2023 PLP 301 (CLC)

SAFDAR SALEEM SHAHID, J.

Through instant petition, petitioner has called in question the legality of order dated 09.01.2014 passed by learned Judge Family Court and judgment dated 18.02.20216 passed by learned Additional District Judge, whereby claim of the petitioner for recovery of personal belongings valuing Rs.21,19,000/- was dismissed.

2. Brief facts necessary for decision of instant writ petition are that Suriya Nafees petitioner was married with respondent No.1 in consideration of 10-tolas gold as dower but no issue was born out of this wedlock. Petitioner was serving as Nurse and she after her marriage purchased one kanal land and constructed Maternity Home over it along with necessary equipment/articles valuing Rs.21,19,000/-. Thereafter, the petitioner was ousted from her aforesaid property and the same is in possession of respondent No.2. The petitioner filed a suit for recovery of her personal belongings before Judge Family Court (concerned) which was contested by respondent No.1 by filing written statement and raising many factual objections. After hearing the parties, learned Judge Family Court dismissed the aforesaid suit vide order dated 09.01.2014 by holding that the suit is not family suit in nature and same is not maintainable in its present form. Feeling aggrieved, petitioner preferred an appeal before learned Addl: District Judge which was also dismissed by the said court vide judgment dated 18.02.2016. Hence, this writ petition.

3. Learned counsel for the petitioner contended that impugned order and judgment have been passed by both the courts below while ignoring the relevant law and facts of the case, therefore, same are not sustainable in the eyes of law; claim of the petitioner needs to be proved after recording of evidence of the parties but suit of the petitioner has illegally been dismissed by the learned Judge Family Court being not maintainable; as per amended Schedule of Family Courts Act, 1964, suit for recovery of personal property and belongings of a wife falls within the category of family suit which is maintainable before Judge Family Court (concerned).

4. Notice was issued to respondent No.1 but no one has turned up on his behalf despite service effected upon him, therefore, he was proceeded against ex-parte vide order dated 31.05.2018.

5. Arguments heard. Record perused.

6. It has been noticed that claim of the petitioner is that she was serving as Nurse and after her marriage she purchased one kanal land and constructed Maternity Home over it along with necessary equipment/articles valuing Rs.21,19,000/- which was in possession of respondent No.1. The question before this Court is that whether Family Court has jurisdiction to entertain the suit where contention of the lady is that these articles/belongings were purchased by the lady herself after the marriage which were in possession of the husband at the time of separation between the parties. Section 5 of the Family Courts Act, 1964, says that the following matters fall within the jurisdiction of Family Court:-

1. Dissolution of marriage [including Khula].

2. Dower.

3. Maintenance.

4. Restitution of conjugal rights.

5. Custody of children [and the visitation rights of parents to meet them]

6. Guardianship.

7. Jactitation of marriage.

8. Dowry.

9. Personal property and belongings of a wife. Rule 6 of the Act ibid deals with the jurisdiction of the court to try the suit under the Act. Learned Judge Family Court straight away refused to entertain the suit with the observation that the subject matter of the instant suit is not mentioned in the Family Courts Act, 1964, as the property alleged to have been purchased or made after the marriage and most of the articles mentioned in the list are relating to the health center. The order passed by learned Judge Family Court when assailed before learned Addl: District Judge, he maintained the same by mentioning some different reasons that in the earlier suits filed by the petitioner and her mother mostly the same articles were mentioned in the list and said suits have already been decided by the competent courts. This was particularly not the question before the 1st appellate court because in-fact said learned court was bound to decide the matter regarding jurisdiction of the Family Court (concerned) to the effect that whether a suit filed by the lady regarding personal belongings or personal property which have been allegedly purchased by her after marriage while residing with her husband comes within the jurisdiction of the Family Court or not. As per Schedule mentioned above, the Family Courts Act, 1964, clearly empowers the Family Court to hear such suits but those are also subject to prove. On this legal point, both the courts below have erred in law and committed illegality. Primarily petitioner cannot be ousted on the point of jurisdiction by the Family Court (concerned). Both the Courts below have not rightly passed the impugned order and judgment.

7. In view of what has been discussed above, instant writ petition is accepted, impugned order and judgment passed by both the courts below are set aside and the case is remanded to the learned District Judge, Faisalabad, for its entrustment to the court of competent jurisdiction for trial afresh. However, as this writ petition was filed in the year 2016 whereas the matter in hand pertains to the year 2012, therefore, learned Judge Family Court seized with the matter shall decide the same expeditiously. SA/S-17/L Case remanded.