P L D 1969 Lahore 834 (PLP)

MUHAMMAD AFZAL CHEEMA, J.

‑Mst. Khurshid Begum and Muhammad Ismail appellants claiming to be wife and husband inter se have respectively filed F. A. O. 145 and 161/68 which are connected matters, being directed against the same ex parte order dated 8‑7‑1968 passed by the Administrative Civil Judge, Rahimyar Khan, functioning as Family Court, whereby Fazal Ahmad respondent was held entitled to the custody of Gul Muhammad Minor and warrants under section 100 of the Cr. P. C. were issued for the recovery of the minor and the delivery of his custody to the respondent aforesaid. The two appeals will, therefore, be disposed of by this judgment.

2. The facts of the case which are both peculiar and involved are as follows. On 26‑2‑1968, Fazal Ahmad respondent filed an application under section 25 of the Guardians and Wards Act seeking custody of Gul Muhammad minor claiming him to be his son from his deceased wife Mst. Bashiran in the Court of the Administrative Civil Judge, Rahimyar Khan, functioning as Family Court under the West Pakistan Family Courts Act of 1964. Both the appellants, namely, Khurshid Begum and Muhammad Ismail were impleaded as respondents in this application and their address mentioned therein was Railway Quarter No. 7, Railway Station, Mughalpura, Lahore. It appears that on registration of the application, it was directed that notices should be issued to the present appellant for 6‑4‑1968 and simultaneously with this service through publication in the Daily Mashriq Lahore was also ordered on 6‑4‑1968. Neither notices were returned nor the publication in the newspaper was available and, consequently, it was ordered that fresh notices be issued to the appellant and the case was adjourned to 18‑5‑1968 when again service could not be effected and registered A. D. notices were ordered to be issued for the 22nd of June 1968. By this date, advertisement in the newspaper had been published and in the absence of the appellant, ex parte proceedings were ordered against them and the case was adjourned to the 6th of July 1968 for recording the evidence of the respondent‑petitioner. Finally, on 8‑7‑1968, an ex parte order was passed which has been impugned in the two appeals.

3. It appears that in execution of the Family Court's order for the recovery of the minor, the latter was recovered by the police and was handed over to Fazal Ahmad respondent, who executed a receipt.

4. Having lost the custody of the child, Mst. Khurshid Begum appellant filed an application under section 491, Cr. P. C. in the High Court for the recovery of the minor in which notice was issued to the respondent when it was revealed that he was retaining the minor on the basis of ex parte order obtained from the Family Court, Rahimyar Khan. Mst. Khurshid Begum then preferred F. A. O. No. 145 followed by Muhammad Ismail who filed F. A. O.

161. Proceedings in Criminal Miscellaneous No. 4284‑H/68, filed by Mst. Khurshid Begum under section 491; ,Cr. P. C. have since been stayed by the learned Single Judge in view of the pendency of the present appeals.

5. A unique feature of this extraordinary case is that here both the maternity as also the paternity of the unfortunate child, who is little more than four years of age, is disputed and the true facts seem to be shrouded in mystery.

6. The consistent position taken by the two appellants in their appeals, as reiterated before us at the time of arguments was that they were the real parents of the minor and that Mst. Khurshid Begum appellant was the lawfully wedded wife of Ismail respondent and bore him five children. Further in the year 1963, when she was pregnant, she went to condone the death of the nephew of the respondent in Rahimyar Khan where she was kept in illegal confinement by him and was not allowed to return. It was in these circumstances that she was delivered of the child and later the respondent performed a bogus marriage with her in October 1965 after having manoeuvred to obtain an ex parte decree for dissolution of her marriage with Ismail and subsequently early in 1967, she succeeded in making good her escape and rejoined her husband Ismail. As stated earlier, the position taken up by the respondent in .his application under section 25 of the Guardians and Wards Act as also reiterated before us was that his previous wife Mst. Bashiran died in the year 1964 sometime after she had given birth to Gul Muhammad minor and he then contracted a valid marriage with Mst. Khurshid Begum after she had voluntarily obtained a decree for dissolution of marriage with Ismail and that subsequently during his ailment at Multan where he had gone for treatment she left his house along with the minor.

7. On behalf of the appellant, the following contentions were raised before us:‑ (1) that the ex parte order was passed by the learned Family Court without proper notice to them and, as such, was liable to be set aside, (2) that even otherwise the respondent not being the father ,of the minor was not entitled to his custody. Reliance was placed in this regard on a receipt admittedly executed by the respondent on taking delivery of the child in the presence of Fazal Din a B. D. member of the Ward No. 8 Unit No. 734, Mughalpura, Lahore in which he described Mst. Khurshid Begum as the mother of minor Gul Muhammad.

8. A preliminary objection was taken by the learned counsel for the respondent to the competency of the appeal on the ground that under section 14 (1) of the West Pakistan Family Courts Act, 1964 an appeal against an appealable decision or decree passed by a Family Court could lie to the High Court only if the Family Court were presided over either by a District Judge or Additional District Judge or a person notified by the Government as such and since this condition was not satisfied the appeal could not lie to the High Court. On merits it was contended that the position taken up by the appellant was simply preposterous that she had been kept in illegal detention by the respondent for three long years and it was in these circumstances that she had given birth to the minor in the house of the respondent. It was urged that a certified copy of the relevant entry in the register of Marriages gave her a complete lie in these allegations.

9. Before proceeding to examine the contentions on the merits of the case, it is necessary to dispose of in the first instance the preliminary objection raised by the learned counsel for the respondent which is of a legal character. Section 5 of the West Pakistan Family Courts Act of 1964 confers exclusive jurisdiction on the Family Court to adjudicate upon matters specified in the Schedule of which item No. 5 refers to the custody of children. This provision has been made subject to the provisions contained in the Muslim Family Laws Ordinance of 1961 and the Conciliation Courts Ordinance of 1961. Section 25 of the Act confers on the Family Court the, status of a District Court for the purpose of Guardians and Wards Act and further provides that while dealing with these matters: the same procedure as prescribed under the Guardians and Ward Act shall be followed. Section 47 of the Guardians and Wards Act catalogues orders made by a Court which are all appealable to the High Court, of which clause (c) refers to an order made under section

25. The expression District Court has been defined in clause (4) of section of the Guardiars and Wards Act in the following terms:‑ "(4) `District Court' has the meaning assigned to that expression in the Code of Civil Procedure, and includes a High Court in the exercise of its ordinary original civil jurisdiction." `District Court' has been defined in the C. P. C. in the following terms:‑ "2 (4).‑`District' means the local limits of the jurisdiction of a particular civil Court of original jurisdiction hereinafter called a District and includes the local limits of the ordinary original civil jurisdiction of a High Court."

10. It cannot be disputed that the Family Court as constituted under the West Pakistan Family Courts Act of 1964 having exclusive jurisdiction to deal, inter alia with custody of children is not a District Court in terms of the above definition except that the deeming provision contained in section 25 has conferred that status on it while dealing with cases under the Guardians and Wards Act. The important question to be decided is whether for the determination of the appellate forum section 47 of the Guardians and Wards Act shall be invoked or in the alternative the relevant section 14 of the West Pakistan Family Courts Act shall be applicable. An answer to this question shall be furnished by proper interpretation of section 25 of the latter Act which reads as follows:‑ "

25. Family Court shall be deemed to be a District Court for purpose of the Guardians and Wards Act, 1890.‑A family Court shall be deemed to be a District Court for the purpose of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act, shall, in dealing with matters specified in that Act, follow the procedure prescribed in that Act. Section 14 of the Family Courts Act reads as under:‑ "

14. Appeals.‑Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable‑ (a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of a District Judge; and (b) to the District Court, in any other case. (2) No appeal shall lie from a decree passed by a Family Court‑ (a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939: (b) for dower not exceeding rupees one thousand; (c) for maintenance of rupees twenty‑five or less per month.

11. Since under section 25 of Act the Family Court has to be equated with a District Court for the purposes of case under the Guardians and Wards Act, it appears to us that sub‑clause (b) of subsection (1) of section 14 would be straightway excluded inasmuch as the order passed by the Family Court in a case of this kind would be only in its capacity as a District Court and no Court can hear an appeal against its own order or from that of a concurrent jurisdiction. Likewise, clause (a) would also be inapplicable inasmuch as it could be invoked only in a case where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and of the status of a District Judge or an Additional District Judge. It appears to us that where a Civil Judge, Ist Class, functions as a Family Court while dealing with a case relating to the custody or guardianship of a minor, the rank and status of an Additional District Judge must be conferred on him, by means of a notification in order to make his order appealable under clause (a) of subsection (1) of section

14. The learned counsel for the appellant could not place any such notification on the record. It would thus appear that the order in question or any such order would not at all be amenable to an appeal. Obviously nothing could be further from the intention of the Legislature than to impart a finality of such an order of the Family Court which cannot be deemed to have become sacrosanct.

12. The rider attached to the provision contained in section 14 opening with the expression "notwithstanding anything provided is another law for the time being in force", makes it abundantly clear that all other previsions relating to appeals contained in other relevant laws, including those of section 47 of the Guardians and Wards Act would be excluded from operation. But this provision has been subjected to a further limitation by the words "and notwithstanding anything contained in this Act" as occurring in section 25 of the Act reproduced earlier. An analysis of section 25 yields two inferences‑ (i) that a Family Court is equated with a District Court for the purposes of Guardians and Wards Act, (ii) while dealing with the matters specified in the Guardians and Wards Act, a Family Court shall follow the procedure prescribed in that Act. Ordinarily the word "procedure" connotes details of the mode of trial to be adopted in a particular Court and would not include the provisions relating to appeal, but in view of the expression "in dealing with the matters specified in that Act, follow the procedure prescribed in that Act" coupled with the inevitable consequence arrived by us earlier, to the effect that the order in question would not be governed by any of the provisions E contained in section 14 so as to make it appealable, we are clearly of the view that the only proper interpretation that can be placed on sections 14 and 25 of the Act read together is that for the purposes of appeal, against an order of the category with which we are concerned section 47 of the Guardians and Ward Act would be applicable and accordingly an appeal would be competent to the High Court.

13. Relying on Khizar Hayat v. Zainab Begum (P L D 1967 S C 402), it was contended on behalf of the respondent that in the instant case an appeal, if at all, would be competent to the District Judge and not directly to the High Court. In that case Mst. Zainab Begum had filed an appeal under section 25 of the: Guardians and Wards Act before the Guardian Judge which was dismissed in default. She then brought a second application before the Family Court which by then had been constituted, in presence of the West Pakistan Family Courts Act, 1964.. The Civil Judge functioning as Family Court dismissed the second application on the ground that no fresh cause of action had arisen. An appeal against this order was taken to the District Judge and not to the High Court. It was argued that the legality of this procedure was, never challenged at any stage either before the High Court or the Supreme Court and, as such, it may be deemed to have been impliedly upheld. Since admittedly the question of the competency of the appeal before the District Judge was never raised at any stage, in the absence of a specific finding by the superior Courts upholding the procedure on an objection being taken, it could not be regarded as lying down any law on the point.

14. Having already decided in favour of the competency of the appeal to the High Court we now proceed to consider the question on its merits. Having perused the record, we are clearly of the view that the order has got to be struck down for more than one reason. in the first instance, we are satisfied that the ex parte order was passed without proper notice to the appellants on whom no valid service and been effected. Secondly, even otherwise in a case like this where both the paternity as well as the maternity of the unfortunate child are in dispute, a proper determination of these important issues warranted a regular trial affording proper opportunities to the parties to adduce evidence in support of their respective positions. The order is, therefore; unsustainable. But the matter could be examined from yet another aspect.

15. The jurisdiction to function as Family Courts has been conferred on the District Judges, Additional District Judges and the Civil Judges under rules 3 and 7 of the West Pakistan Family Courts Rules, 1965. They read as follows :‑ "

3. Subject to the provisions of rule 7, the Courts of the District Judge, the Additional District Judge and Civil Judge shall be the Family Courts for the purposes of the Act." "7. (1) Suits relating to the custody of children and for guardianship shall be instituted in, and be heard and tried by the Court of the District Judge, but such Court may transfer any such suit to the Court of the Additional District Judge, the Senior Civil Judge, the Civil Judge, First Class or the Civil Judge First Class (Additional) having jurisdiction as provided in rule 6, and thereupon the Court to which such suit is so transferred shall have jurisdiction to hear and try the same. (2) Suits triable under the Act, other than those relating to the custody of children and for guardianship, shall be instituted in, and be heard and tried by, the Court of the Civil Judge having jurisdiction as provided in rule 6, and where in any District there is no such Court, such suits shall be instituted in, and be heard and tried by, the Court of the District Judge or the Additional District Judge. (3) Notwithstanding anything contained in the sub‑rules (1) t and (2), the Court of the District Judge may‑ (a) recall any suit made over by it for trial under sub‑rule (1) to any Court specified in that rule, and either try such suit itself or refer it for trial to any other Court within the District; (b) send for the record and proceedings of any suit pending for trial in any Court in the District and hear and try the Suit itself or refer it for trial to any other Court within the District, and thereupon the Court of the District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit." The position as it emerges from the two rules read together, therefore, is that the Administrative Civil Judge, Rahimyar Khan, was invested with the powers of the Family Court but he could not directly entertain an application under section 25 of the Guardians and Wards Act. Rule 7 reproduced above regulates the institution or suits relating to the custody and guardianship of children. They have to be instituted in the Court or the District Judge who may either hear and try the suit himself or may transfer the same to any of the Courts subordinate to him, of course not below the rank of a Civil Judge First Class (Additional). In the instant case, however, a perusal of the record makes it abundantly clear that the application was filed by the respondent directly in the Court of the Administrative Civil Judge and it did not come to him on transfer by the District Judge. The inevitable consequence that follow there from is that the entire proceedings culminating in the impugned order were without jurisdiction and, as such have to be struck down.

16. The upshot of the discussion is that we allow the appeals and set aside the impugned order with costs. A. E. Appeal allowed.