SHAKEEL AHMAD, J. Through this single judgment, we intend to decide the instant writ petition and connected Writ Petition bearing No. 169-P/2015, as not only the common questions of law and facts are involved therein, but both the petitions have also arisen out of one and the same order dated 07.02.2015, passed by the learned Judge Family Court/Senior Civil Judge, Abbottabad.
2. This and connected constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, call into question the legal correctness of order of the learned Judge Family Court/Senior Civil Judge, Abbottabad dated 07th February 2015 by which several applications moved by the petitioners were dismissed, while one application filed by the respondent No. 1 for summoning of Nikah Khawan, was accepted.
3. Brief facts leading to the filing of this petition are that marriage of the petitioner No. 1 and Salma Gul (respondent No. 1) was performed at Sheik-Ul-Bandi, Abbottabad on 02.11.2012 as per Muslim rites in lieu of dower amount of Rs. 200,000/- (two lac), however, she was divorced by the petitioner No. 1 on 24.02.2013, and after dissolution of marriage, she started living with her parents at Abbottabad. She brought a suit for recovery of her dower, maintenance allowance@ Rs. 10,000/- per month since January 2013 till May 2013 including period of Iddat, return of dowry articles as per list appended with the plaint, and in alternative its market value, and recovery of gold armament weighing 20 tolas or its market value, allegedly given to her as bridal gift in the Court of Senior Civil Judge/Judge Family Court at Abbottabad.
4. After service of summons, the petitioners put their appearance before the learned trial court, contested the lis by filing their written statements, raising therein many legal and factual objections. From divergent pleadings of the parties, issues were framed on 29.06.2013, and parties were directed to produce their evidence. In pursuance thereof, the respondent No. 1 produced all her witnesses and examined them in Court and closed her evidence on 17.09.2013. After closure of evidence, she submitted an application before the learned trial court for summoning of Nikah Khawan as her witness, simultaneously, the petitioners moved application for return of pictures, produced and exhibited in the statement of PW-1 as Ex.PW-1/2 to 1/7, petitioner No. 1 also filed an application for necessary correction in the examination-in-chief of PW1 and cross-examination of PW-2, and return of plaint for want of jurisdiction. The learned trial court, after providing right of evidence to the learned counsel for the parks, accepted the application of the respondent No. 1, and dismissed all the miscellaneous applications moved by the petitioners through single order dated 07.02.2015. Hence, these petitions.
5. It is worth mentioning that this and the connected constitutional petition was transferred to this Court vide order dated 17.06.2015, on the ground that one of the Hon'ble Judge of this Court (Mr. Justice Lal Jan Khatak) had remained as an associate of Mr. Arif Khan advocate, father of the petitioner. Regarding maintainability of this and connected Writ Petition No. 169-P/2015, the learned counsel representing the petitioners submitted that the constitutional petition is competent against an interim order passed by the Judge Family Court, as he was left with no remedy under the law except to file writ petition. He next submitted that on acceptance of application of the respondent No. 1 allowing her to produce Nikah Khawan as her witness is illegal as envisaged by section 7(2) of the Family Courts Act, 1964. He added that the learned Family Court at Abbottabad has no jurisdiction to take cognizance of the matter. He further submitted that the impugned order is not a speaking order in terms of section 24-A of the General Clauses Act, 1897. He lastly submitted that the impugned order suffers from legal infirmities, therefore, not sustainable in the eye of law.
6. As against that, the learned counsel for the respondent argued that the impugned order does not suffer from legal infirmity, therefore, needs no interference. He next argued that section 7(2) does not place embargo on calling of any witness whose name is mentioned in the list of witnesses and went on to say that name of Nikah khawan is mentioned in the list of witnesses. He further argued that the marriage was solemnized at Abbottabad, and after dissolution of marriage, respondent No. 1 is still residing at Abbottabad, therefore, the Court at Abbottabad is competent to take cognizance of the matter. He lastly argued that once statement of a witness is recorded in the open Court and signed by the Presiding Officer, cannot be altered/modified, and no request for any change can be made in it, and prayed for dismissal of the instant and connected writ petition.
7. We have considered rival contentions of the learned counsel for the parties and perused the impugned judgment and material available on the record.
8. Adverting to question of jurisdiction of the judge Family Court, Abbottabad, urged before us, we find that there is no denial of the fact that the marriage between the parties was solemnized at Abbottabad, and after dissolution of marriage, she shifted to her parents house at Abbottabad, and is residing within the territorial limits of judge Family Court at Abbottabad. The territorial jurisdiction of the Family Court is governed by Rule 6 of the Family Courts Rules, 1965, which reads as under:- "6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which-
(a) the cause of action wholly or in part has arisen, or
(b) where the parties reside or last resided together: Provided that in suits for dissolution of marriage or 'dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction."
9. A perusal of the proviso to Rule 6 of the West Pakistan Family Courts Rules, 1965, reflects that the proviso is limited to suits for dissolution of marriage or dower and enables the estranged wife to bring a family suit in a court, within the local limits, of which she ordinarily resides. The proviso to Rule 6 of the Rules ibid has been inserted to consider the convenience of the wife including the ex- wife involved in the suit. On this score, the finding of the learned trial court cannot be said to be erroneous or without lawful authority.
10. Turning to the point of calling of Nikah Khawan as a witness of the respondent No. 1, on the application moved by her. A plain reading of proviso to Section 7 of the West Pakistan Family Courts Act, 1964, reflects that it empowers the Court to call any witness and produce any document at any stage, if the court considers such evidence expedient in the interest of justice.
Admittedly, the name of Nikah Khawan was mentioned in the list of witnesses. It gives ample power to the Court to call any witness whether named in the list of witnesses or not, much less to say the power to grant time for providing necessary particulars as to the evidence which the witness named in the list of witnesses would depose. Even otherwise law leans in favour of adjudication on merits rather than on technicalities. Since no prohibition exists in the Family Courts Act of 1964 for calling or production of witnesses even if his name is not mentioned in the list of witnesses. In our view, the learned counsel has not committed a legal error by calling Nikah Khawan as a witness for examination in the Court whose name is already available in the list of witnesses. In light of the discussion made hereinabove, we are of the view that the contention of the learned counsel for the petitioners seems to be based on misconception, therefore, cannot be entertained.
11. Coming to application for correction in examination-in-chief of PW-1 and cross-examination of PW-2. It is observed that statements of the said witnesses were recorded in the open Court in presence of the parties and their counsel, they were cross-examined by the defence counsel, and those statements were read over to them, and they accepted the same as correct, and thereafter, the learned Presiding Officer signed those statements, no effort was made by the petitioner or his counsel to move an application before the learned trial court to make claimed correction in those statements before putting signature of the Presiding Officer over it. We noted that the statements of PW-1 and PW-2 were recorded before the learned trial court on 17.07.2013 and 17.09.2013 respectively, however, application for correction in the said statement was moved on 05.10.2013, therefore, under the circumstances mentioned above, the application seeking correction in the statements referred to E above was rightly dismissed by the learned trial court.
12. Turning to submission of the learned counsel for the petitioner regarding return of pictures, we noted that those pictures were produced and duly exhibited in the statement of PW-1 as Ex.PW1/2 to Ex.PW-117, admittedly, those pictures have become part and parcel of the judicial record, therefore, prayer of the petitioners for return of the same was rightly declined by the learned trial court.
13. Attending the last submission of the learned counsel for the petitioners regarding examination of the respondent/plaintiff through the Standing Medical Board to ascertain her medical fitness.
We are of the view, that it will not be fruitful to the petitioners rather would be an exercise in futility, firstly on the ground that, after Rukhsati, the respondent remained with the petitioner for quite sufficient time and performed her marital obligations, and secondly that matrimonial ties between the parties has already been broken, after consummation. In our view, under these circumstances, such a request is not warranted by law.
14. For the foregoing reasons, we find no merit in the instant and connected writ petition, therefore, the same are dismissed. However, the learned trial court is directed to conclude the trial expeditiously, being an old family suit, but not later than three months from the date of receipt of this order. There shall be no order as to costs.