MUHAMMAD MUZAMMAL KHAN, J.--- Instant Constitutional petition assailed the judgment/order dated 6.7.2006 passed by the learned Additional District Judge, to be declared illegal, .Void and of no legal consequence, whereby case was remanded to the Trial Court/the learned Judge Family Court for fresh decision, after setting aside the ex-parte judgment/decree dated 24.3.2006.
2. Succinctly, relevant facts are the respondent No. 3 entered into a tie of marriage with petitioner No. 1 on 18.7.1999 against a prompt dower of Rs. 500/-, according to Muslim rites through registered Nikahanama. This wedlock gave birth to two male children but relations between the spouses did not remain cordial and resulted in separation. Respondent No. 3 was leading life of "Khana Damd" and left his abode' leaving her to reside with her parents Petitioner No. 1 filed a suit for dissolution of her marriage; maintenance allowance for herself and the minors and for recovery of gold ornaments allegedly removed by respondent No.3.
3. Respondent No. 3 being defendant in the suit filed by the petitioner No. 1 contested the same, by engaging Mr. Muhammad Aslam Javed, .Advocate and also appointed his real brother Muhammad lshaque as his special attorney who filed written statement controverting the narrations in the plaint. Pre-trial reconciliation proceedings failed, leading to decree for dissolution of marriage under Section 10(4) of the Family Courts Act, 1964 on the basis of Khula' vide judgment/decree dated 16.1 2006 and for the rest of the suit, issues were framed out of controversial pleadings of the parties and a date was fixed in the suit for recording :of evidence Muhammad ishaque ,special attorney of respondent No. 3 submitted affidavits to the effect that since respondent No. 3 was working in Kuwait, he did not remit maintenance allowance thus he cannot proceed -with the case. The learned Judge Family Court on 14.2.2006 directed the counsel for respondent No. 3 to make payment of interim maintenance at the rate of Rs. 8004 per month.
This order was not complied and respondent No. 3 was burdened with ex-parte decree dated 24.3.2006 allowing the petitioners to recover arrear of maintenance allowance with effect from 22.3.2005 and future maintenance at the rate of Rs. 800/- per month each with 10% increase per annum. Along with 15 tolas gold ornaments cr its value at the market rate.
4. Respondent No. 3 being aggrieved 'of the exparte judgment/decree dated 24..3.2006,, filed an appeal before the learned District Judge, where he succeeded , as his appeal was accepted and judgment/decree passed t., the learned Judge Family Court was set aside. The case was remanded to the learned Judge Family -Court on 6.7.2006 for fresh decision in accordance with law. Petitioner No. 1. Thereafter, filed instant Constitutional petition, with the relief encted above.
Respondent No. 3 in response to notice by this Court has appeared and was represented through his counsel.
5. I have heard the learned counsel for the parties and have examined the record. Decree for dissolution of marriage on the basis` of 'Khula' dated 16.1.2006 was kept in tact by the Court of appeal but the ex-prate decree dated. 24.3.2006 was set aside on the ground that defense of respondent' No. -a was not struck due to non-payment of interim maintenance allowance and instead he was proceeded against the ex-parte which did not decide the matter, issue wise.
Petitioner No. 1 had not claimed maternity expenses and the affidavits Exs.P.1 & 2 were not specifically verified by the deponents that how much contents of those were correct/true according to their knowledge and how much of those, were believed to be truthful on the .Basis of their information. None of the reasons assigned by the learned Additional District Judge, was lawful.
Respondent N. 3/defendant after appearing, in the suit, absented himself and his attorney/brother deserted follow up of the case whereafter the order for payment of interim maintenance allowance was passed by the learned Judge Family Court hence findings of the Court of appeal to the effect that defense of respondent No. 3 should have been struck instead of proceeding against him ex- paste, is simply . Unfounded and contrary to the record: As regards the other reason for the remand of the case that ex-parte judgment passed by the learned Judge Family Court did not 'deal with the issues already framed, as is also amazing because respondent No. 3 absented himself from the proceedings in the suit wherein there was no evidence on his behalf and in this situation, there was no legal necessity to decide the each issue even if already framed. The third reason assigned in the impugned judgment that affidavits Exs.P.1 & 2 were not verified by reference to the numbered paragraphs, as to what the deponent verified of his own knowledge and as to what he affirmed upon information received this requirement/verification relates to pleadings, as per Order-VI, Rule
15. C.P.C. But does not make obligatory for a deponent of an affidavit to depose in this manner.
Affidavits are shown according to Section 7 of the Oaths Act, 1873 which does not create any such obligation but this provision of law escaped notice of the learned Additional District Judge, while passing the impugned remand order. Undisputedly, respondent No. 3 was served in the suit by petitioner No. 1 and had appeared through his real brother/attorney who filed written statement on, his behalf and participated in the pre:trial reconciliation proceedings. Follow up of the suit on behalf of respondent No. 3 was deserted by the attorney as well as the counsel leaving no room for the learned Judge Family Court to further wait for his appearance and he rightly proceeded ex- parte against respondent No. 3. After passing of ex-parte decree on 24.3.2006, respondent No. 3 could not get it aside, had he explained his non-appearance and of his counsel. In absence of any sufficient cause or reasons beyond their control of appear in the suit, ex-parte decree could not have been set aside/recalled. Though provisions of Civil Procedure Code are excluded from applicability to the proceedings before the learned Judge Family Court, by virtue of Section 17 of the Family Courts Act, 1964 yet general principles thereunder could be invoked for due administration of justice where no procedure was provided in the Act (ibid). In light of the provisions of Order IX, Rule 13 C.P.C. Ex-parte decree against the defendant having knowledge of the pendency of suit, cannot be set aside and in the case in hand respondent No. 3 was fully aware of institution of suit filed by her thus without attending all these factors , the learned Additional District Judge, unnecessarily remanded the case by illegally setting aside the ex-parte decree dated 24.3.2006.
6. Respondent No. 3 had not denied paternity of his both the minor children and under the enacted law, social/customary bonds and Islamic principles, he was under obligation to provide them maintenance allowance. Both the children (petitioners No. 2 and 3) have entered into the sensible ages and need food, clothing, education, medical and transportation expenses for which the awarded maintenance allowance at the rate of Rs. 800/- per month is not excessive/exorbitant in this age of inflation and dearness, especially when respondent No. 3 is working in "Kuwait" and has means to pay at least this much amount. As regards gold ornaments, respondent No. 3 was putting up with his in-laws and deserted the adobe by snatching the gold ornaments from petitioner No. 1. There was no evidence on the file to rebut this claim and the learned Judge Family.
Court within his allocated judicial discretion, determined it and could not be interfered in appeal..
Scan of record and impugned judgment/decree revealed that controversy was not correctly put to rest, in accordance with law.
7. For the reasons noted above, instant petition is bound to succeed and is accordingly accepted.
Judgment/decree/remand order dated 6.7.2006 passed by the learned Additional District Judge, Gujrat declared to be void and non-existent in the eye of law, Judgment/decree dated 24.3.2006 passed by the learned Judge Family Court will hold the field. There will be no order as to costs. .