2002 PLP 1758 (MLD)

(e) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑ ‑‑‑‑S.13(4)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Execution of decree passed by Family Court‑‑‑Detention of judgment‑debtor in civil prison for one year‑‑‑Family Court sent the petitioner/judgment‑debtor to civil prison for one year‑‑‑On account of non‑payment of decretal amount‑‑‑Validity‑‑‑Family Court being Executing Court was empowered under S.13 of West Pakistan Family Courts Act, 1964 to order for recovery of decretal amount otherwise than as arrears of land revenue‑‑‑Petitioner could be detained for one year and the orders being passed within the ambit of S.13 of the West Pakistan Family Courts Act, 1964, were not open to challenge in the Constitutional jurisdiction‑‑‑Petition was dismissed in limine. 1986 CLC 2381; Muhammad Ramzan v. Mst. Afshan Kanwal and others 1991 CLC 1823; Lal Muhammad and another v. Mst. Niaz Parwara PLD 1970 Pesh. 52; Nasir Khan v. Tahira Rashida 1986 CLC 2381 and Qurban Ali Khan v. IV Civil and Family Judge (Central), Karachi and another PLD 1993 Kar. 159. ref. Mirza Hafeez ur Rehman for Petitioner Brief facts of the instant writ petition are that respondent No.2 judgment‑debtors' wife and respondent No.3 minor girl filed suit for recovery of maintenance against the petitioner at the rate of Rs.2,000 and Rs.3,000 and also demanded past maintenance from May, 1997 onward. Suit was contested by the petitioner/defendant and vide judgment and decree dated 25‑3‑2000 it was decreed to the extent of Rs.1,000 per month from 22‑4‑1998 and future maintenance to the minor at the rate of Rs.1,000 per month. Suit for maintenance to the extent of Mst. Fauzia Bashir was disallowed. An appeal was filed by the petitioner assailing the judgment and decree of the learned Judge Family Court but the same was dismissed vide judgment and decree dated 4‑9‑2000. The respondent No.2 filed an application for execution of the judgment and decree passed by the learned Judge Family Court. During execution proceedings the petitioner was sent to lock‑up for a period of one year on 1‑12‑2001 and he is still in civil detention on account of non-payment of maintenance to the respondent No.3.

2. The petitioner has assailed the orders of the learned Executing Court on the grounds that the detention of the petitioner is illegal as he is not mentally stable person as the provisions of Family Courts Act regarding grant of maintenance are borrowed from the provisions of section 488, Cr.P.C. (since repealed; that the learned Judge Family Court had no jurisdiction to order the civil prison to the petitioner for a period of one year, he could only be detained in civil prison with the orders of the Collector (1986 CLC 2381). Thus, the petitioner's detention in civil prison for a period of more than seven months is illegal, therefore, both the orders dated 4‑1‑2002 and 8‑12‑2000 passed by the learned Court below be declared to have been passed without lawful authority.

3. I have heard the learned counsel for the petitioner and perused the record. As far as the first objection raised by learned counsel for the petitioner that the learned Judge Family Court had no jurisdiction to order civil prison to the petitioner for one year, he could only be detained by the orders of the Collector is concerned section 13(1), (3) and (4) of the West Pakistan Family Courts Act, 1964 are reproduced as under:‑‑ (1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register; (2) Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, the same shall, if the Court so directs to recover as arrears of land revenue, and on recovery shall be paid to the decree‑holder; (3) The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order direct." The objection raised by the learned counsel for the petitioner that the learned Judge Family Court after assessing the same as arrears of land revenue could not act as a Collector is without substance as it is very clear section 13(4) of the West Pakistan Family Courts Act, 1964 that a decree shall be executed by the Court who has passed the same or by any such Civil Court as the District Judge may by special or general order direct. Family Courts Act, being Special Tribunals the Legislature has intended to circumvent the litigation between the parties as much as possible, therefore, the enforcement of decrees section 13 of the West Pakistan Family Courts Act, 1964 gives the learned Judge Family Court as executing Court vast powers. It may recover the amount under section 13(2) if the judgment‑debtor pays the money or any property is delivered to the decree‑holder then the learned Judge Family Court shall enter the fact of payment and delivery of property in the register. But if the decretal amount is not paid within the time specified by the Court (if the Court so directs to be recovered as arrears, of land revenue) that means that the Family Court has vast powers to assess the decretal amount recoverable as arrears of land revenue and direct the same to be recovered under‑ section 80 onward of the Land Revenue Act by himself or may forward the warrants to the Collector to recover the same as arrears of land revenue. The words are "to recover' as arrears of land revenue and the recovery shall be paid to the decree‑holder" therefore, just saying that the Family Court is not the executing Court under section 13(3) of the West Pakistan Family Courts Act, 1964 is completely incorrect. In this regard in "Muhammad Ramzan v. Mst. Afshan Kanwal and others" (1991 CLC 1823) it was held that in cases where decretal amount was directed to be recovered as arrears of land revenue, the execution petition had to be filed before the, Family Court which might forward the warrants to the Collector for recovering the money as arrears of land Revenue. It was further held in this judgment that under section 13 of the West Pakistan Family Courts Act, 1964 read with Article 199, of the Constitution of Pakistan 1973‑decree for maintenance‑‑‑Family Court had jurisdiction to execute such decree and objection that such decree could only be executed as arrears of land revenue by Collector was not proper or legal, "Lal Muhammad and another v. Mst. Niaz Parwara" (PLD 1970 Peshawar 52) and ' Nasir Khan v. Tahira Rashida" (1986 CLC 2381) were referred in this judgment. In "Qurban Ali Khan v. IV Civil & Family Judge (Central), Karachi and another" (PLD 1993 Karachi 159) it was held that power of Family Court under section 13 of the West Pakistan Family Courts Act, 1964 could not be restricted to recover the decretal amount only as arrears of land revenue in a money decree, but the wide power conferred on the Court in the matter of execution of the other decrees of Family Courts, is to be extended to money decrees also.

4. Bare reading of section 13(4) of the West Pakistan Family Courts Act, 1964 discloses that decree is to be executed by the Court who has passed that decree, it means that the executing Court by all means will be the Family Court, which can direct the payment of money, assess the decretal amount to be paid as arrears of land revenue and adopt coercive measures as prescribed under the provisions of section 80 onward of the Land Revenue Act, stop the proceedings C give time to the judgment‑debtor to pay and satisfy the decretal amount, .may direct the decree to be paid in such instalments as it deems fit, means that Family Court as executing Court has vast powers.

5. Family Court is a Civil Court and the decree of maintenance being a money decree, arrest and detention is prescribed under section 55, C.P.C., which is reproduced below:‑‑ "A judgment‑debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court (which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year.)" This provision is provided where the decree in execution is a decree for payment of money. In the present case the statement of judgment‑debtor shows that he is desperately unwilling person to satisfy the decree of maintenance granted by learned Judge Family Court and confirmed by the learned Appellate Court. Under section 13 of the West Pakistan Family Courts Act, 1964 the Family Court has powers to adopt procedure for satisfying the decree granted by it, as section 13(3) starts with the words "where a decree relates to payment of money and decretal amount is not paid within the time specified by the Court" and 4hen the words "if the Court so directs". In section 13(4) it is also provided that decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may by special or general order direct, therefore, the Family Court being executing Court is also empowered as a executing Court to order for recovery of decretal amount otherwise than as arrears of land revenue.

6. Therefore, the second objection raised by the learned counsel for the petitioner is also not convincing that petitioner could not be detained for one year, the orders being passed within the ambit of section 13 of the West Pakistan Family Courts Act, 1964 are not open to challenge in the Constitutional jurisdiction writ petition is dismissed in limine. Q.M.H./M.A.K./T‑96 Petition dismissed.