1997 PLP 2173 (MLD)

Khawaja Aziz‑ud‑Din for Respondents. Through this appeal the appellant has called in question the validity of the judgment and decree of the Family Court, 'Rawalakot dated 30‑11‑1994, whereby the suit of the appellant was dismissed.

2. The precise facts forming the background of the instant appeal are that the appellant brought a suit for jactitation of marriage against the respondent before Sub‑Judge, Abbaspur. On the creation of the Family Court, this suit was transferred to the Family Court, Rawalakot. The learned Family Court vide order dated 30‑11‑1994, dismissed the suit on the ground, that the Family Court has no jurisdiction. The instant appeal has been filed against the order of the trial Court.

3. Mr. Samshad Ali Khan, the learned counsel for the appellant argued that no doubt under section 5 of the Family Courts Act. The Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule. Although the Schedule does not contain the suit for jactitation of marriage, but the basic object of the Family Courts Act was expeditious settlement and disposal of the disputes relating to the family affairs. The suit for jactitation of marriage comes within the ambit of family affairs, therefore, this suit as cognizable by the Family Court.

4. While controverting the arguments of the learned counsel for the appellant, the learned counsel for the respondents, Kh. Aziz-ud‑Din, contended that the judgment and decree of the Family Court is based on sound and cogent reasonings and warrants no interference.

5. I have heard the learned counsel for the parties and perused the relevant record and given my utmost muse .to the respective arguments advanced by the learned counsel for the parties.

6. The question which requires determination in the instant case is, whether the Family Court was competent to take the cognizance of a suit for jactitation of marriage? No doubt section 5 of the Family Courts Act contains that the Family Court shall have the exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule. The Schedule of the Family Courts Act does not contain the suit for jactitation of marriage. Now the question emerges that when the Schedule of the Family Courts Act does not contain the suit for jactitation of marriage, then how the Family Court was competent to take the cognizance of a suit for jactitation of marriage? While interpreting a statute, the Court has to see the intention and basic purpose of the legislation, because the legislative purpose is the reason for which the particular enactment is made. The basic purpose of the legislation plays an important role in the interpretation of statute as stated in the Crawford's book, Interpretation of Law, page 248, which reads as under:‑‑‑ "The Legislative purpose. ‑‑‑Naturally, the legislative purpose is the reason why the particular enactment was passed by the Legislature. Perhaps the reason was to remedy some existing evil, or to create a new right or a new remedy. Consequently, in seeking to ascertain the legislative purpose, the Court will resort, among other things, to the circumstances existing at the time of the law's enactment, to the necessity for the law and the evil intended to be cured by it, to the intended remedy, to the law prior to the new enactment, and to the consequences of the construction urged. "

7. The basic purpose of the Family Courts Act, was to establish the Family Court for expeditious settlement, disposal of disputes relating to the, marriages and family affairs and the matters connected therewith. The Family Courts Act was enacted only for expeditious disposal "of the disputes relating to the marriages and other family affairs. This purpose of the legislation also transpires from the preamble of the Family Courts Act which reads asunder:‑‑‑ "Whereas it is expedient to make provision 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." The preamble of a statute is simply a prefatory statement at its beginning, following the title and preceding the' enacting clause, explaining or declaring the reasons and motive for, and the objects sought to be accomplished by the enactment of a statute and should be resorted to unlock the mind of its makers.

8. The preamble of the Family Courts Act, pretends that the Family Courts Act was enacted for expeditious settlement and disposal of matters relating to the marriage and family affairs and other matters connected therewith. The suit for jactitation of marriage is also one of the matter connected with the dispute relating to the marriage, family affairs, therefore, it was also cognizable by the Family Court. Inadvertently, the suit for jactitation of marriage could not be in‑corporated in the Schedule, but subsequently, the Schedule was amended and the suit for jactitation of marriage was also incorporated in the Schedule through the Act of Assembly, therefore, the suit for jactitation of marriage was cognizable by the Family Court and the learned Family Judge has wrongly dismissed the suit.

9. It is also pertinent to note that this suit was not filed before the Family Court but it was filed before the Sub‑Judge and the learned Sub‑Judge, referred the suit to the Family Court, if at all the Family Court was not having the jurisdiction, then the Family Court should have not dismissed the suit, but should have sent it back to the learned Sub‑Judge.

10. The nutshell of the above discussion is that this appeal is accepted and the judgment of the Family Court dated 30‑11‑1994, is hereby set aside and the case is remanded to the Family Court with the directions that the Family Court shall decide the case on merits. A.A./29/Sh.C.(AJ&K) Case remanded.