MUHAMMAD SHAN GUL, J. Through this judgment the titled constitutional petition is sought to be decided.
2. The question raised in the present petition is perhaps a question of first impression in which a husband has stepped forward to volunteer the return of dowry articles brought home by his wife at the time of marriage. This unconventional approach has been discarded by a judge family court upon a suit filed by the petitioner and which denial has brought the petitioner before this Court.
FACTS:
3. Facts in a nutshell are that the petitioner married respondent No.2 Wajeeha on 07.02.2022.
Respondent Wajeeha brought with her dowry articles details of which are mentioned in the petition.
The petitioner and respondent could not get along and, therefore, the petitioner divorced respondent Wajeeha. The divorce became effective on 11.05.2021. According to the petitioner, he approached respondent No.2 through common acquaintances for the return of dowry articles because the petitioner did not want the dowry articles to rot and lose their actual worth and so that subsequently the petitioner could not be saddled with the liability to make up depreciation and deterioration of dowry articles.
4. Since the petitioner did not receive any response from respondent No.2 he approached a Judge Family Court at Lahore and filed a suit for returning dowry articles on 30.05.2021. The respondent did not appear and was proceeded against ex parte. However, a learned judge family court while appreciating the noble gesture of the petitioner dismissed his suit on 01.10.2021 in the following terms: "Plaintiff states that dowry articles belonging to the defendant are laying in the house which he intends to return. However, no suit regarding the recovery of dowry articles is pending adjudication in this court from which the actual number, nature or value of the dowry articles belonging to the defendant may be ascertained. Although such appreciable incidents are rare in our society yet it is a settled principle of law that when law requires a thing to be done in a specific manner then that thing should be done in that manner and not otherwise. A suit for recovery of dowry articles is to be proceeded by the wife. So, the defendant may recover her dowry articles from the plaintiff, admittedly, in his possession. However, it is made clear that this order would not effect the right of defendant to file a separate suit for recovery of her dowry articles against the plaintiff. Thus, with these observations the instant suit is hereby disposed off.
Ahlmad of this court is directed to consign the file to record room after its due completion."
5. The petitioner has approached this Court against the order passed by a judge family court.
Learned counsel for the petitioner submits that there is no prohibition in the Family Courts Act, 1964 for a husband to file a suit for returning dowry articles and the only yardstick and condition for attracting the jurisdiction of a family court is that the subject matter with respect to which a suit has been filed falls within the ambit and purview of the schedule of the Family Courts Act read with Section 5 thereof. Adds that instead of appreciating the noble and unconventional gesture on behalf of the petitioner and while not countenancing a good example and setting a precedent, the judge family court has lost an opportunity of developing law on the subject. Amplifies by submitting that the approach of the judge family court is myopic and narrow and insofar as the judge family court has failed to exercise a jurisdiction vesting in him his order is liable to be set aside as being erroneous. Rounds off by submitting that the pivotal point to consider whether a family court has jurisdiction in a matter is not the person who approaches the family court but the subject matter in respect of which such approach is made.
6. The respondent was put on notice and was asked to appear through the agency of the Local Station House Officer. The respondent appeared alongwith her maternal uncle and upon being asked as to why she was not willing to take back dowry articles now that her marriage had been brought to an end she replied that she was quite willing to take back dowry articles but had not filed a suit for recovering dowry articles on account of precarious financial conditions and that this Court should help her in taking back her dowry articles.
7. A bailiff of this Court was appointed so as to collect, receive and restore such dowry articles details of which are lucidly and elaborately mentioned in the petition. The matter was adjourned for a couple of days. Today both parties are present before this Court and the bailiff appointed by the Court has submitted a report in the following terms: "In compliance with the order dated 03.08.2022 passed by this Hon'ble Court in the above noted case, I was deputed as Bailiff for the recovery of dowry articles mentioned at pages 13 & 14 of this petition (Annexure `C'). I reached the concerned police station Harbanspura, Lahore at 04:00 PM on 04.08.2022 for taking police assistance. Allah Rakha (SI) accompanied with me and reached the house of petitioner, where respondent No.2 Wajeeha, daughter of Mushtaq Ahmad, her uncle (Muhammad Fayyaz-ul-Haq) and petitioner's father namely Azmat Ali were present there. In compliance of the above said order dated 03.08.2022 passed by the Hon'ble Court, all the dowry articles mentioned at pages 13 & 14 of this petition (Annexure `C') were handed over to the respondent No.2 (Wajeeha) after due identification and verification of dowry articles. List of dowry articles duly signed by respondent No.2 (Wajeeha) as well as her uncle (Muhammad Fayyaz-ul- Haq) may please be seen at (Flag-A).
2. Notice issued by this Hon'ble Court was served upon respondent No.2 (Wajeeha) as well as her uncle (Muhammad Fayyaz-ul-Haq), with the direction to appear in person before this Hon'ble Court on 05.08.2022 at 09:00 AM, to explain their version.
3. Report is respectfully submitted for kind perusal of his lordship."
8. The Court has also inquired from the respondent Wajeeha whether she is satisfied and whether anything remains outstanding insofar as dowry articles are concerned. She submits that she has received back all her dowry articles and nothing remains to be returned. While this statement is enough to dispose of the present matter since the petition has borne fruit, the denial and rejection by a judge family court in entertaining a suit for return of dowry articles by a husband has indeed come across as questionable and has, therefore, set this Court thinking! Hence, Miss Sabahat Rizvi, Advocate Supreme Court was asked to assist this Court as a friend of the Court on the question whether a suit such as the one in issue could be entertained by the family court at the instance of a husband?
9. Learned amicus submits that on the strength of Section 5 of the Family Courts Act, 1964 read with item No.8 of its schedule as also in view of the proviso to Section 7(2) of the Family Courts Act, 1964, a suit in respect of or for returning dowry articles can also be filed by a husband and not only by a wife. She has submitted unequivocally that it is the subject matter and not the person which is the clinching criteria and benchmark for gauging jurisdiction of a family court. She submits that the family court has wrongly rejected the suit filed by the petitioner and that the order dated 01.10.2021 is bad in law and deserves to be set aside. She has also submitted that a declaration needs to be issued declaring the suit at the instance of a husband for return of dowry articles to be maintainable in terms of the Family Courts Act, 1964.
10. I have heard the counsel for the petitioner as also the learned amicus and am of the view that family Courts draw their jurisdiction from Section 5 of the Family Courts Act, 1964 and, therefore, employ Section 5 as a qualifying criteria while deciding whether a suit such as the present one is maintainable or not.
5. Jurisdiction.- (1) Subject to the 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 matters specified in Part I of the Schedule.
11. Serial No.8 of Part-I of the Schedule to the Act, 1964 makes all matters pertaining to dowry triable exclusively by the family courts. The Impugned Order proceeds upon the sole logic, as provided therein, that suit regarding recovery of dowry articles can only be brought by a wife. Section 7 of the Act, 1964 stipulates no such restriction and perhaps a common occurrence has weighed upon and influenced the learned trial judge.
12. Family courts, no doubt, have jurisdiction to entertain a suit filed by a wife seeking recovery of her dowry articles but can a husband; an unwilling custodian of such articles abandoned by the wife without any specific instructions; seek help of the family court and refuse to store such items for an indefinite period of time? Such provision and space if not particularly conferred, has not even been particularly excluded.
Neither has any distinction about what type of suit can be brought by a husband or a wife has been drawn in the Act, 1964. In other words, if a husband cannot point out a statutorily prescribed express allowance for filing a case for the return of dower to the wife; neither can the wife for the claim of dower.
All matters relating to dower have been accumulated and made exclusively triable by a Family Court by virtue of Section 5(1) read with Serial No.8 of Part-I of the Schedule.
POWER OF A FAMILY COURT TO REGULATE ITS PROCEDURE UNLESS EXPRESSLY BARRED
13. An analysis of precedent cases on the procedure to be adopted by family courts reveals a consistent consensus on the principle that family courts operating under the Act, 1964, are left to decide the course to be taken by them in most cases and are free to govern and adjust the procedure to be adopted but are expected to presume that every course is permissible to take unless the specified course is expressly barred or prohibited.
14. In "Naseer Ahmed v. Sumeyya and another" (2021 MLD 420), it has been held as follows: "The Act was enforced for the purpose of conferring exclusive jurisdiction on Family Courts for expeditious settlement and disposal of disputes relating to marriage and other family affairs connected therewith and thus the Family Court has the exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in the schedule. Thus, it is clear that by allowing the amendment, called in question by the petitioner in this writ petition, the Family Court has not exceeded its jurisdiction and the order was passed in the best interest of both the parties to avoid another round of litigation between them. Even otherwise, in the absence of any prohibition in law the Family Court was justified to pass any order in the interest of justice and for the expeditious disposal of any dispute relating to marriage which was within its exclusive jurisdiction. Even otherwise, it is a settled proposition of law that Judge Family Court is competent to regulate its own proceedings for expeditious disposal of matrimonial disputes as the Act does not make provisions for every conceivable eventuality or unforeseen circumstances."
15. In "Syed Muhammad Taqi Raza Naqvi v. Judge Family Court and 4 others" (2019 CLC 1261), it has been held as follows: 7......Even otherwise, a Family Court is competent to adopt any procedure and pass any order to regulate its own proceedings unless the same is barred under some law....
16. In "Ali Akbar v. Additional District Judge, Malakwal and others" (PLD 2017 Lahore 787), it has been held as follows: "So far as argument of the counsel for the respondent that Family Court could not review its own order is concerned, suffice it to say that Family Court is a quasi-judicial forum, can regulate its own procedure, the only exception is that it must not be in contravention to any settled principle of law and may not cause injustice to the parties, therefore, Judge Family Court/Executing Court was fully equipped with the powers to review the order, subject matter of this case."
17. In "Muhammad Sajjad v. Additional District and Sessions Judge and 2 others" (PLD 2015 Lahore 405), it has been held as follows: "8. The purpose of enacting Family Courts Act, 1964 is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act, 1964 has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better reliefs. The provisions of Civil Procedure Code, 1908 as well as Qanun-e- Shahadat Order, 1984 are not applicable in stricto sensu to proceedings before the Family Court by virtue of Section 17 of the Act, 1964. Family Court has to regulate its own proceedings in accordance with the provisions of the Act, 1964; and in doing so it has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law........"
18. In "Mirza, Shahid Baig v. Mst. Lubna Riaz and 2 others" (2004 CLC 1545), it has been held as follows: "7....... . Under this Act, Family Court has to regulate its own proceedings in accordance with the provisions of this Act and in doing so it has to proceed on the premise that every procedure is permissible unless a clear prohibition is found in law. Meaning thereby the Family Court can exercise its own powers to prevent the course of justice being deflected from the path as the law laid by this Court in Abdul Majid v. Judge Famiiy Court Karorepacca 2003 YLR 884. It is also settled principle law that Family Court Act is a remedial statute. Its enactment was actuated, with beneficial object behind it, for expediting the matrimonial and family disputes by simplifying the procedure and curtailing the technicalities of the procedural law......... The purpose of enacting the aforesaid Act is to avoid technicalities of the Evidence Act and Code of Civil Procedure so that the family matters can be settled by way of administration of justice in its true sense unhindered by technicalities....."
FREEDOM OF FAMILY COURTS TO ASSUME POWERS NOT EXPRESSLY GIVEN IN THE ACT, 1964
19. The guiding principles discernible from the above judgments are that the Family Courts, as special forums are minimally regulated and are flexible in terms of what course of action they adopt during proceedings and such relative freedom is geared to ensure that all family disputes are expeditiously decided. Assumption of powers not expressly conferred, though not excluded either, has been approved as long as the purpose of administration of justice is served.
20. In "Abdul Rasheed v. Judge Family Court, Mian Channu and another" (2010 CLC 797), it has been held as follows: "6. A cursory glance at Family Courts Act, 1964 shows that the legislature has left many vacant areas but it does not necessarily mean that embargo has been placed upon the Family Court in the exercise of certain powers, confidence has been shown in the Court to proceed in the matter by exercising its inherent powers to avoid abuse of the process of law without any hindrance of the technicalities imposed by civil Procedure Code, 1908. The purpose of enacting Family Courts Act is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. The purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities. It is settled proposition of law that Judge Family Court is competent to regulate its own proceedings as the West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances."
21. In "Muhammad Ismail v. Superintendent, District Jail, Sheikhupura and 2 others" (2007 CLC 128), it has been held as follows: "Although Section 13(3) of the Act, 1964 does not expressly allow detention of a judgment debtor, yet such course was endorsed in the following words:
7. The execution of money decrees is governed by section 13(3) of the Family Courts Act, 1964, whereby the learned Executing Court could summon the judgment-debtor to pay maintenance allowance and on his refusal to pay the Court could proceed and adopt coercive measures. In the instant case the learned Executing Court before passing order against the judgment-debtor for his committal in the judicial lock-up made concerted efforts in order to recover the decretal amount from him in execution of the decree passed against him for maintenance. However, the efforts of the learned Court were frustrated by the delaying tactics employed by him.
PURPOSIVE AND INCLUSIVE INTERPRETATION OF PROVISIONS CONFERRING JURISDICTION:
22. "Oil and Gas Regulatory Authority through Secretary v. Sui Northern Gas Company Limited and others" (2018 SCMR 1012) gives an exhaustive and inclusive interpretation of the powers of Oil and Gas Regulatory Authority (OGRA) to decide disputes with not only its consumers but persons applying to become its consumers. A company applied for the grant of sui gas connection and upon refusal of the distributing licensee (Sui Northern Gas Pipeline Limited) filed an appeal with OGRA. The learned Sindh High Court held that OGRA had no jurisdiction to hear an appeal against refusal of grant of connection. The Hon'ble Supreme Court held that since sale and distribution of gas is a regulated activity and OGRA is empowered to decide any dispute regarding regulated acidity between the licensee and third party; issue regarding any component of activity of sale including the decision of non supply of connection i.e. prior to the initiation of regulated activity can be determined by OGRA. "12. Perusal of the Ordinance, 2002 shows that its purposes include the regulation of activities of gas companies, protection of interests of the consumers and to ensure fair dealing and facilitation of the connections. Therefore, in our opinion to oust jurisdiction of the appellant in such matters would defeat the purpose of the law and leave the consumers remediless.
23. In "Syed Fakhar Imam v. Muhammad Raza Hayat Miraj and 5 others" (2009 CLC 1), it has been held as follows: "Although a power to dismiss in default was available to the Election Tribunal, no power of restoration was specifically provided. However, applying the purposive approach, the election tribunal held that 8....Undoubtedly, there is a provision in the Act to cater with the situation where the petitioner does not appear and by virtue of section 72 of the Act, the election petition can be dismissed on account of non-appearance of the petitioner but the Legislature has not made any provision to give the power to restore the election petition, dismissed in default. Ex facie, it appears that the intention of the Legislature was/is that the election petition once dismissed in default should not be restored, but on a closer scrutiny, it appears that this omission cannot be taken or treated as an insurmountable hurdle to provide a remedy to a litigant, who for some genuine reasons or circumstances beyond his control fails to appear before the Election Tribunal to pursue his Election Petition. For example, an election petitioner due to some unavoidable circumstances reaches the Tribunal just after five minutes of dismissal of his Election Petition due to his non- appearance, can he be left remediless. The answer would definitely be an emphatic no. For providing relief to such an applicant the provision of section 64 of the Act, which gives the Tribunal all the powers of a civil Court, trying a civil suit under the Code of Civil Procedure, can be validly employed."
24. In "Additional Collector-II Sales Tax, Lahore v. Messrs Abdullah Sugar Mills Ltd. And others"
(2003 SCMR 1026) it has been held as follows: "Learned counsel for the petitioner has argued that the learned Judges of the Lahore High Court have got no jurisdiction to grant interim relief under section 47 of the Act as the same has not been provided specifically. ....Ouster of jurisdiction is always through express words which can never be implied. Here in this case under section 47 of the Act, the High Court is not debarred from issuing an interim order. It is an established principle of law that whatever is not prohibited, it is permitted unless is specifically violates any law or rules..... There is another established principle of law which cannot be lightly brushed aside that where a Court is competent to allow final relief, it has also got the jurisdiction to allow interim relief...."
25. In all judgments cited above, the provisions conferring jurisdiction on any court or tribunal have been interpreted in a way to make allowance for resorting to powers and for assumption of jurisdiction in matters which are not expressly provided but are not expressly excluded either. Here, the jurisdiction for entertaining any dispute regarding any matter pertaining to dowry is liberally conferred upon a Family Court by Section 5 of the Act, 1964. Section 7 relating to the institution of suits refers to the terms Plaintiff without specifying the gender of the Plaintiff. Can the words `of wife? be read into the statute instead of 'of Plaintiff' when the matter is that of dowry? Relief sought may be return by the husband or retrieval by the wife.
26. Such interpretation, as the one pursued by the trial court will limit the scope of jurisdiction of the Family Courts even when no such limitation is either prescribed nor would it sit well with the purpose of enactment of the Act, 1964 as discernible from its preamble i.e. WHEREAS it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith; It would additionally disentitle a husband from brining in a cause which falls in exclusive jurisdiction of Family Courts even when no such person specific distinction is made in the Act.
27. In "Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others" (2022 SCMR 566), it has been held as follows: "....The said principle categorically provides that, where the legislature has not provided something in the language of the law, the Court cannot travel beyond its jurisdiction and read something into the law as the same would be ultra vires the powers available to the Court under the Constitution and would constitute an order without, jurisdiction......"
28. In "The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others" (2017 SCMR 1427), it has been held as follows: "8 It is settled law that the principle of reading in or casus omissus is not to be invoked lightly, rather it is to be used sparingly and only when the situation demands it. In fact the Courts should refrain from supplying an omission in the statute because to do so steers the Courts from the realms of interpretation or construction into those of legislation. This principle has been aptly dealt with by this Court in judgment reported as Abdul Haq Khan and others v. Haji Ameerzada and others (PLD 2017 SC 105) in which it was observed that:- The reading in of words or meaning into a statute when its meaning is otherwise clear is not permissible. As a matter of statutory interpretation, Courts generally abstain from providing casus missus or omissions in a statute, through construction or interpretation. An exception to this rule is, when there is a self-evident omission in a provision and the purpose of the law as intended by the legislature cannot otherwise be achieved, or if the literal construction of a particular provision leads to manifestly absurd or anomalous results, which could not have been intended by the legislature. However, this power is to be exercised cautiously, rarely and only in exceptional circumstances.
29. Refusal of the learned Family Court to assume jurisdiction over the subject matter of dowry when a cause is brought by a husband would not only defeat the purpose of Act, 1964 which provides a unified forum for resolution of all family disputes falling within the jurisdiction conferred through Section 5 but will also amount to restricting the meaning of the term Plaintiff in Section 7 without there being any circumstances justifying such interpretation and when the legislature has not drawn any such distinction.
30. Hence, it is declared that the refusal by a Judge Family Court in entertaining the matter in issue is bad in law. The same is declared to be of no legal effect.
31. The petition is allowed in the above terms.