' The petitioner has assailed the judgment and decree passed by the learned Family Judge, Karachi in Family Suit No,1242 of 1979, dated 22-12-1979 and 7-1-1981 respectively.
2. The Respondent No,1 filed the above said suit for dissolution of her marriage with the petitioner under the provisions of the Family Courts Act, 1964 (hereinafter referred to as "the Act"). The petitioner who was in Damam, Saudi Arabia at that time received- the summons by post and made arrangements for his appearance before the learned Family Court through his Attorney Syed Rashid Moid who also happened to be his brother. The petitioner then filed a Written-Statement through an Advocate engaged by his Attorney on- 8-11-1979. On 16-12-1979, when the matter was fixed for pre-trial, the petitioner could not appear in person before the Court, as he was still in Saudi Arabia, but his advocate filed a statement on his behalf, stating that the petitioner was always willing and ready to take back the plaintiff to his house and treat her with love and affection.
However, the learned Judge did not take such statement into consideration, observing that there was no provision in the Family Laws where under such a statement could- be considered and further ordered that the suit would- proceed ex parte against the petitioner. Thereafter, the case was put off to 22-12-1979 for ex parte proof and on the same day, judgment was passed in the case. The petitioner then applied under section 9(6) of the West Pakistan Family Courts Act, 1964 and Rule 13 of the West Pakistan Family Courts Rules 1965 for setting aside such ex parte judgment and decree which was however, rejected by the learned Judge vide order, dated 25th November, 1980. Under such circumstances this constitutional petition has been filed.
3. In the counter-affidavit filed on behalf of the respondent No,1, it has been stated by her that after passing of the decree, dated 7-1-1980 the same was forwarded by the learned Family Judge to the Chairman (Court No,XVIII, Karachi) for further action and on 13-4-1980 the divorce granted to the respondent No,1 by the decree of the learned Family Judge was confirmed by the said Court. A photocopy of such order has also been filed. It has been further stated that after confirmation of the divorce, the respondent No,1 on 19-2-1981 was married to one Mr.Iqbal Haleem and is residing with him there since. It has also been contended that the petitioner after passing of the judgment and decree had failed to immediately apply for setting it aside or even approach Court No,XVIII in the matter, owing to which the divorce was confirmed. It has also been urged that the instant petition has been filed only with a view to harass the Respondent No,1 who was living peacefully with her second husband and for no other reason.
4. The petitioner filed rejoinder wherein it was denied that the petitioner was guilty of inaction as according to him, after the ex parte degree was passed against him on 7-1-1980, the petitioner applied for setting aside such decree on 22-1-1981 and such application was disposed of by the learned Family Court on 25-11-1980. It was further pleaded that the Chairman Court No,XVIII had failed to serve any notice on the petitioner either directly or through his Advocate and as such the Rules and the procedure laid down by law had been violated by him.
5. I have heard Miss Majida Rizvi on behalf of the petitioner and Mr.Muhammad Saleem Qureshi on behalf of the respondent.
6. Miss Majida Rizvi assailed the judgment and decree and subsequent orders, dated 16-12-1979 and 25-11-1980 respectively, passed by the learned Family Judge on the following grounds. Firstly it was contended by her that appearance of a party through a counsel was not barred under the provisions of the Act. Her next contention was that under section 10 of the Act, which relates to pre- trial proceedings, the learned Family Judge could not proceed ex parte in the matter as no such procedure was contemplated thereunder. It was next argued by her that even if the learned Family Judge had decided to proceed ex parte against the petitioner, the latter could still take part in the proceedings and could not be completely debarred therefrom. Lastly it was contended that by debarring the petitioner from the proceedings, the learned Family Judge had acted in violation of the principles of natural justice.
7. The argument of Mr.Muhammad Saleem Qureshi, however, was that the respondent No,1 after her second marriage which took place more than five years ago, has given birth to two children from her second marriage, therefore, any interference with the impugned judgment and decree at this stage would very seriously affect the future not only of the respondent, but her entire family including
8. Turning to the first contention of Miss Majida Rizvi, section 18 of the Act is the only section therein which refers to appearance of parties through agents. It provides that:- "If a person required under this Act to appear before a family Court, otherwise than as a witness is a pardah nashin lady, the family Court may permit her to be represented by a duly authorised agent."
Although provision has been made in the Act only in respect of pardah nashin ladies to appear through their agents, but that in no way can operate in derrogation of a party's right to appear through an attorney or an advocate. In Mst.Saeeda v. Lal Badshah 1981 SCM R 395 it was unequivocally held by the Supreme Court that right of a counsel to appear and act on behalf of his' client was recognised by section 22 of the Legal Practitioners and Bar Councils Act, 1973 and 'such right could not be taken away by section 18 of the Act. It is, therefore, clear that section 18 of the Act does not act as a bar to prevent a counsel from acting on behalf of his client.
9. The next contention of Miss Rizvi is in respect of section 10 of the Act. The sane, inter alia, provides:- "Section 10-Pre-trial Proceeding:- (1)' When the Written Statement is filed, the Court shall fix an early date for a pre-trial hearing of the case.
(2) On the date so fixed, the Court shall examine the plaint, the written-statement (if any), and the of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties and their counsel,
(3) At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.
(4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording evidence.
' It is thus clear from section 10 that at the pre-trial proceedings, the Court has first to ascertain the points at issue between the parties and an attempt is to be made by the Court to effect a compromise or reconciliation between the parties. Section 10, no doubt, contemplates presence of the parties concerned before the Court at the pre-trial hearing, but according to subsection (4) thereof, if no compromise or reconciliation is possible, the Court has to frame issues in the case and fix a date for recording evidence. There is, therefore, no such provision in section 10 under which ex parte proceedings can be ordered due to non-appearance of a party, The only provision in the Act which empowers the Family Court to proceed ex parte is contained in section 9(5), but the same can be pressed into service -only when the defendant in the case fails to appear on the date fixed by the Court for his' appearance and the summons or notice was duly served on him.
Such was not the case in the instant case as it has been shown that the petitioner was being' represented before the Court by his attorney and had even filed a written-statement. Only the petitioner was not present in Pakistan when the pre-trial hearing took place before the learned Family Judge. Therefore, in any case, if the petitioner could not attend the Court, all that the learned Family Judge was required to do under sub-section (4) of section 10 was to frame issues and fix a date for recording of evidence. Since the Act is a Special Law, the procedure provided therein has to be strictly followed. As there is no provision in the Act for fixing the case for ex parte proof in absence of the defendant at a pre-trial hearing, the learned Family Court clearly acted in violation of the procedure provided under section 10.
10. Miss Majida Rizvi has also drawn support from some cases. Earlier decided on the point and the first being the case of Mst.Zhoran Bibi v. Manzoor Ahmed and two others, PLD 1975 Lah.380, decided by the Lahore High Court. In that case Muhammad Afzal Zullah, J. (as he then was) had held that as special procedure had been prescribed by the Act for trial of cases, a trial which had not been held in accordance with the procedure laid down in the Act was rendered not merely irregular but illegal and void. In another case reported as Sadiq All v. Mst.Bashiran Bibi and another 1979 CLC 647, while interpreting the provisions of sections 10 and 11 of the Act, it was held by the same Court that it was possible for the parties to express themselves through their Attorneys or their Advocates and proceedings could not be vitiated on that account. In that case, although it was held that presence of both the parties at pre-trial stage was a mandatory requirement, but it was further held that non-compliance of such provisions would amount to a mere irregularity.
Another case referred to by Miss Majida Rizvi, is the case of Haji Muhammad Ismail v. Judge Family Court Jhang and another 1981 CLC 243. In this case which was also decided by the Lahore High Court, after examining various cases on the point, it was held that personal attendance of a party in Family Court was not indispensable and in given circumstances of a case can be dispensed with. While placing reliance on 1979 CLC 647, it was held by the learned Single Judge of that Court that although the provisions of law under section 10(2)(3) of the Family Courts Act were mandatory and were to be followed in their true spirit, yet violation thereof was only an irregularity which could not invite any penalty. The afacts of the reported case according to Miss Majida Rizvi are identical to the instant case.
11. Reference to the relevant provisions of the Act and the cases on the point, makes it manifestly clear that the learned Family Judge has clearly acted in violation .Of the procedure laid down by the said Act and the principles of justice. Admittedly, the petitioner was not in Pakistan when the suit for dissolution of marriage was filed against him and, therefore, he was being represented at the trial by his Attorney and counsel. Thus the petitioner's non-appearance at the trial certainly could not invite the penalty of ex parte proceedings against him as clearly no such procedure is provided in the Act. It cannot be denied that appearance of the petitioner before the learned Family Court at pre-trial hearing would have entailed expenses and might also have protracted the trial, therefore, the learned Family Judge, under no circumstances, was justified in proceeding ex parte against petitioner as the same was neither permitted by law nor circumstances of the case. Moreover, since the petitioner was being represented by his Attorney and also his counsel who filed statement on behalf of the petitioner, the same should have been accepted as sufficient and the learned Family Judge should hay proceeded with the trial in accordance with the provisions of the Act. The Act is a special law and provides for a special procedure, the learned Family Court, therefore, could not have made deviation from such procedure and followed a different procedure, not provided for by the Act. By proceeding ex parte in the matter, the learned Family Judge also deprived the petitioner of his right to be heard and to be represented at the trial.
It has been further pointed out that the petitioner was not even allowed to cross-examine the respondent No,1 after her affidavit was taken in place of her evidence in the case. Thus the procedure adopted was clearly illegal and the, same has resulted in vitiating all subsequent proceedings including the judgment and decree passed by the' learned Family Judge and the confirmation of divorce later by Court No,XVIII rendering them completely without jurisdiction.
12. Mr.Muhammad Saleem Qureshi, learned counsel for the respondent No,1 although has not controverted the legal position, but his argument has been that the Judgment and decree passed by the learned Family Court cannot be declared null and void now, since the petitioner was not vigilant enough either to get the ex parte order set aside in time or approach Court` No,XVIII of the learned Civil Judge, Karachi, for preventing confirmation of divorce. The learned counsel further pointed out that now when the respondent No,1 has re-married and given birth to two children through her second marriage, no relief as claimed by the petitioner should be granted to him.
13. Against this, Miss Majida Rizvi has stressed that circumstances should not defeat the law. She has further emphasised that in case the impugned Judgment and decree are found to be without lawful authority then the law should take its own ,course. Reliance has also been placed by her on Mst.Kaniz Fatima v. Mumtaz Khan and two others 1983 SCMR 569 wherein the Supreme Court, while upholding the Judgment of the Lahore High Court passed in favour of the husband in somewhat similar circumstances, dismissed the wife's petition observing as follows:- "No doubt the second marriage of the petitioner and the birth of child from that wedlock cannot be ignored, but equally important is the fact that soldiers serving in the national cause, should be protected against in fragment of their rights which are guaranteed by the law, including those relating to matrimony. Such a case which smacks of one-sided unfair treatment to a soldier cannot be ignored either, merely because the wife pursued the litigation and treated the solemn bond of wedlock, to say the least, recklessly and the trial Court failed to observe the ordinary dictates of law. The child it is in record having died, has been saved of the ignominy, to which it was exposed by the mother. The law will take care of the second marriage. The approach of the High Court in exercising discretion against the wife, in circumstances of the case, is unexceptionable. "
14. A question, therefore, arises, whether the relief sought by the petitioner can be granted to him under the given circumstances. It has not been disputed that the respondent No,1 got married and has also given birth to two children from the second marriage and the declaration sought by the petitioner would not only render the second marriage of the respondent No,1 null and void but even the legitimacy of her two children in doubt. On the other hand, one cannot be oblivious of the fact that Muslim woman in Pakistan is permitted under the law to get dissolution of her marriage through a decree of the Court, but if such decree suffers from an infirmity which may render it null and void, then the marriage not having been validly dissolved, would still be deemed to be subsisting. In the instant case, although their is hardly any doubt about the decree obtained by respondent No,1 being illegal and void, but in view of the peculiar circumstances of the, case, would the ends of justice be served if it is declared as such. In this respect, conduct of the petitioner after passing of the ex parte decree against him also cannot be ignored because a question would arise, whether he himself contributed towards bringing about the present situation. Admittedly, the petitioner did not appear before Court No,XVIII 'which confirmed the dissolution of marriage. The explanation given by the petitioner in this respect is, that no notice was received by him from that Court, but -neither the proceedings before Court No,XVIII have been impugned by him in this petition nor such Court has been made a party therein. It is, therefore, not possible to go into such question now. The admitted position is. That the respondent No,1 got married to her present husband on 19-2-1981 which was nearly two months after the petitioner's application for setting aside of ex parte proceedings was rejected by the learned Family Court on 25-11-1980. The petitioner, in fact, should have promptly taken steps thereafter to get the decree set aside but he took more than four months thereafter to file the instant petition. The petitioner has, therefore, shown lack of vigilance in this respect. But even if this inaction on the part of the petitioner is condoned, still this Court, would be too reluctant to grant relief to the petitioner as the future of the first respondent's two children is bound to be affected and for no fault of their own. Relief under Article 199 of the Constitution being purely discretionary, the same may be granted in aid of justice, but not injustice. The Supreme Court case relied upon by Miss Majida Rizvi is also distinguishable because of the different circumstances of this case.
15. For the aforesaid reasons, this petition cannot be allowed and the same is hereby dismissed.
There will, however, be no order as to costs, keeping in view the nature of the points involved.