MUHAMMAD SHAN GUL, J. Learned counsel for the petitioner has laid a challenge to an order dated 19.04.2022 passed by a Judge Family Court, Faisalabad while functioning under the regime of the Guardians and Wards Act, 1890.
2. Facts in brief are that the respondent Dr. Muhammad Shafiq filed a petition for gaining custody of his minor son Muhammad Hadi Shafiq. This petition was resisted by the petitioner Mst. Sumaira Ashraf (mother) who filed a reply in the matter on 05.03.2021 and issues were framed on 11.06.2021. While evidence of the respondent i.e. the petitioner in the guardian petition was recorded, the evidence of the petitioner Mst. Sumaira Ashraf was submitted by way of affidavits. Thereafter , the petitioner before this Court filed an application requesting the court for permission to produce some documents which according to the petitioner were absolutely germane to the matter in issue. The documents sought to be produced by the petitioner by way of evidence are attested copies of an earlier execution petition between the same parties in which perpetual warrants were allegedly issued against the respondent on account of his unwillingnes s to pay maintenance to the minor , the original divorce deed between the competing parties, educational certificates and testimonials, school fee receipts etc. This application was resisted by the respondent who pointed out that these documents could have easily been brought on the record earlier while filing a reply to the main petition and that since the petitioner before this Court had not mentioned any reasons for introducing these documents quite late in the day the application filed by the petitioner should be dismissed.
3. The learned Judge seized of the petition under section 25 of the Guardians and Wards Act, by relying on section 9 of the West Pakistan Family Courts Act, 1964, dismissed the application of the petitioner by ruling that the petitioner could not come up with any sufficient cause in convincing the court that the omission to produce these documents earlier was unintentional or for that matter based on inadvertence.
4. Learned counsel for the petitioner has laid a challenge to this order dated 19.04.2022 on the premise that section 13 of the Guardians and W ards Act, 1890 is unequivocal in its command. Section 13 is being reproduced:-
13. Hearing of evidence before making of order .
(1) On the day fixed for the hearing of the application, or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.
Section 25 of the W est Pakistan Family Courts Act, 1964 is being reproduced:
25. Family Court deemed to be a District Court for purposes of Guardians and W ards Act, 1890.
A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act.
After a combined reading of these two sections, the picture becomes clear and what the learned trial court could not have done summarily was to dismiss the application by relying on section 9 of the West Pakistan Family Courts Act, 1964 because according to section 25 of the West Pakistan Family Courts Act, 1964 the process envisaged in the Guardians and Wards Act, more particularly section 13 thereof had to be followed. Learned counsel adds that the court functioning under the regime of the Guardians and Wards Act, 1890 is supposed to hear and take into account evidence as may be adduced in support or in opposition to an application and that there is no time line provided for producing such evidence and it is also not as if evidence of parties had been closed and since cross examination on the evidence produced by the petitioner was yet to take place the trial court ought to have allowed the production of such evidence and not kill the issue as it has done.
5. On the other hand, leaned counsel for respondent No.1 submits that it is not as if the process envisaged by section 9 of the West Pakistan Family Courts Act, 1964 is in conflict with the process mandated by the Guardians and Wards Act, 1890 and therefore, the reliance of the trial court on section 9 of the West Pakistan Family Courts Act, 1964 is quite apt. Adds that the petitioner should have been vigilant enough to have cited and produced such evidence while submitting his written statement. Also relies on an earlier decision passed in W.P. No. 12549 of 2022 titled "Mst. Sumaira Ashraf vs. Judge Family Court etc." and which petition was allowed with the consent of competing parties and the petitioner was allowed to file a list of witnesses. Submits on the strength of this order that the petitioner ought to have submitted evidence which she wants to submit now at that point in time and her attitude and conduct clearly reveals that she wants to prolong and delay the matter unnecessarily because the minor is presently residing with her .
6. Heard. Record perused.
7. It may be mentioned here that the Guardians and Wards Act, 1890 through its section 13 provides that on the day fixed for hearing of an application the Court shall hear such evidence as may be adduced in support of the application or in opposition to the application. Likewise, section 25 of the Guardians and Wards Act, 1890 reads that the process envisaged in the Guardians and Wards Act has to be followed to the ouster of all other procedures when a Family Court deals with matters specified in the Guardians and Wards Act, 1890. The Hon'ble Supreme Court of Pakistan in the case of Anne Zahra vs. Tahir Ali Khilji and 2 others (2001 SCMR 2000 ) has acknowledged this trite position of law at paragraph 5: "5. There is no doubt that prior to promulgation and coming into force of West Pakistan Family Courts Act, 1964, the matter regarding territorial jurisdiction of the Guardian Judge constituted under the said Act and the procedure to be followed after entertainment of the applications thereunder as also the filing of appeals and revision petitions against the orders passed by the Guardian Judge were governed and regulated by the Guardians and Wards Act, 1890. The Guardian Judge was the District Court which was to be designated through notification under the said Act. Family Courts under the West Pakistan Family Courts Act, 1964 were created and vested with the exclusive jurisdiction to entertain and decide all the suits and other matters included in the schedule attached to the said Act. A perusal of the said schedule shows that the matters relating to appointment of guardians of the minors and their properties and custody are included in it. Section 5 of the said Act provides that in respect of all mattes included in the schedule, the Family Court shall have the exclusive jurisdiction to entertain suits or applications with regard thereto and decide the same. Under section 25 (ibid), a Family Court, thus seized of a matter brought before it in respect of any matter included in the schedule was deemed to be a Court a District P` Judge for the purposes of Guardians and Wards Act and notwithstanding anything contained in the Family Courts Act would, in dealing with the matters specified in this Act, follow the procedure prescribed in the Guardians and W ards Act, 1890."
8. It follows that any procedure that is not forbidden by the Guardians and Wards Act, 1890 or which procedure is not envisaged statutorily in the Guardians and Wards Act, 1890 can be employed while proceeding with a matter under the Guardians and Wards Act, 1890. Unless there is an inconsistency between the particular section of law in one enactment and the provisions of the Guardians and Wards Act, 1890 there can be no clash or contrariety and such procedure shall be permissible.
9. The current case requires answering the question; whether the requirements of Section 9 of the Family Courts Act, 1964, of attaching all the documents, intended to be used in evidence, by a defendant with his written statement, can be applied by Family Courts while acting as District Court under the Guardians and Wards Act, 1890 in a way to restrain such defendant from producing any documentary evidence at a later stage. The words notwithstanding anything contained in this Act, shall, in dealing with matters specified in that Act, follow the procedure prescribed in that Act," as enacted in Section 25 above are unambiguous and clear; they first exclude the procedure prescribed in Family Courts Act, 1964 and then emphasise on adopting the procedure given in Guardians and W ards Act, 1890 .
10. Sections 8-12 of Family Courts Act, 1964 prescribe the procedure to be followed for the purpose of a trial before such Courts. Section 10 of the Guardians and Wards Act, 1890 explains how an application under the said Act, 1890 is filed, Section 11 prescribes the mode of service upon interested parties and Section 13 deals with how the hearing is to be conducted and evidence adduced. There is a clear distinction in procedure under both laws i.e. Section 9 of the Act, 1964 requires the presentation of documents (which will later be used in evidence) alongwith the written statement whereas Section 13 of the Act, 1890 deals with the same subject i.e. presentation of evidence in support of defendant's claim or defence but makes no condition that such evidence be submitted with the written statement. In the presence of a specified procedure provided in Section 13 of the Act, 1890, the provisions of Section 9 of the Act, 1964 can have no application in view of the clear command of Section 25. The long established rule that when the law requires something to be done in a particular manner, it has to be done in that manner alone and not otherwise (2020 SCMR 2129 & PLD 2018 Lahore 784) shall be attracted and the application of the petitioner could not have been dismissed on the basis of violation of any procedure mentioned in Section 9 of the Act, 1964, the application of which is specifically prohibited through Section 25 since a specified procedure is devised under Section 13 of the Act, 1890.
11. However, in the present matter the reliance of the learned Judge Family Court on section 9 of the West Pakistan Family Courts Act, 1964 in the presence of section 13 of the Guardians and Wards Act, 1890 is not understandable.
In fact the learned Judge has not even remotely mentioned section 13 ibid in his order dated 19.04.2022. Section 13 indeed has a bearing on the matter and ought to have been looked at and referred to while deciding the application in question.
12. This having not been done, the order dated 19.04.2022 cannot be sustained and is therefore, set aside and declared to be of no legal effect and the application filed by the petitioner for permission to produce original divorce notice, fee challan and educational testimonials of minor Muhammad Hadi Shafiq shall be deemed to be pending before the learned Judge Family Court functioning under the Guardians and Wards Act, 1890. To ensure no loss of time, parties are directed to appear before the Judge Family Court concerned at Faisalabad on 29.04.2022 at 10.30 a.m. and the application in question shall be taken up and decided within 15 days starting from 29.04.2022 and definitely before 20.05.2022. The Judge Family Court shall especially allude to section 13 of the Guardians and W ards Act, 1890 and shall after considering its presence and its ef fect pass an order afresh.
13. Allowed in the above terms.