ALI AKBAR QURESHI, J. --- This Constitutional petition is directed against the order dated 1.7.2008 and 18.6.2008, whereby the appeal of the petitioner was dismissed being barred by Section 14 of the Family Courts Act, 1964 on the ground, that the interim order passed by the learned Trial Court does not fall in The purview of "decision" as used by the legislature in the aforesaid Section.
2. Shortly, the facts for the disposal of this petition are that the petitioner instituted a suit for recovery of the dowry articles, which was contested by the respondent by filing the written statement, wherein he controverted the contents of the plaint.
3. The learned Judge Family Court after framing issues, put the case for evidence of the petitioner and during the course of recording the cross-examination, the, respondent made an offer that if the petitioner takes the oath while putting his hand on the head of her children and also on Holy Quran that the articles mentioned in Ex.PI1 and P-3 were given to her, the respondent would pay the amount of the same For reference, the offer is reproduced:- {{URDU TEXT}} On the next date of hearing, when the petitioner came to the Court alongwith her children to take oath, the respondent resiled from his offer and submitted to the learned Judge Family Court for decision of the case on merits. The learned Judge Family Court on this issue, heard the arguments of the parties and finally observed that since special oath offered by the respondent was not in accordance with Section 8 of Oaths Act and could not be administered and lastly decided to adjudicate the case on merits after recording the evidence of the parties.
4. The petitioner, being aggrieved of the said order, preferred an appeal but the same was dismissed on the sole ground that the appeal against the order passed by the learned Judge Family Court being barred by provisions of Section 14 of the Family Courts Act, 1964 is not maintainable, hence this Constitutional petition.
5. Learned counsel for the petitioner as regard the maintainability of the appeal before the learned Appellate Court submitted, that the order passed by the learned Judge Family Court dated 18.6.2008 is very much "decision" and the appeal was competent as the legislature has used two words i.e. "decision" and "judgment" in Section 14 of the Family Courts. Act, 1964. Further contended that it was a material order as if the respondent does not resile from his offer, the case would have been decided on this point, therefore, the learned Appellate Court wrongly non-suited the petitioner on this score. Reliance is placed on Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344).
6. As regard, the offer on oath by the respondent and subsequently resiled, the learned counsel submitted, that the respondent in categorical words made an offer to the petitioner to take the oath; the petitioner on the next date fixed by the learned Judge Family Court, came to the Court alongwith the children, therefore, the respondent in any case, was not permitted by law to resile from his offer. Lastly contended that judgment referred by the learned Trial Court while making the observation against the petitioner is not available in the journal of the relevant year, therefore, the petitioner in any case cannot be penalized on the law not declared by any Court. Reliance is placed on Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. (PLD 1988 SC 1), Shek Khan Mahmud v. Sheikh Syed All and others (AIR 1931 Calcutta 549).
7. Conversely, Mr. Ameer Hussain Chaudhry; Advocate, learned counsel for respondent contended, that wrong , mentioning of the year of the judgment was in fact result of typographical mistake as the relevant judgment is Budhan v. Sukhan and others (AIR 1952 Allahabad 678). Also contended that the petitioner was rightly non-suited because of the reason, that the offer to .Take oath by the, respondent was not in terms of Section 8 of the Oaths Act, 1873. Learned counsel also submitted that it is consistent view of the Courts that in the proceedings of taking oath, 3rd person cannot be involved.
8. As regard the maintainability of the instant Constitutional petition, learned counsel submitted that as the petitioner has not come to the Court with clean hands because, the petitioner during the, course of cross-examination has himself admitted, that no dowry articles were given to her at the time of her marriage, therefore, the Constitutional petition in view of the principle laid down in Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others (PLD- 2009 SC 28) is not maintainable. On the point of taking oath, learned counsel referred Muhammad A.I v. Major Muhammad Aslam and others (PLD 1990 SC 841), Shakirullah v. Hidayatullah, etc. (NLR 1999 Civil 45), Shakirullah v. Hidayatullah and 3 others (1999 M LD 389). Lastly, learned counsel also referred the Dowry Ordinance, 2001 and submitted that dowry more than Rs. 5,000/- cannot be given to the bride. The learned counsel also submitted that the law also favours the adjudication on merits instead of technicalities.
9. I have heard the learned counsel for the parties and perused the record.
10. The offer to take oath was made by the respondent himself, therefore, the provisions of Section 8 of. Oaths Act pertaining to the decency cannot be referred. The respondent made the offer to the petitioner to take oath while putting her hands on the heads of the children knowingly that the children were born out of the wed-lock of the respondent and the petitioner. It is not denied that the respondent is real father of the minors, therefore, it is. Sufficient to show the callousness of the respondent who for a small amount made scapegoat to his children. The respondent resiled from his offer without extending any explanation, therefore, to my mind, the respondent particularly in a family case, intentionally and deliberately resiled from his offer to tease and harass the petitioner, avoid to pay claims of the
11. As regard the maintainability of the appeal against the instant interim order, passed by the learned Judge Family Court, it is observed that the offer made by The respondent to decide the case on oath, was material one,, particularly, involving his children, therefore, should not be allowed to resile easily or in routine.
12. The petitioner has been non-suited by the learned Appellate Court on the grounds that the appeal against the interim order passed by the learned Judge Family Court was not maintainable in view of the provisions of Section 14 of the Family Courts Act, 1964. The legislature has provided appeal through the aforesaid Section against a decision or a decree given by a Family Court. The Dictionary meaning as given in the Wharton's Law Lexicon of "decision" means a judgment, and as per Stroud's Judicial Dictionary, "decision" is a popular and not technical word, and means "little more than a concluding opinions." The word "decision" has been defined in Webster Encyclopedic Dictionary means "the act of deciding, determination, final/judgment or opinion in a case which has been under deliberation or discussion whereas the decree has been defined in Section 2(2), CPC. Even otherwise, the word "decision" used in Section 14 has to be read as ejusdem generis with decree and not only final decision of a Family Court. The word "decision" not only covers the final judgment but also interlocutory order, therefore, in such situation, the appeal would be maintainable. While having a look of a different meaning and definition is broad enough to cover both final judgments and interlocutory orders and although, it is some times limited to the sense of Judgment and some times understood as meaning simply the first step leading to a judgment.
Lastly, the word "decision" may' also include various ruling as well as orders.
13. In this case, the offer was made by -the respondent to decide the ais on oath but subsequently backed out without any reason. Had the offer made by the respondent been materialized, the case would have been decided either way, therefore; it can safely be held that the act of the respondent is leading to a final judgment, therefore, in any case, it was a decision and the appeal was competent.
14. As regard, the conduct of the respondent to resile from his oath, is to be seen in view of Sections 8 and 9 of the Oaths Act, 1873 which read as under:--- "8 If any party to, or witness in, evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained, tender such oath or affirmation to him.
"9 If any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as is mentioned in Section 8, if such oath or affirmation is made by the other party to, or by any witness in, such proceedings, the Court may, if it thinks fit, ask such party or witness, or cause him to be asked, whether or not he will make the oath or affirmation."
15. Sections 10 and 11 of the aforesaid Act is also relevant to resolve the controversy. The same is reproduced hereunder:---- "10. If such -party or witness agrees to make such -oath or affirmation, the Court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of Court, the Court may issue a commission to any person to administer it, and authorize him to take the evidence of the person to be sworn or affirmed and return it to the Court "11. The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated."
16. The Hon'ble Supreme Court of Pakistan while interpreting the aforesaid provisions of Oaths Act in. Mahmood A.I Butt v. Inspector General Police, Punjab, Lahore and 10 others (1998 PSC 53) has laid down the principle:--- "that a party offering to have a cause decided on oath and undertaking to abide by the special oath of a person (party or not a party to the suit) cannot be allowed to resile from it, for it amounted to a binding contract unless it was found to be void or stands frustrated. So validity of decisions given on the basis of special oath was upheld under the provisions of Oaths Act, 1873. It will, therefore, be seen, that "special oath" made basis of the decision in the instant case is not covered by Article 163 of the Qanun-e-Shahadat and reference to Article 163 and alleged violation of any supposed prescribed procedure, urged by the learned counsel is misconceived.
17. Further in Para-II of the aforesaid judgment:- "It is well-established that breach of undertaking to the Court amounts to contempt of Court. The petitioner by challenging the order passed in fact seeks to avoid the liability so incurred by him.
Substantial justice has been done and on merits nothing was urged. Hence interference is not warranted."
18. Following the principle laid down by the Honble Supreme Court of Pakistan in the aforesaid judgment, it Scan safely be held, that the respondent, who himself offered to the petitioner to take oath while putting the hand on the heads of the children (respondent is also the real father of the children) and on Holy Quran cannot be allowed to resile or back out from his offer, as laid down in the aforesaid judgment, that breach of undertaking to a Court amounts to contempt of Court.
19. For what has been discussed above, this Constitutional petition is allowed; the matter is remanded to the learned Trial Court/Judge Family Court to decide the case by administering the oath as offered by the respondent.
20. Since, it is a family matter, both the parties shall appear before the learned. Judge Family Court on 28.4.2009 and the learned Trial Court shall fix the date to administer the Oath and try to dispose of the matter expeditiously . No order as to cost.