Faisal Zaman Khan, J. Through this petition, order and decree dated 17.06.2016 passed by respondent no.2 and judgment and decree dated 17.10.2017 by respondent no.1 have been assailed.
By virtue of the former order, a suit for recovery of dowry articles filed by the petitioner against respondent no.3 has been dismissed and through the latter judgment, the same has been upheld.
2. The facts giving rise to the present petition are that marriage was solemnized between respondent no.3 and Mst. Farhat Naseem who is allegedly the sister of the petitioner. Mst. Farhat Naseem (deceased) died on 16.08.2012, whereafter, a suit for recovery of dowry articles was filed by the petitioner against respondent no.3, before the family court (respondent no.2) in which written statement was filed by respondent no.3, whereafter a preliminary issue qua maintainability of the suit was framed, subsequent to which, the issue was decided against the petitioner as a sequel to which the suit was dismissed vide order dated 17.06.2016. Feeling aggrieved, petitioner preferred an appeal which also met the same fate and was dismissed vide judgment dated 17.10.2017, hence, this petition.
3. Learned counsel for the petitioner, while relying on judgments reported as {{Mst. Nasim Sharif v.
Imtiaz Ali Khan and 3 others [2006 CLC 1393]}} and {{Mst. Musarrat Andleeb v. Additional District Judge, Alipur, District Muzaffargarh and 3 others [2011 CLC 1989],}} submits that for filing a suit before the family court (including a suit for recovery of dowry articles), the determining factor for invoking the jurisdiction is the subject-matter of the suit and not the party who has brought the lis before the Court, thus, the courts below erred in law in dismissing the suit being not maintainable.
4. Arguments heard. Record perused.
5. The question which requires determination by this Court is as to whether the suit for recovery of dowry articles filed by the petitioner being the sister of the deceased was maintainable and did she had the locus standi to file such a suit.
6. In the above backdrop a perusal of the plaint would show that it is the case of the petitioner that she is the successor of the deceased and is entitled to inherit 1/2 of the share from the property of the deceased, thus, she is entitled to 1/2 of the dowry articles given to the deceased at the time of marriage, for which she has approached the family court.
7. Family courts are established under section 3 of the West Pakistan Family Courts Act 1964 (Act).
The said courts exercise their jurisdiction under section 5 of the Act, which is restricted to the "matters" specified in Part I of the Schedule of the Act. For the sake of reference, the section as well as the Schedule is reproduced hereunder: "5. Jurisdiction.- (1) Subject to the provisions of the Muslim Family Laws Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule.
[(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule, where one of the spouses is victim of an offence committee by the other.
(3) The High Court may with the approval of the Government, amend the Schedule so as to alter, delete or add any entry thereto]."
"SCHEDULE [See Section 5] [PART I]
1. Dissolution of marriage [including Khula].
2. Dower.
3. Maintenance.
4. Restitution of conjugal rights.
5. Custody of children [and the visitation rights of parents to meet them] 6A. Matters pertaining to return of child under the Hague Convention on the Civil Aspects of International Child Abduction, 1980."
[7. Jactitation of marriage.] [8. Dowry.] [9. Personal property and belongings of a wife.
PUNJAB AMENDMENT In the Schedule, in Part I, for entry at serial No.9, the following shall be substituted: "9. The personal property and belongings of a wife and a child living with his mother.
10. Any other matter arising out of the Nikahnama."
8. The preamble of the Act would show that the Act has been promulgated in order to make provisions for establishment of family courts for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.
9. A careful reading of the preamble would show that the Act has primarily been promulgated for "expeditious" "settlement" and "disposal of disputes" mentioned in the Schedule reproduced supra which primarily cater for the disputes arising out of "marriage", which is between the "spouses" and the "family affairs" which are outcome of marriage.
10. When an "issue/dispute/matter" as contemplated in the above Schedule arise to a spouse, for "disposal" of the same either of them under section 6 of the Act being an aggrieved spouse will approach the family court against a party as defined in section 2(d) of the Act, whose presence is necessary for proper decision of the case or which has been impleaded by the family court. Upon such institution, defendant shall be intimated under section 8 who upon intimation will file a written statement under section 9 whereafter under section 10 process of "settlement" will be initiated by the family court by making an effort for reconciliation between the spouses. If the reconciliation fails, issues will be framed and thereupon under section 11 parties will be put to evidence and once the evidence is concluded, under section 12 another effort for "settlement" between the spouses shall be made by the family court and in case it fails, a final decree will be passed.
11. Unlike the procedure provided for proceeding in a regular civil suit under the Code of Civil Procedure 1898 (CPC), for "expeditious" disposal of the family suits, under section 7 an aggrieved spouse is allowed to enjoin multifarious causes of action (as mentioned in the Schedule) in one suit and for disposal of the same section 12-A provides for a time line. To further simplify the process/procedure and for express disposal of cases, under section 17 application of Qanun-e- Shahdat Order 1984 and CPC has also been ousted.
12. Placing the afore-referred dissection of the Act in juxtaposition with the facts of the present case, it has surfaced that the jurisdiction of a family court is circumscribed and is restricted to the "matters" mentioned in the Schedule reproduced supra. A bare perusal of the Schedule would show that it does not empower a family court to adjudicate upon a claim of a party qua his/her right of inheritance or tarka as defined in judgments reported as {{Federation of Pakistan v. public at large [PLD 1991 SC 750],}} {{Federation of Pakistan v. public at large [PLD 1991 SC 731]}} and {{Muhammad Javed and another v. Mst. Roshan Jahan [PLD 2019 Sindh 1].}}
13. In the above background, since the claim of the petitioner is that of her inheritance as she is asking for 1/2 of her share in the dowry articles being the estate/tarka of the deceased for which she has approached the family court by way of filing a suit for recovery of dowry article and since determination of share in the estate/tarka of a deceased or its distribution do not fall within the jurisdiction of the family court, hence the suit filed by her was not maintainable as she had no locus standi to approach the family court, thus, the courts below have rightly decided against the petitioner.
14. It shall not be out of place to mention here that in order to establish her share in the estate/tarka of the deceased and for determination of her rights (if any), petitioner needs to approach the Civil Court of competent jurisdiction seeking a declaration wherein at the outset, she will have to establish that she is the successor of the deceased and is entitled to 1/2 share out of the estate/tarka. Similarly, she will also have to prove that any dowry articles were given to the deceased at the time of marriage, which are allegedly in the custody of respondent no.3 and have been usurped by him. Likewise, she will have to prove that there are some personal belongings of the deceased (as contemplated in paragraphs no. 3 and 4 of the plaint) which have been usurped by respondent no.3. Last but not the least she will have to establish whether the property out of which she asking for her share is heritable.
15. As discussed above since the Act revolves around the settlement and resolution of disputes arising out of marriage and family, (which is the outcome of the marriage), it is only the spouses (either of them) who under the Act can approach the family court, being an aggrieved person and file a case against the other spouse or any person whose presence is necessary for proper adjudication [see section 2(d) of the Act]. An exception to the question of locus standi is created in the cases of guardianship as in such cases the paramount consideration is the welfare of the minor [as contemplated in the Guardian and Wars Act 1890]. Similarly the Superior Court have also recognized the rights of the parents of a deceased daughter to approach the family court seeking recovery of dowry articles [since they had given the dowry articles to the deceased and their capacity to sue is recognized in section 2(d) of the Dowry and Bridal Gifts (Restriction) Act 1976].
16. There is no cavil to the proposition that in the cases of Mst. Nasim Sharif and Mst. Musarrat Andleeb supra, this Court has held that while determining the jurisdiction of a family court, the subject-matter has to be given precedence instead of the parties who have approached the court, however, the said judgments are distinguishable and not applicable to the case in hand for the reason that in those cases there was no claim of inheritance/distribution of assets of the deceased spouse. Moreover, in the former judgment, a suit was filed by the parents of the deceased daughter qua recovery of dowry articles, whereas in the latter, the same was filed by the wife against the successor of her deceased husband, alleging that they have usurped the dowry articles.
17. For what has been discussed above, since the learned counsel for the petitioner has not been able to highlight any jurisdictional defect or procedural impropriety in the impugned order/judgment/decrees, therefore, in view of judgments reported as {{Muhammad Rafique v.
Saima Rafique (Minor) and 2 others [2002 SCMR 1290],}} {{Tasawar Hussain v. Mst. Farzana Kausar and others [PLD 2015 Lahore 208]}} and {{Mst. Saman Naseer v. Additional District Judge, Lahore and others [2020 CLC 549],}} no ground for interference is made out, as a sequel to which, this petition fails and the same is dismissed.