1988 PLP 1641 (CLC)

(c) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 199‑‑West Pakistan Family Courts Act (XXXV of 1964), S.7‑ Constitutional jurisdiction, exercise of‑‑‑Correct issue about service of notice not framed by Court‑‑Effect‑‑Real issue in controversy having not been framed and petitioner having been deprived of opportunity to defend against suit for restitution of conjugal rights by husband, case was remitted by High Court to Trial Court for trial of omitted issue. Muhammad Zaman for Respondent. This writ petition has been filed to call in question the decree for restitution of conjugal rights passed by a learned Family Court against the petitioner on 4‑6‑1975. Her appeal under section 14 of the Family Courts Act was dismissed on 3‑1‑1976.

2. The case of the petitioner was that she having been duly divorced as a result of an agreement and oath mentioned in the divorce deed (copy D.1), the respondent's suit for restitution of conjugal rights could not proceed. The solitary issue framed on this question by the learned trial Court was 'whether the plaintiff has already divorced the defendant vide divorce deed, dated 16‑7‑1973'. Neither the learned trial Court nor the learned Appellate Court gave any finding against the claim of the petitioner that she had been divorced through the deed, dated 16‑7‑1973. It can, therefore, be safely presumed that she succeeded in establishing before the learned Courts below that the respondent had, generally speaking, divorced, the petitioner on 16‑7‑1973. In other words, her version regarding the background of the divorce was accepted. One obvious corollary as a result of this acceptance of the petitioner's version qua actual divorce would have been the dismissal of the suit for restitution of conjugal rights filed by the respondent. But the learned Courts below held that the petitioner had failed to prove another essential fact, namely, that a notice of divorce was in fact sent to the Union Committee in accordance with the provisions contained in section 7 of the Family Laws Ordinance. And because, according to the findings of the learned Courts below, she had failed to prove the factum of the service of notice, therefore, according to them, the Talaq had not become effective.

3. The petitioner placed on the record of this petition the original certificate issued by the Secretary of the Union Committee concerned, dated 6‑1‑1976 showing that a notice of Talaq issued by the respondent against the petitioner was entered in the register of Talaq of the Union Committee concerned at page No.3, Serial No. 25 on 20‑7‑1973. The divorce deed is dated 16‑7‑1973. Although this certificate of Talaq, it appears, was not placed on the record of either of the two Courts below, it is not denied that a copy of the notice of Talaq mentioned in this certificate was placed on the record of the learned trial Court. Learned counsel for the respondent asserts that notwithstanding the fact that copy of such a notice was placed oh the record of the trial Court, it was not duly proved and exhibited in accordance with law, therefore, it could not have been taken note of by the learned trial Court.

4. There was no issue on the question of fact relating to the sending of the notice to the Union Committee by the respondent. Issue No. 2, as framed could mislead the petitioner (wife). It included the controversy regarding the existence or otherwise of a divorce deed, dated 16‑7‑1973. The issue was not as comprehensive and clear so as to give notice to the petitioner that it also included the other factual controversy, namely, whether a notice of Talaq had been sent by the respondent to the Union Committee. This obviously prejudiced the case of the petitioner in so far as the opportunity of defence against suit for restitution of conjugal rights is concerned. Otherwise there is no reason why a certificate regarding Talaq proceedings before the Union Committee, which was obtained three days after the dismissal of the petitioner's appeal, would not have, been obtained earlier and placed on record. Similarly, if this aspect would have been the subject‑matter of a specific issue, there is no reason why the 1?etitioner's counsel would not have formally proved the notice of Talaq which was placed on the file of the learned Family Judge. Thus, in this case, on account of wrong issue, the petitioner has been denied due opportunity of defence in the suit for restitution of conjugal rights.

5. Learned counsel for the respondent contends that it was the duty of the petitioner, as defendant, to formally prove the documents placed on record of the learned trial Court and if the trial Court failed to notice any document as evidence on the file, it did not act without lawful authority. I do not agree with the learned counsel. The proceedings before a Family Court are both adversary as also inquisitorial. If, for any reason, may be on account of the act of that Court or otherwise, through innocent mistake, a party fails to perform a technical act, it is the duty of the Court to make necessary enquiry, if the question is of substantial nature. In this case, apart from the, petitioner it was the duty of the learned Family Judge also to frame correct issues and also to take note of any material lying on his own record in connection with a question of real controversy between the parties. Moreover, the technical rules of Evidence Act do not, in B terms, apply to the proceedings before the Family Courts. The objection raised from the respondent side is of hypertechnical nature. It is in this behalf, important to note that the existence of entry in the register of Union Committee concerned as mentioned in the certificate (Annexure 'C/1'), has not been formally denied as a fact in this) Court. This petition was moved in 1976. Annexure 'C/1' was appended therewith at the time of the institution. The respondent had ample) time and opportunity to make enquiries from the Union Committee concerned. If the certificate was fake or the entry in fact did not exist, the respondent could have obtained a certificate to that effect in order to contradict the petitioner in this behalf. The writ petition is supported by an affidavit and in view of no clear denial on the question of fact in this behalf nor there being any counter‑affidavit the genuineness of the certificate cannot be doubted.

6. In view of what has been stated above, this petition is allowed. The impugned judgments are set aside as without lawful authority and without any legal effect. The case is remitted to the learned Family Judge (trial Court) for trial of the omitted issue, namely, whether the notice of Talaq was sent to the Union Committee No. 2, Bahawalpur Cantt. by the respondent and if so, with what consequence and effect. There shall be no order as to costs. A.A./A‑359/L Petition accepted.