1993 PLP 2070 (MLD)

(c) That the respondent has instituted the case at Haripur mala fide to harass and humiliate the petitioner. The respondent delivers threats to the petitioner to come on terms otherwise be ready for dire consequences. (d) That the petitioner has got a suckling baby and it is very difficult rather impossible to proceed to Haripur and defend the case there. (e) That the available means do not warrant the petitioner to defend the case at Haripur alone, also in prevailing circumstances, the petitioner does not feel safe to go to other District to attend the Court and then safely come back:"

3. The learned counsel for the respondent on the authority of Mst. Sadia Jabeen v. Muhammad Khalid Siddiqui PLD 1987 Kar. 652 raised a preliminary objection to the competency of the petition. On the other hand, learned counsel for the petitioner placed reliance on Mst. Naghma Jabeen v. Muhammad Ayoob and another 1988 CLC 986 to contend that as the suit in the Family Court could neither be transferred under section 24 of the Civil Procedure Code (V of 1908) nor under any provision of the West Pakistan Family Courts Act (XXXV of 1964), therefore, resort could be had to Article 203 of the Constitution of Islamic Republic of Pakistan.

4. In Sadia Jabeen's case, Naimuddin, J., as his Lordship then was, reviewed almost entire case‑law cited by the learned counsel for the parties. In support of the contention that such a transfer of suit could be ordered under Article 203 the learned counsel appearing on behalf of Mst. Sadia Jabeen had relied on: (1) Mst. Gaman v. Taj Din PIT) 1968 Lah.987, (2) Karim Bakhsh v. Msc. Mubarik Jan PLD 1970 Pesh.169, (3) Mst. Farida Parwin v. Oadeeruddin Ahmad Siddiqi PLD 1971 Kar.118, (4) Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar.164, (5) S. Zahid Ali v. Mst. Mubarak Bano PLD 1976 Kai. 68, (6) Malkani Sahibzadi Tiwana v. Shahbaz Khan and 5 others 1985 CLC 2717, (7) Mst. Zakia Nazar v. Tallat Mahmood 1985 MLD 253 and (8) Muhammad Iqbal and others v. Settlement Commissioner and others 1985 MLD

308. On the other hand, the learned counsel appearing on behalf of the respondent in Sadia Jabeen's case referred to: (1) Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar. 164, (2) S. Zahid Ali v. Mst. Mubarak Bano pLD 1976 Kar.68, (3) Maqbool Elahi v. Mst. Farrakhunnisa PLD 1973 Kar.485 and (4) Mst. Khairunnisa v. Sayed Abdur Rahim PLD 1973 Kar.237.

5. Naimuddin, J., before proceeding to ascertain the ratio dividend from the case‑law noted above also observed, and rightly so, that unfortunately the Family Courts Act, 1964 does not provide for transfer of case from one to another Family Court. so far as Sindh was concerned. In N: W.F.P. too the situation is similar. In the Province of Punjab, however, section 25‑A has been added to the Family Courts Act, 1964, by Punjab Act No. XXLV of 1971 where under the High Court had been empowered to transfer Family Court cases from one Court to another.

6. After reviewing the voluminous case‑law cited at the Bar, the learned Judge in the case of Sadia Jabeen cited above and after great deal of discussion held that the petition was not maintainable even under Article 203 of the Constitution and dismissed it. Nonetheless his Lordship was persuaded to suggest, before parting, amendment in the Family Courts Act for giving powers to High Court for transfer of suit from one Family Court to another as incorporated in Punjab.

7. In the precedent case of Mst. Naghma Jabeen v. Muhammad Ayoob and another 1988 CLC 986 which the learned counsel for the petitioner/wife had cited, reliance was substantially placed on a Division Bench judgment of S. Zahid Ali v. Mst. Mubarak Bano PLD 1976 Kar. 68 wherein the following observations made by the Division Bench were reproduced:‑‑ "What, therefore, follows from the above is that the fundamental object of supervision is to keep the administration of justice pure, and for that purpose the High Court exercises power to correct the failure, faults, or dereliction of duty, laches, defects of jurisdiction, denial of justice, bias or disability of the Court, which instances are by no means exhaustive, but not by way of any relief and irrespective of whether it causes any benefit or harm to a party either suo motu or when the defect is brought to its notice. It is in this concept that the Full Bench approved Gaman and Safia's cases." The ratio deduced from the Division Bench judgment of S.Zahid Ali's case in Mst. Naghma Jabeen case was that in that case without taking into consideration the convenience and inconvenience of the parties it was quite clear that "suit filed before Family Courts cannot be transferred under section 24 of the Civil Procedure Code nor there is any provision in the Family Courts Act. The absence of any such provision in any law was likely to create difficulties in the administration of justice because circumstances may arise where proper adjudication and justice is necessary that a suit be transferred from one Court to another". In the circumstances, Article 203 of the Constitution was invoked and the suit of Muhammad Yaqoob was ordered to be transferred to the Court at Karachi where the suit of Mst. Naghma Jabeen was pending.

8. In the instant case too, the respondent/husband had claimed the relief of restitution of conjugal rights at Haripur whereas the wife/petitioner had sued the husband at Abbottabad for payment of dower and maintenance for herself and her minor child. If both the suits are left to proceed at the places of their institution then there is every likelihood of two contradictory decrees which would frustrate rather advance the cause of justice, apart from the inconvenience of the wife to attend the Court at Haripur and for the husband to visit Abbottabad. Since the petitioner is a female with suckling baby, while the respondent is male would be put to bear inconvenience as compared to his wife and the minor child.

9. This being so and in the absence of any provision in the Family Courts Act, 1964, or any other law for the time being in force to enable the High Court to transfer Family Court case from one Court to another, it is likely to create a lot of difficulties and inconvenience to the parties to such litigation. The absence of such a provision in a statute is tantamount to denial of justice to the parties. In consequence, Article 203 of the Constitution shall have to be invoked by way of an enabling provision in order to alleviate the genuine hardship to one party.

10. In the light of what has been discussed above, I allow the petition, order the transfer of Suit No. 5/FC brought by Khalid Mahmood, respondent against Mst. Rozina Ashraf/petitioner to the Court of Senior Civil Judge, Abbottabad, for either its parallel or consolidated trial with the suit of Mst. Rozina Ashraf pending decision in the said Court. Before parting; I am inclined to suggest to the Provincial Government that suitable amendment in the West Pakistan Family Courts Act (XXXV of 1964) may be made so as to empower this Court to transfer within the Province of North‑West Frontier a family suit from one Family Court to another as incorporated in the Punjab by addition of section 25‑A thereto. AA/1488/P Case transferred