By this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner seeks a - declaration to the effect that the order dated 14-6-1978 passed by respondent No. 1, in the suit for dissolution of marriage is without lawful authority and further prays that direction be issued to the respondent to procure the presence of the respondent No. 2 in person for the purposes of pre-trial statement under section 10 of the Family Courts Act; 1964, as she is not a pardohnashinlady.
2. It appears that the petitioner had taken the following objections before the trial Court : "(1) That the suit is barred by principle of res judicata as the previous suit filed by the plaintiff was dismissed by Mr. Sakhi Muhammad Kahoot, Judge, Family Court, Lahore, vide his judgment dated 17-12-1977.
(2) That the suit cannot proceed as the plaintiff is herself not present in Lahore, to pursue the suit, as her presence is utmost essential being not a pardahnashin lady.
(3) That the grounds for being not present in Pakistan to pursue the case herself by the plaintiff cannot change the law of land, therefore, the suit could be dismissed on the preliminary objection"
3. The first grievance of the petitioner is that the respondent No. 1 fixed the case for arguments on the preliminary objections instead of framing the issue as to whether the personal attendance of the respondent No. 2 was necessary. It is, however, conceded that the respondent No. 2 is in America and apart from her an authorised Agent was represented by her counsel.
4. The Family Courts Act, 1964 is an enactment intended to provide expeditious disposal of matrimonial disputes, the provisions of the Evidence Act and the Code of Civil Procedure are not applicable to the proceedings under the Act. The procedure of the Court is to be regulated by the provisions of the Act, the rules framed thereunder and the exercise of fair judgment and discretion of the Family Court. The learned counsel for, the petitioner is unable to show that in omitting to frame the issues the respondent No. 1, acted against the letter of law or was unfair to him. All the objections taken were properly considered and disposed of by a speaking order.
5. The learned counsel for the petitioner maintains that section 10 of the Family Courts Act enjoins the Family Courts to enforce the "personal attendance" of the parties and try to effect a compromise before framing the issues.
6. He asserts that the provisions of subsection (3) of section 10 lay down that at the pre-trial hearing the Court "shall" ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties and cast a duty on the Court to enforce "personal" attendance of the parties and then to attempt to effect a compromise. He maintains that failure to enforce personal attendance of the parties would render all subsequent proceedings as illegal.
7. There is nothing in the language of subsection (3) of section 10 t suggest that "personal attendance" of the parties must be enforced in the Courts to effect the compromise or the reconciliation between the party and even if the Courts may choose to prefer to examine the parties personally, there is nothing in subsection (3) to suggest that the personal attendance o the parties would be indispensable. The relevant provision reads as follows "At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible."
7-A. - It is not the petitioner's case that no pre-trial hearing was held or that the learned trial Court did not intend to attempt any compromise or reconciliation. It seems to me that it was the petitioner who was objecting to the pretrial proceedings for a compromise on the ground that such proceedings could only be held after `procuring' the personal attendance of respondent No. 2.
8. There is lengthy discussion about the question whether the provisions of subsection (3) of section 10 of the Family Courts Act, 1964 are mandatory or directory. I am inclined to agree that these provisions are directory) provisions but even the directory provisions cannot be regarded as mere surplus age worthy of no notice and would need substantial compliance and cannot be ignored. I however feel that the real question arising in this behalf is whether the provision of subsection (3) of section 10 at all requires personal appearance of the parties.
9. In support of the proposition that personal attendance of plaintiff respondent No. 2 could not be dispensed with, the learned counsel relies on the provisions of section 18 which reads as under : "If a person required under this Act to appear before a Family Court otherwise than as a witness. Is a pardahnashin lady the Family Court may permit her to be represented by a duly authorised agent."
10. Section 18 of the Act empowered the Court to permit any "person required under the Act to appear before the Family Court to be represented by an authorised agent". The section by itself does not cast any obligation on any person to put in appearance. On the contrary it is an enabling provision which invests the Court with powers to dispense with the legal "requirement" in relation to appearance by any person and to admit that person to be represented through an authorised agent. The occasion for exercise of powers Under section 18 would, therefore, arise only if it is shown that any person is "required" by any of the provisions of the Family Courts Act, 1964 to appear before the Court and that person being a pardahnashin wises to appoint an authorised agent.
11. I have repeatedly asked the learned counsel to show that subsection (3) of section 10 or for that matter any other provision of the Family Courts Act, 1964 "requires" the plaintiff respondent to appear in person. He has not been able to point to any provision in this case.
12. Having carefully gone through the enactment myself I find that the only provision whereby the Act "requires" a party to put in appearance may be found in section 9. Under this section the defendant alone comes under the obligation to put in appearance and this provision may rightly be construed as "requiring" the defendant to appear. It may, however, be remembered that in this case the respondent No. 2 was a "plaintiff" and not a "defendant" and section 9 does not. Have any application to her case.
13. Having considered the matter carefully I have come to the conclusion that only the defendant when a she is a lady may come within the mischief of being "required" by law to put in appearance.
14. The provisions of section 18 which enable the Court to permit an authorised agent to represent a pardahnashin 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 recognised 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. The appearance by the counsel would, therefore, in my opinion, constitute a sufficient discharge of the obligation of the party to appear. The language of rule 12 of the Family Courts Rules, 1965 further lends support to my view. . Under the rule a suit may be dismissed for default if a plaintiff or his pleader makes default in appearing.
15. The objection that the suit is barred by the ;principle of res judicata has not been pressed.
16. Before l close I may also refer to an objection taken by the learned counsel for the petitioner as to the vlres. Of rule 4(1) of the West Pakistan Family Courts rules which expressly permits the plaintiff to present a plaint through the counsel. If the plaintiff be a female she may present it through her agent. The provisions of subsection (1) of section 7 and section 26 confer. The authority in the Government to frame rules of procedure. As explained above the rules for appearance of the counsel and the agent on behalf of the plaintiff are not repugnant to any of the provisions of the Family Courts Act, 1964. The objection of. The learned counsel for the petitioner in this behalf also is devoid of any merit. .
17. 1 am of the opinion that the petition, has no meritand, therefore, is dismissed in limine. , ,