AHMAD ALI, J.---Petitioner through this writ of certiorari has called in question the vires of order dated 12.03.2020 passed by the learned Civil Judged-III/J udge Family Court, Abbottabad, whereby the learned court ordered the sealing of dowry articles of respondent No.1 in the room of the house of petitioner .
2. Facts of the case, necessary for the decision of present constitutional petition are that the respondent No.1 filed a family suit for dissolution of marriage, possession of house, return of dowry articles and recovery of maintenance and delivery expenses. Written statement was filed by the petitioner . The respondent No. 1/plaintif f also filed an application for sealing of her dowry articles and in reply thereto the petitioner/defendant expressed his readiness to return the dowry articles to respondent/ plaintif f. The learned Judge Family Court after hearing arguments on the application for sealing of dowry articles, allowed the application vide order dated 12.03.2020 and thereby directed the bailiff of the Court to seal the dowry articles, lying in the house of petitioner/de fendant, in a room of the house.
The bailiff sealed the dowry articles in two rooms as according to his report the dowry articles could not be sealed in one room. Hence, this petition by the petitioner/ husband.
3. Arguments heard and record gone through.
4. A threadbare perusal of the record reveals that the learned trial Court while passing the impugned order , has referred to Section 21-A of West Pakistan Family Courts Act, 1964 which provides that a family Court may pass an interim order to preserve and protect any property in dispute. The Section 21-A of the ibid Act 1964 runs as under: 21-A. Interim order pending suit.---The Family Court may pass an interim order to preserve and protect any property in dispute in a suit and any other property of a party to the suit, the preservation of which is considered necessary for satisfaction of the decree, if and when passed.
5. From the perusal of above, it is clear that these provisions are discretionary , however , such discretion was structured/limited by the subsequent words "any property in dispute". The petitioner/husband in his reply to application for sealing of the dowry articles very frankly expressed his willingness to hand over the dowry articles lying in his house to the respondent/wife. Thus, there remained no point of disagreement or dispute over the dowry articles lying in husband's house, and as such, in the absence of any property in dispute, the scope of discretion of the Family Court under section 21-A of the West Pakistan Family Courts Act, 1964, vanished. In this situation the learned Judge Family Court should have ordered the Bailif f to hand- A over the admitted dowry articles, lying in the house of defendant, to the plaintif f/wife against a proper inventory of all such articles, subject to final decision regarding any missing articles, if alleged by wife.
6. We have noted it with great concern that under section 21-A of the Family Courts Act, 1964, a family court has not been vested with powers to issue direction for any kind of sealing rather the words "preserve" and "protect " have been used in this section. The dictio nary meaning of 'PRESER VE' are to maintain (something) in its original- or existing state or to keep safe from injury , harm, or destruction. Whereas, diction ary meaning of "PROTECT " are to keep safe from harm or injury or to cover or shield from exposure, injury , damage, or destruction. It is also noteworthy that the dowry articles have been sealed in two rooms of the house of petitioner/husband and doors thereof have been locked. In this way the learned Family Court has illegally prevented the petitioner and inmates of his house to use the said rooms of their own house which by itself is violative of the provisions of Article 24(1) of the Constitution of Islamic Republic of Pakistan, 1973. In-fact learned family court has passed the order to seal the rooms of the house of petitioner/husban d which were not the subject matter of the family suit. In a case titled Khurram Ghulam Rasool v . Shazia Khurram and others (PLD 2017 Lahore 689 ) it was held : Suit for recovery of maintenance--Interim maintenance-Restraining order at the time of institution of suit for defendant to alienate his property---Question was as to whether provision of S.21-A of the Family Courts Act, 1964 could be invoked without any order of interim decree under S.17-A of the Act--- Petitioner/defendant contended that restraining order not to alienate his property was illegal as the same was passed by Family Court at the outset of proceedings and respondent/plaintiff moved application for interim maintenance after few months-Respondent contended that restraining order was necessary to secure legal rights in the light of apprehension that petitioner might sell his property---V alidity--Family Court was not justified in passing the order restraining the petitioner from alienating his property which was not subject matter of the suit because no hard circumstances existed which had made the Family Court to pass an order which otherwise amounted to attachment before judgment-Record showed that plaintiff on the first date of hearing filed application under S.21-A of the Act, on the ground that the defendant was living abroad and would sell the property , therefore, he be restrained from alienating his property-Family Court on the first date had passed status quo order that the defendant was restrained to alienate or sell the property so that expected decree be executed effecti vely---Such was a premature act of the plaintiff to file the application on the first day because it was against the mandate of procedure provide in the Act as the interim or final decree, had not been passed--Interim maintenance was allowable under S.17-A of the Act, and after recording of evidence and hearing the parties final decree was to be passed and when maintenance was not being paid in pending suit, then 5.21-A of the Act could be invoked, if all the ingredients of S.21-A were fulfilled-- Intention of the Legislature was very clear with regard to the attachment before judgment that to preserve and protect the property , which was in dispute and for the satisfaction of the decree, then interim order was to be passed ; that the basic criteria given for passing restraining order of the property in dispute was for the satisfaction of the decree if considered necessary--- Family Court merely on presumptions and apprehensions had assumed without any cogent and convincing evidence on record that after passing of maintenance order , the defendant would abscond out of country and decree would not be satisfied---Family Court had not followed the prescribed procedure provided in law-Power given in S.21-A of the Act was presumpti ve and not punitive-- Jurisdiction of the court was of an extraordinary in nature and should be exercised sparingly and strictly in accordance with the procedure prescribed by the law--- Present suit related to maintenance and Family Court had misconstrued the provision S.21-A of the Act, which could only be exercised in a suit where subject matter was that of property , if the decree (interim or final) was not satisfied by the defendant, in other words, the party , filing the suit, should have a semblance of right o title over the property--For exercising the powers under S.21-A of the Act, the criteria for the court was to see that party filing the suit had semblance of right or title over the property; compelling cause of actio n was to be stated by the court; previous record of the defendant was to be seen that he had entered into any agreement to sell or he was trying to further alienate his property through any other mode, like gift or exchange and whether interim maintenance was not being paid by him---Defendant, in the present case, had never refused to main tain his family and was steadily paying maintenance every month, thus complying with the interim decree which was being satisfied---Present suit was only for maintenance and relief sought was being adhered to on the form of payment of interim maintenance, so issuance of restraining order was undesirable---By merely filing a suit/application, or raising any plaint against the defendant did not constitute a right to restrain the defendant from alienating his property---Facts from which the intention of the defendant might be inferred for selling/disposing of the property or portion of the property were to be proved through satisfactory evidence that i.e. an attempt to sell property , benami transfer , rapid sale of the property , past conduct---T ransaction of disposing of property must be subsequent to the suit---Mere fact that plaintiffs. had claimed for maintenance allowance against the defendant and had an apprehension that the defendant would abscond because he was living abroad for earning his ' livelihood, was not enough to pass the impugned order ---Section 21-A of Act was preventive and not punitive--- Family Court had passed impugned order merely on apprehension without application of judicial mind-Impugned order was set aside-Constitutional petition was allowed accordingly .
7. Accordingly , for the reasons stated hereinabove, this Court we accept the present petition. The impugned order dated 12.03.2020 suffers from jurisdictional defect and as such declared illegal and without lawful authority and is therefore set aside. Accordingly , learned court below is directed to immediately de-seal the rooms of the house of petitioner and hand over the admitted dowry articles to respondent/wife subject to proper inventory . In case of any disagreement of parties over quantity or condition of such articles, the same be decided after recording pro and contra evidence of parties at the time of final judgment. Parties are left to bear their own cost.