P L D 1978 Lahore 711 (PLP)

"It is pertinent to note that no provision has been made in the Act and the Rules for joining L. Rs. on the death of a party and the provisions of C. P. C. cannot be imported because of clear bar. The purpose behind this appears to be that this special forum was provided for suite between husband and wife only. If L. Rs. have to file suit for recovery of dower debt they may file the same before a Civil Court."

6. The District Judge observed "to recover a dower a aright in personam and a suit for this purpose can be filed by the wife".

7. The Family Courts Act, 1949 (hereinafter referred to as the Act) is no doubt, a special statute and provides a forum and a self-contained procedure for the adjudication of certain disputes. The preamble of the Act proves for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith". Party has been defined in section 2 subsection (1) clause (d) to "include any person whose presence as such is considered necessary for a proper decision of the dispute and whom the Family Court adds as a party to such dispute". Subsection (Z) of the same section provides that "words and expressions used In this Act but not heroin defined shall have the meanings respectively assigned to them In the Code of Civil Procedure, 1908". The Family Courts have been conferred by section 5 "exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule". The Schedule lists the following matters and ad seriatim :- "(1) Dissolution of marriage. (2) Dower. (3) Maintenance. (4) Restitution of conjugal rights. (5) Custody of children. (6) Guardianship. (7) Jectitation of marriage. The exclusion of jurisdiction on these matters Is total and complete except for the provisions of Muslim Family Laws Ordinance, 1961. Section 17 provides : "Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Code or Civil Procedure 1908 except sections 10 and 11 shall not apply to proceedings before any Family Court."

8. After reproducing the Items mentioned in the Schedule to the Act in Adnan Afazl's case (PLD 1969 SC 187) their Lordships of the Supreme Court observed : "From these provisions it is clear beyond any doubt that as from the 5th of April, 1966, when Judges of the Family Court became invested with powers of Magistrates of First Class, the only Court which had jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule, was the Family Court." and further that : "A comparison of these provisions indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without in any way diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters."

9. The matters specified in the Schedule are the subject-mattes of the suit or proceeding without any direct reference whatsoever to the party which Institutes the proceedings" There is in fact an irresistible indication e. g., in the case of factitation of marriage, that a person who claims to be a stranger, or is in fact a stranger can also maintain proceedings in Family Court. If as in this case the subject-matter of the proceeding is one which specified in the Schedule then the Family Court has the exclusive jurisdiction. It is an undeniable fact that Mst. Akhtar Saeeda Bano sought dower and had approached the appropriate forum for that purpose, and such a forum had the exclusive jurisdiction in-the matter.

10. As regards the second question. Mulla In Principles of Mohammedan Law reproduces the definition of dower as "a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage". It has further been observed "if the dower is not paid, the wife, and after her death, her heirs, may sue for it". In Baillie's Digest of Mohammedan Law or the subject of disputes with regard to dourer the following observations occur :- "Disputes regarding the dower may take place between the married parties themselves in their lifetime, on between their heirs when both are dead, or after the death of one of them, between his or her heirs and the survivors"

11. In the Mohammedan Law of Inheritance by Almaric Rusay on the subject of posthumous claims of dower it has been observed :- "It has been seen already that the right to dower is not extinguished by the death of husband or wife or both and it is in fact distinctly laid down that a claim of dower may be maintained by the wife against the husband's inheritors, by the wife's inheritors against the husband, or by the wife's inheritors against the husband's inheritors"

12. It is clear, therefore, that the right to sue survives the death and the heirs can continue the proceedings and their claim in the proceedings continues to be for the dower.

13. It is the third question which presents some difficulty. Section 17 of the Act as originally framed provided "Save as otherwise expressly provided by or under the Act, the provisions of the Evidence Act, 1872, and the Code of Civil Procedure, 1908 shall not apply to proceedings before any family Court". After its amendment by Act XY of 1967 it reads :- "Save as otherwise expressly provided by or under this Act, the provision of the Evidence Act, 1872 and the Code of Civil Procedure, 1908s except section 10 and It, shall not apply to proceedings before any, Family Court." The object of this provision is not to restrict the powers of the Family Court in the matter of reception of evidence or to limit its procedure while trying matters specified in the Schedule, but to enlarge their powers and to make procedure more beneficial with a view to achieve speedy and substantial justice. For example, on the strength of this provision, a party cannot get excluded from evidence facts of which the Court is required to take judicial notice, presumptions as to documents, or presumption of the existence of certain facts simply because the provisions, therefore, are contained in the Evidence Act which has been made inapplicable. Similarly, where in matter the Family Court has the exclusive jurisdiction, and the right to sue survives the substitution of the heirs cannot be refused on the ground the, provision for it exists in Civil Procedure Code and those provisions have not been made applicable to Family Court. Such an approach amounts to refusal to exercise jurisdiction vested in the Court, and may lead to manifest Injustice.

14. In the case of Mst. Bibi Lal Bibi v. Mir Baluch Naz (P L D 1962 Quetta 28) a Division Bench while considering a similar objection in respect of provisions of Dastur ul Amal Division Kalat, held that in the absence of any bar "on the administration of justice this procedure must be considered to be inherent in any proceedings before a civil Court."

15. This, however, is not the end of the matter, for the appeal before the District Judge was held to be barred by time. The matter was one in which an appeal was competent under section 14 subsection (1) of the Act. With this appeal an application for condonation of delay had been filed The sufficiency of the grounds, which was primarily a question of fact, w P examined by the Appellate Court. I will not, in exorcise of powers under Article 102 of the late Constitution or 285 or the interim Constitution, review such a finding of fact with a view to interfere with it, besides, the reasons given for recording the finding of fact are neither perverse nor extraneous. That finding therefore cannot be interfered with. The result is that the application is dismissed. In the circumstances parties are left to bear their own costs. S. A. H. Application dismissed