63.

7. There is yet another fact of the case. Suit for dissolution of marriage has been filed against the petitioner but he was delaying the matter by not filing written statement. The only difference between the right of divorce devolved upon the husband and the right of Khula by the wife is that husband can divorce his wife without intercession of Court, while wife has to approach the Court to obtain dissolution of marriage. Once wife approaches the Court for dissolution of marriage on basis of Khula, then Court has no option, but to accede to her request, because she is entitled to divorce on basis of Khula ex debito justitiae. Therefore, right to claim divorce on the principle of Khula by wife is a right equal to the right of pronouncement of Talaq by the husband except with one difference that husband can pronounce Talaq himself but the wife has to file a suit seeking dissolution of marriage on the principle of Khula in the Court of Qazi (Family Court). Therefore, in the peculiar circumstances of the case order of the learned Judge Family Court closing right of written statement of the petitioner is not open to exception.

8. Most important aspect of the case is that if the interpretation offered by learned counsel for the petitioner that Family Court has no authority to close right of written statement of the defendant is taken as correct, it would render the Family Courts Act, 1964 practically unworkable placing the Family Court at the mercy of defendant. The defendant may never file written statement and in that eventuality no case would be decided. Survey of the case-law, however, reveals that the Court in such circumstances cannot and should not sit like a distant spectator to witness a legal battle, being fought before it by two adversaries. It should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path. In the family disputes, this is all the more necessary and may be this was the reason for enacting a special statute conferring exclusive jurisdiction on the Family Courts to decide these special family disputes. Reference can be made to Ghulam Murtaza v. Additional District Judge-II, D.G. Khan and 2 others 1991 CLC 81.

9. Even otherwise, the impugned order is interim/interlocutory in nature, the perusal whereof reveals that it is just and only the defendant's right to file written statement has been struck off against which a constitutional petition is not maintainable. Reference can be made to Zulfiqar Ahmad v. Judge Family Court 1996 MLD 1997.

10. In view of the above, this petition is not maintainable and is accordingly dismissed in limine. M.U.Y./A-306/L Petition dismissed.