1981 PLP 395 (SCMR)

NASIM HASAN SHAH, J.-The question which arises in this petition for leave to appeal is whether it is obligatory for the parties to be personally present on each date of hearing in the proceedings under the Family Courts Act, 1964. The parties, who are husband and wife, were married on 23-4-1978. However, only after about a month of the marriage the husband left for Abu Dhabi leaving the wife with his aunt. It is stated that she was not treated properly by her, who ultimately turned her out. She; therefore, on 10-8-1978, filed a suit for dissolution of her marriage before the Family Court, Peshawar. Some pre-trial reconciliation proceedings were held by the learned Family Court Judge which proved abortive. The suit, therefore, proceeded on the merits. In the meanwhile, the husband left the country and again went back to Abu Dhabi. The petitioner-wife filed an application that the respondent-husband should be present before the Court as it was obligatory under the Family Courts Act that he should be present on each date of bearing. This application was dismissed by the learned Family Court Judge by his order dated 31-3-1980 who held that the respondent could be represented through his agent/counsel during the proceedings. The petitioner filed an appeal before the Additional District Judge, who, on the merits, appeared to have been of the view that the contention raised by the petitioner, namely, that the respondent should be present before the Court on each date of bearing appeared to be correct but, however, as he could not entertain an appeal against an interlocutory order dismissed the same on the said ground. The petitioner, therefore, invoked the constitutional jurisdiction of the High Court by filing a writ petition (W. P. No. 594/80) which also failed. Hence this petition for leave to appeal. The learned agent of the petitioner, who is also her father, in support of his plea relied mainly on section 1S of the West Pakistan Family Courts Act, 1964, which provides

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18. Appearance through agents.-If a person required under this Act to appear before a Family Court, otherwise then as a witness, is a Pardanashin Lady, the Family Court may permit her to be represented by a duly authorised agent." He argued that according to this provision, it is only pardanashin lady, who can be permitted to be represented by a duly authorised agent. Hence the order of the Family Court allowing the respondent to be, represented by an agent/counsel is against the provisions of the Family Courts Act. A similar contention was raised in the case of Khalid Mahmood Syed v. Razi Abbas Bokhari, Judge, Family Court, Lahore and another (P L D 1979 Lah. 217 ), wherein it was held that the personal attendance of the parties in Court was not indispensable and a party could be represented by an agent/counsel. In this connection it was observed that the provisions of section 18 which enable the Court to permit an authorised agent to represent a pardanashin lady does not in any manner take away the right of a counsel to appear and act for and on behalf of his client. Such a right is recognized by section 22 of the Legal Practitioners and Bar Councils Act, 1973 and it is by virtue of that provision that he is "entitled to appear or act" for his client. We are inclined to agree with the view taken in the aforesaid judgment. Moreover, as observed by the learned Family Court Judge, the defendant (respondent herein) had appeared at the outset, submitted his written statement and also remained present when the date was fixed for reconciliation and, therefore, had fulfilled his obligation under the provisions e of the Act. Furthermore to insist on his personal presence would necessarily dewy the conclusion of the suit which has already been considerably delayed (considering that it was filed on 14-10-1978 and is still pending even though more than two years have elapsed since it was instituted). We would, therefore, while dismissing this petition, observe that the learned Family Judge will now proceed to dispose of the suit in the light of whatever evidence is led before hint .by the parties and conclude the matter as expeditiously as possible. Petition dismissed.