' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Facts of the case in brief are that the petitioner filed a suit under West Pakistan Family Courts Act, 1964 (Act XXXV of 1964) for the recovery of dowry articles against respondents Nos.3 and 4 before learned Judge Family Court, Alipur alleging therein that her marriage was solemnized with one Mumtaz Khalid, who expired on 9-8-2001 during the subsistence of marriage. The dowry articles owned by her are in possession of the respondents Nos.3 and 4 who are the real brothers of the deceased husband Mumtaz Khalid. The said respondents were asked time and again to return the dowry article who have refused to do so.
2. The respondents Nos.3 and 4 contested the suit by filing written statement raising certain preliminary as well as factual objections. Out of the divergent pleadings of the parties, learned trial court framed as many as six issues including relief recorded the evidence of the parties and proceeded to dismiss suit of the petitioner vide judgment and decree dated 6-3-2007 on the ground that the Family Court has no jurisdiction to adjudicate upon the matter. Being aggrieved the petitioner filed an appeal before the learned Addl. District Judge, Alipur, who also proceeded to dismiss the same vide judgment and decree dated 8-2-2008. Hence, this Constitutional petition was filed.
3. Learned counsel for the petitioner submits that the impugned judgments arid decrees of both the courts below are based on surmises and conjectures that the matter in dispute relates to the dowry articles and the Family Court has exclusive jurisdiction to adjudicate upon the matter; that both the courts erred in law while holding that the Family Court has no jurisdiction to entertain the suit. Relies on Muhammad Anwar and another v. Additional District Judge (Miss Uzma Akhtar Chughtai) and 2 others (2003 YLR 365).
3. Conversely, learned counsel for the respondents Nos.3 and 4 vehemently defended the impugned judgments and decrees while arguing that both the courts have rightly held that the Judge Family Court has no jurisdiction to adjudicate upon the matter; that the petitioner should invoke the jurisdiction of civil court. On merits, learned counsel submits that the petitioner could not prove that the disputed dowry articles are in possession of respondents Nos.3 and 4.
4. Arguments heard. Record perused.
5. Both the learned courts non - suited the petitioner on the ground that the Family Court has no jurisdiction to adjudicate upon the matter. A Family Court is constituted and established under the West Pakistan Family Courts Act, 1964 and the jurisdiction thereupon is conferred under section 5 of the Act ibid which is reproduced as follows:--- "5. Jurisdiction.--- Subject to provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matter specified in ["Part I of the Schedule."]. According to the Schedule provided under section 5 of the Act ibid a Family Court has jurisdiction to adjudicate upon the matters of following nature:-
(i) Dissolution of marriage
(ii) Dower
(iii) Maintenance
(iv) Restitution of conjugal rights
(v) Custody of Children
(vi) Guardianship
(vii) Jactitation of marriage
(viii) Dowry
(ix) Personal property and belongings of a wife.
6. Plain reading of the aforesaid provisions shows that the jurisdiction vested in the Family Court is determined on the basis of the subject-matter and not on the basis of persons, permitted or entitled to invoke such jurisdiction. There is no provision in. The said. Act which classifies or in any way limits the category of the persons entitled to be a party to the proceedings before the Family Courts.
7. In order to further elaborate as to who can become a party in family suit, it is necessary to reproduce the definition of "party" as narrated in section 2(d) of the West Pakistan Family Courts Act, 1964 which is as follows:---
(d) "Party" shall include any person whose presence as such is considered necessary for a proper decision of the dispute and whom the Family Court adds as a party to such dispute: ' Having considered the above referred definition it is clear that the word "party" has a very wide meaning and is not necessarily confined to the spouses and includes "any person" which in the "consideration" of the Family Court is "necessary" for "proper decision" of the "dispute" and whom the Family Court "adds" as a party to the dispute.
8. The claim of the petitioner for recovery of dowry is mentioned at Sr.No,8 of the Schedule. The inference of the learned Judge Family Court that the claim of the petitioner is not between the spouses rather the same is between the wife and the relatives of deceased husband, therefore, the Family Court has no jurisdiction to adjudicate upon the matter is entirely misconceived. In the case reported as Manzoor Ahmad v. Muhammad Nawaz Siddiqui and others (PLD 1975 Lah. 739) this Court has held as under:- "The nature of the claim is one thing but the time at which it is being claimed is another thing.
Since, the nature of the claim both in the case of an ex-wife or heirs of an ex-wife is essentially the recovery of "dower" that remains so always and the mere fact it is being claimed by the heirs of deceased wife does not detract anything from its real character. The various items of the schedule reproduced above, referred to the true nature of the subject-matter of a suit and not the persons who may file or institute it."
9. Similar view is taken in a case reported as Khan Asadullah Khan another v. Sheikh Islamud Din (PLD 1978 Lahore 711) wherein it has been held as follows:--- "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 proceedings 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."
10. From the above referred provision of law and interpretations made by this Court in the judgments referred supra, it is crystal clear 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. It is, therefore, once again reiterated that any suit of a subject-matter covered by the Schedule referred supra can be instituted before a Family Court. In the instant, case claim of the petitioner for recovery of dowry is available at Sr.No,8 of the Schedule therefore, undoubtedly the Family Court has jurisdiction to try and adjudicate upon the matter.
11. For what has been discussed above, this Constitutional petition stands accepted and as a result thereof the impugned judgments and decrees dated 6-3-2007 and 8-2-2008 passed by the learned courts below are hereby set aside. The matter is remanded back to the learned Senior Civil Judge, Muzaffargarh with direction to entrust the same to the learned Judge Family Court having jurisdiction at Tehsil Alipur, who shall decide the same on merit expeditiously and preferably within a period of 30 days from the date of receipt of certified copy of this order.