SHEIKH AZMAT SAEED, J.--- This constitutional petition is directed against the appellate judgment and decree, dated 25-4-2002 whereby the appeal filed by the petitioner against the judgment and decree, dated 23-7-2001 was dismissed.
2. Brief facts leading to the filing of this constitutional petition are that respondents Nos.1 and 2 filed. a suit for recovery of dowry articles before the Family Court, Lahore. It was alleged in the plaint that on 5-10-1992 Mst. Sabahat Sharif, daughter of respondents Nos.1 and 2, was married to Mobeen Sharif, son of the petitioner. At the time of marriage, various dowry articles were given by the said respondents to their daughter. On 6-8-1997, the spouses were travelling from Islamabad to Lahore when their car was fired upon and fell into a pond. Both the spouses are stated to have died. It was contended that deceased spouses used to reside at the ancestral house of Mobeen Sharif along with the petitioner, where the dowry articles were stored. The petitioner declined to return the same to respondents Nos. 1 and 2, who were the only legal heirs of their deceased daughter. The suit was resisted by the present petitioner, who in her written statement raised the objection that the suit was not competent, and further accused the respondents of having arranged the death of her son.
It was also contended in the written statement that in fact the son of the petitioner had died after the death of the daughter of respondents Nos.1 and 2. On the divergent pleadings issues were framed and the parties were put to evidence. Respondents Nos.1 and 2 got their evidence recorded before the Family Court whereafter the case was fixed for evidence of the present petitioner. It appears from the record that statement of the petitioner was recorded, and during the course of her cross-examination she was confronted with a video recording of the marriage of the deceased spouses, at which point of time, she walked out from the Court and boycotted the proceedings. The cross-examination could not be completed. In the circumstances, her statement was not read in the evidence. No further evidence was produced by the petitioner, eventually, the Family Court vide its judgment, dated 23-7-2001, decreed the suit, in favour of respondents Nos.1 and 2. Aggrieved the present petitioner filed an appeal under section 14 of the Family Courts Act, 1964, which failed to find favour and was dismissed vide the impugned appellate judgment and decree, dated 25-4- 2002.
3. Learned counsel for the petitioner as well as respondents Nos.1 and 2 has been heard and the record appended with this petition has also been perused.
4. It is contended by learned counsel for the petitioner that the Family Court had no jurisdiction to entertain or decide the suit, inasmuch as, the said Court only has the jurisdiction to entertain a suit for recovery of dowry articles filed by a were and not by her legal heir. It is further contended that respondents Nos.1 and 2 should have invoked the jurisdiction of a Civil Court. The learned counsel further contends that as the value of the dowry articles claimed exceeds rupees five thousand which is a violation of sections 3 and 9 of the Dowry and Bridal Gifts (Restrictions) Act, 1976, hence the suit could not be decreed. It is further contended that the petitioner was not granted a full opportunity of hearing. Adds that the matter of the legal heirs of deceased daughter of respondents Nos.1 and 2 is yet to be adjudicated upon, and this aspect has been ignored by the Courts below. In support of the contentions raised on behalf of the petitioner a reference has been made to an inter-party judgment dated 7-6-2002 passed in Civil Revision No.779 of 2000 arising from issuance of a succession certificate. In support of his contentions the reliance has also been placed on the cases reported as Syed Mehdi Hassan Shah v. Mst. Sheedo Bibi PLD 1962 SC 291 and Muhammad Suleman Malik v. Rai Trust Corporation of Canada PLD 1983 Kar. 382.
5. The contentions raised on behalf of the petitioner has been controverted by the counsel for respondents Nos.1 and 2. It is contended that any alleged violation of the said provisions of the Dowry and Bridal Gifts (Restrictions) Act, 1976 does not debar a suit for recovery of dowry articles. It is further contended that the suit was filed for recovery of dowry articles, and hence, the Family Court had the exclusive jurisdiction to entertain and adjudicate upon the suit. Adds that a full opportunity of hearing was granted which the petitioner deliberately chose not to avail of, hence cannot raise any grievance in this behalf at this stage. It is further contended that the contentions raised at the bar are at variance with the defence taken in the written statement, more particularly, that the contentions of respondents Nos. 1 and 2 in the plaint that they were the only legal heir of their deceased daughter has not been specifically denied hence the matter as to which of the spouses, died earlier, is irrelevant and alien to the lis. It is also contended that all matters arising from the lis had been decided on the basis of the evidence on the record. In support of his contentions, the learned counsel has placed reliance on the cases reported as Khan Asad Ullah Khan and others v. Sheikh Islamud Din 'PLD 1978 Lah. 711; Manzoor Ahmad v. Muhammad Nawaz Siddiqui PLD 1975 Lah. 739 and Muhammad Tazeel v. Mst. Khair-un-Nisa 1995 SCM R 885.
6. Reverting first to the question of jurisdiction of the Family Court to entertain and adjudicate upon the suit filed by respondents Nos.1 and 2. A Family Court is constituted and established under the Family Courts Act, 1964 and the jurisdiction thereupon is conferred under section 5 thereof which reads as follows:-- "5. Jurisdiction.--- Subject to provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 161, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule." "Emphasis supplied."
7. An examination of the aforesaid provision of law reveals that the jurisdiction vested in the Family Courts is determined on the basis of the subject-matter and not on the basis of the persons, permitted or entitled to invoke such jurisdiction. There is no provision in the said Act, which identifies the persons entitled to initiate the proceedings before the Family Courts, which have the exclusive jurisdiction to adjudicate upon the matters mentioned in the schedule. The said schedule framed under section 5 of the Act (ibid) includes dowry at Serial No.8. Said provision of law i.e. Section 5 of the Family Courts Act, 1964 has come up for interpretation before this Court and in respect thereof, it was held in the case reported as Manzoor Ahmad v. Muhammad Nawaz Siddiqui and others PLD 1975 Lah. 739 as under: "... The mere fact that it is being claimed by the hel'rs of the deceased were does not detract anything from its real character. The various items of the Schedule reproduced above referred to true nature of the subject-matter of a suit and not the person who may file or institute it."
Emphasis supplied.
8. Similarly in a case reported as Khan Asadullah Khan another v. Sheikh Islamud Din PLD 1978 Lah.
711 at 714 it has been held as under:- "(9) The matters specified in the Schedule are the subject-matter 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 jactitation 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 is 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." Emphasis supplied.
9. In view of the above, it is obvious that the scheme of the law as is evident from its provision and its interpretation by this Court in the judgments referred to above that the jurisdiction of a Family Court is determined by the subject-matter of the suit, and not by the persons entitled to invoke the jurisdiction. Any suit of a subject-matter mentioned in the Schedule can be instituted before a Family Court. In the instant case, the factum of filing of suit for recovery of dowry articles finds mention at the Serial No.8, therefore, the Family Court would have jurisdiction to adjudicate upon the matter especially, as it is not the case of the petitioner that the right to sue does not survive the death of the were hence a Family Court had the jurisdiction to adjudicate upon the suit filed by respondents Nos.1 and 2.
10. The contentions of the learned counsel for the petitioner with reference to the alleged violation of the Dowry and Bridal Gifts (Restrictions) Act, 1976 are also misconceived. The contentions raised are contrary to the unequivocal dictum of the apex Court as laid down in the case reported as Muhammad Tazeel v. Mst. Khair-un-Nisa 1995 SCM R 885 wherein it has been held that the .Provisions of the said Act are to be enforced by the Authority mentioned therein and such alleged violation will not debar a suit for recovery of dowry articles
11. As regards contentions of the learned counsel for the petitioner that respondents Nos.1 and 2 were not the sole legal heirs of their deceased daughter as allegedly the petitioner's son died after the death of daughter of respondents Nos.1 and 2, suffice it to say that the instant case, no evidence in respect thereof was on the record, hence no exception to finding returned by the Family Court or the appellate Court can be taken. With regard to the judgment of this Court dated 7-6-2002, the matter pertaining to the instant suit has been dealt with in the following terms: "The learned counsel for the petitioner also submitted that a suit for recovery of dowry articles including jewellry, filed by the petitioner has already been decreed by the Family Court and appeal of respondent No.3 has already been dismissed. He submits that the jewellry which formed part of the dowry of the daughter of the deceased is lying in the locker which was jointly held in the name of the two deceased persons. He expressed an apprehension that on the basis of the determination of the learned trial Court respondent No.3 may also claim share in the jewellery. It will be a question for the learned executing Court to decide if an when an application for execution of the decree for recovery of dowry items is filed by the petitioner."
12. In the above observations and the fact that there is no evidence in respect of the contentions raised on behalf of the petitioner to the allegations made in the written statement qua the respective time of death of the spouses, the contentions raised on behalf of the petitioner are totally misconceived.
13. In respect of the contentions of the learned counsel that a full opportunity of .Hearing was not given to her, suffice it to say that the petitioner herself along with her counsel walked out from the Court and boycotted the proceedings, an action, which was totally uncalled for and is alien to the judicial process. The petitioner cannot and should not be allowed to take advantage thereof. The petitioner herself refused to be subjected to the cross-examination and did not deliberately produce any evidence therefore, must face the consequences. In short, the contentions raised on behalf of learned counsel for the petitioner are wholly misconceived. This constitutional petition being destitute of any merit is hereby dismissed.