' By invoking the Constitutional jurisdiction of this Court, petitioner Muhammad Zafar has assailed the orders dated 21-5-1995 and 30-4-1995 passed by VIth Additional District Judge, Karachi and IX, Civil and Family Judge (South), Karachi respectively. The impugned order of the Appellate Court (VIth A.D.J.) passed in Family Appeal No, 13 of 1995 runs as under:-- "Heard. The impugned order does not fall within the purview of section 14 of Family Courts Act, 1961 as such this appeal is not maintainable therefore the appeal is dismissed in limine."
2. The background leading to filing of the petition is that respondent Mst. Shahnaz Bibi has filed Suit No, 85 of 1994 for Dissolution of Marriage against the petitioner. Written statement submitted by the petitioner consists of two preliminary legal objections, which are general in their nature and read as under:--
(i) The suit as framed is not maintainable under the law and is hit by various provisions of Family Courts Act/Ord., amendments made therein and thereafter; and
(ii) There exists no cause of action.
' On 23-10-1994 Mst. Shahnaz Bibi was examined by the Court but after her examination-in-chief the learned counsel for the petitioner after asking only four questions about the address of the respondent, moved an application for adjournment. The matter was, therefore, adjourned to 31-10- 1994 for further cross-examination.
' On 31-10-1994 when the matter was taken up for the remaining cross-examination, the learned counsel for the petitioner moved an application instead of cross-examining the respondent with a prayer to dismiss the family suit or return the plaint to the plaintiff/respondent to file it in the Court of proper territorial jurisdiction. After hearing the parties, the learned IXth Civil & Family Judge (South) at Karachi dismissed the said application vide order dated 30-4-1995 with observations that the present petitioner had moved application with mala fide intention to delay the matter.
' Family Appeal No, 13 of 1995 filed by the petitioner against the said order, as mentioned above, was dismissed in limine as stated in para. 1 above. Hence the present petition.
3. Contentions of the learned counsel require interpretation of the words "a decision given" used in section 14 of the Family Courts Act, 1964 (hereinafter referred to as 'the Act') which reads as under:- - "14. Appeal.--(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable--
(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge, or an Additional Judge; and
(b) to the District Judge in any other case.
(2) No appeal shall lie from a decree by a Family Court--
(a) ................
(b) ..
(c) "
4. Averments advanced by the learned Advocate rest upon the claim that incorporation of the words "a decision given" refer to or include in those orders, other than decree, including interim orders passed by a Family Court on any application moved during the pendency of any case.
Hence it was urged that appeal against the order of the Family Court on the point of jurisdiction was maintainable and the appeal against that order could not be dismissed on the point of maintainability. The contention of the learned counsel is supported by a decision reported as H.
Munawar Ali v. Mst. Sarwar Bano (1989 MLD 54) authored by Sardar Muhammad Dogar, J. Of Lahore High Court who observed that: "It is clear from the wording of subsection (1) of section 14 of Family Courts Act that the procedure laid therein for having recourse to the Appellate Courts not only pertains to the 'decrees passed' by the Family Court but the 'decisions given also'. The incorporation of the words 'a decision given' for having recourse to Appellate Courts obviously. Rather clearly,refers to others orders than decree.
Decisions will include the interim orders passed during the proceedings or the orders passed on any application arising out of the proceedings. The comprehensive language of the section leaves no room to doubt that no party aggrieved by any order can have a recourse to Appellate Court other than the one provided in the section. It is not only, commonly known, but well established too, that where a special provision has been made against the order passed by a Court or 'authority', the parties cannot have recourse to any forum other than that."
(Underlining is my own).
' On the other hand, there is a series of judgments wherein it was held that interlocutory orders do not amount to a "decision" and against such an order appeal under section 14 of the Family Courts Act is not maintainable. Reference in this regard can be made to a case reported as Adnan Afzal v.
Col. (Retd.) Sher Afzal Khan and 2 others (PLD 1982 Lah. 755) authored by Khalil-ur-Rahman Khan, J.
Of the Lahore High Court who after taking into consideration the cases reported in PLD 1981 SC 522, PLD 1981 Lahore 761, PLD 1981 Quetta 15, and PLD 1982 Lahore 401, observed: "In all these cases, the principle laid down is that High Court while interfering with orders or judgments of final Tribunals or Courts has only to see whether Tribunal or Court acted without jurisdiction or in violation of relevant statute on law' as laid down by the superior Courts, and that a Court or Tribunal set up under ordinary law having jurisdiction to decide a particular matter has jurisdiction to decide it rightly or wrongly. The aforenoted dictum laid down by the learned Judges of the Supreme Court was followed in the other cases mentioned above. Following respectfully the above dictum of the Supreme Court I propose to examine the question whether the learned Judge Family Court could legally assume jurisdiction on the basis of the three applications submitted by the respondent and whether the impugned order was passed with lawful authority. Taking firstly, the order passed by the learned Judge in appeal, it will be noted that the appeal was held to be not maintainable on basis of the view taken in S. Azharul Hassan Naqvi v. Mst. Hamida Bibi (1979 CLC 754). Undoubtedly. Interlocutory orders do not amount to a 'decision' and against such an order appeal under section 14 of the Family Courts Act was not available. The appeal was, therefore, rightly dismissed as not maintainable. It will, therefore, follow that there being no remedy available under law against the order passed by the Judge Family Court, the Constitutional petition will be maintainable provided it could be established that the impugned order was otherwise without jurisdiction and illegal."
(Underlining is my own).
5. Before embracing any of the two views, as expressed by two Hon'ble Judges of the Lahore High Court, I consider it necessary to point out that Islamic Laws, in their nature, on family disputes especially of divorce appearing in the Holy Qur'an and Ahadith of the Holy Prophet Muhammad (peace be upon him) are very simple, transparent and most effective for summarily disposal of matrimonial disputes. The Preamble of the Act also embodies this spirit in the following words: "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 for matter connected therewith."
' Another important feature of the Act is that Evidence Act and Code of Civil Procedure, 1908, except sections 10 and 11, shall not apply to proceedings before Family Court as is evident from section 17 of the Act which runs as under:-- "17. Provision of Evidence Act and Code of Civil Procedure not to apply.--(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure 1908, except sections 10 and 11, shall not apply to proceedings before any Family Court."
' If section 17 of the Act is read with Preamble of the Act, then purpose of this provision of law seems nothing but to keep the proceedings before the Family Court saved from procedural technicalities of the Evidence Act (Qanun-e-Shahadat) and the Code of Civil Procedure.
' Note.--Although the Zia's Martial Law Regime replaced the Evidence Act by `Qanun-e-Shahadar, by claiming that Islamic Law of Evidence has been introduced by repealing un-Islamic Law of Evidence yet everyone knows that subjectively there is no difference between the repealed Evidence Act and promulgated Qanun-e-Shahadat. So far as section 17 of this Act is concerned even the words 'Evidence Act' was not replaced by Qanun-e-Shahadat. To avoid any complication the word 'Evidence Act' be read as `Qanun-e-Shahadar.
' From this specific provision of law also it can be easily gathered that a Family Court is not a Court under the Supervisory Jurisdiction of the High Court under section 115, C.P.C. Deep analysis of this situation brings into light two important legal aspects which can be reflected as under:--
(i) When Code of Civil Procedure and the Evidence Act (now the Qanun-e-Shahadat) are not applicable to Family cases before the Family Courts and/or the High Court has no supervisory jurisdiction over the Family Court and section 14 of the Act provides appeal only against such orders which fall within the definition of words "a decision given or decree passed, then the aggrieved parties are left with no other alternative but to invoke the Constitutional jurisdiction of the Court to seek their remedy not available under any other law against all other orders passed by the Family Courts provided the impugned orders appear to have been passed without jurisdiction and are illegal.
(ii) The Family Courts are required to reduce the duration of litigations by adopting all principles of the natural justice instead of sticking strictly to the procedural technicalities of Evidence Act (Qanun-eShahadat) or the Code of Civil Procedure which are usually used in civil suits to cause scandalous delay in disposal of cases with the consequences that juice of beauty possessed by youngness full of dreams and sentiments is fully sucked by poisonous stings of passing time, particularly of females, and their lives start fading like withering flowers.
6. Keeping these general realities in view as well as the delay caused besides certain sorrowful aspects of the case such as examination-in-chief of respondent which was completed on 23-10- 1994, but the cross-examination is being kept pending by the Trial Court and the petitioner's Advocate till date apparently with no stay order from any higher forum, I decided to deal with this case in detail to some extent to provide certain guidelines for the disposal of such cases as well as to bring on record my displeasure regarding the delay in disposal of this case. If there was no stay order before the Judge Family Court from any higher forum, then the act of stopping or discontinuing the proceedings was unwarranted and most unappreciable.
7. After hearing the learned counsel I realized that one of the main questions relates to the applications moved in Family Suits during their pendency and the orders passed thereon by the Court. Whether the orders passed by the Family Court on each and every applications can be treated interlocutory?
' Second question relates to the conflicting view appearing in different judgments regarding interpretation of the words "a decision given" as used in section 14 of the Family Courts Act, 1964; and The third question relates to invoking of the Constitutional jurisdiction of the High Court against the orders passed by Family Courts.
8. Regarding the first question, I am of the opinion that every order passed by a Family Court during the pendency of a suit cannot be treated interlocutory, unless the nature of such order reflects so.
To test whether an order passed on any application by a Family Court be treated interlocutory or not the Appellate Court must find out what possible orders could be passed by the Judge Family Court on such applications. If the nature of an order appears to be final then it may not be treated interlocutory. For example, if any of the contesting parties moves an application praying therein that the Court has no territorial jurisdiction to proceed with the case, therefore, the family suit be dismissed or the plaint be returned to the plaintiff for filing the same in the Court of competent jurisdiction then the Judge Family Court, after receiving such application has these options i,e,, (i) to allow the application, (ii) to dismiss the application, or (iii) to defer the application for the time being by passing any order other than allowance or dismissal:
(a) In case the Judge Family Court allows the application, the family suit would be dismissed if the plaint is considered by the Court not to be returned on the ground that C.P.C. Is not applicable to family cases, therefore, Order VII, Rule 10, C.P.C. Cannot be invoked to return the plaint. It is thus evident that this type of order is final in its nature. In this option order passed on the application moved by any of the contesting parties cannot be treated "interlocutory".
(b) If the family Court dismisses the application, as was done in the petitioner's case, even then it is evident that the Family Court has finally decided the question of jurisdiction which cannot be raised again during subsequent proceedings before the Court except in appeal. If any point becomes appealable after the disposal of any suit then it is strange that the said point if finally decided during the pendency of the suit, be treated interlocutory. Therefore, I am of the opinion that order of dismissal in these circumstances also possesses the characteristics of finality in its nature.
(c) If the Court neither allows nor dismisses the application on the point of jurisdiction for the time being and orders only to frame an issue on that point to be decided at the initial stage as preliminary issue or at the time of final disposal as one of the issues of the suit, then such an order may be treated interlocutory because the issue raised in the application has not been finally decided.
According to my point of view keeping the issue of jurisdiction pending till the final disposal of the case is against the principles of natural justice, Courts are required to decide such an issue in its initial stage as and when the same is raised provided it has force in it. For example, if an application in a civil suit is moved under Order VII, Rule 11, C.P.C., it should be decided first before proceeding a step further.
In the light of above discussion, I am of the view that if an order of dismissal or allowance passed on an application in respect of any issue has finally decided the said issue, then such an order possesses the characteristic of finality notwithstanding to the pendency or final disposal of the case on the basis of that order and an appeal against such an order would be maintainable. If no final order regarding an issue has been passed on an application and the point raised by any party has been deferred for the time being, then such order, can be termed as "interlocutory".
' It may not be out of place to mention that the words "Interlocutory" in its dictionary meaning means "not final or definitive", pronounced during the course of a suit pending final decision as "an interlocutory divorce decree". (Websters' New Universal Unabridged Dictionary). Therefore, an order passed on an application cannot be treated interlocutory if the Court has given a final or definitive decision on an issue relating to the maintainability of a suit or the jurisdiction of the Court.
' In this regard I would also like to refer the concept of "Interlocutory" from Wharton's Law Lexicon (Fourteenth Edition) which appears on page No,529 as under:-"Interlocutory.--An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."
' Similarly section 94, C.P.C. Also provides some help to understand the real import of an interlocutory order.,Section 94, C.P.C. Runs asunder:--
94. Supplemental proceedings.--In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed.
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient.
(Underlining is my own).
The above-quoted clause (e) gives clear impression that any such interlocutory orders can be passed as may appear to the Court to be just and convenient in order to prevent the ends of justice from being defeated. As the question of jurisdiction finally decides the right of the contesting parties as well as of the Court regarding continuance or ending of proceedings of any case in a Court and moreover such an order is not passed to prevent the ends of justice from being defeated, therefore, I am of the view that an order passed on the point of jurisdiction of the Court, if decided finally and not deferred, can never be treated as interlocutory order.
' On the basis of this proposition an order of dismissal (as in the present case) or allowance of an application on the point of jurisdiction, in my opinion, is not an interlocutory order, therefore, an appeal against such order under section 14(1) of Family Courts Act, 1964 would be maintainable provided the same is not hit by section 14 (2) of the said Act.
8. This proposition also embraces the view that expression "a decision given" appearing in section 14 of the Act has to be construed under the rule of ejusdem generis to provide appeals only against orders which are final in their nature and not interlocutory. If the case of present petitioner is tested on the basis of this proposition, then it radiates that as the Judge, Family Court, had finally decided the question of jurisdiction and as the said application was not hit by section 14(2) of the Act, therefore, appeal against the said order under section 14(1) of the Act was maintainable.
' In alternate, if it is presumed that neither the order was appealable nor other remedy was available under law against that order of the Family Court, then the aggrieved party would be left with no other alternate but to invoke Constitutional jurisdiction provided the impugned order was passed without jurisdiction and/or was illegal. In the light of above discussion, the question which gained importance before this Bench in this case is whether dismissal of application on the point of jurisdiction by the Judge, Family Court on merits and dismissal of appeal by the Appellate Court on technical ground can attract the Constitutional Jurisdiction of this Court or not?
' The answer returns in positive. My reasons for holding so are as under:-- 'If the order of the learned Additional District Judge (South), Karachi is set aside and the matter is remanded back to that Court to decide the same by afresh by treating the impugned order of the Family Court appealable and as a result of remand if the Appellate Court upholds the order of Judge, Family Court on merits, then the petitioner will again rush to the High Court to invoke the Constitutional jurisdiction against the order of the Appellate Court. It is, thus, obvious that it shall cause further delay in disposal of the family suit which is against the spirit of the Preamble of the Act as pointed out in the foregoing lines.
9. Keeping in view all these expected consequences, realising the effects of reflections of averments advanced by the learned Advocate which were not too convincing to allow the petition, apprehending the purpose of Preamble of the Act to be defeated and sensing scandalous delay in disposal of the family case by thwarting the main proceedings in such manners as experienced in the past, I admitted the petition on 21-6-1995 and fixed it for regular hearing on the same day to find out the justness or impropriety of the order of the Judge, Family Court passed on merits, notwithstanding to the view taken by the Appellate Court on technicalities, by seeking support from the cases reported in PLD 1973 SC 236, PLD 1982 SC 413 and 1986 SCMR 1561. After weighing the contentions of the learned advocate in the scales of justice, I found the same to be devoid of any meritoriousness. My reasons, for holding so, are based on the following facts available on the record of the case:
(i) It has been mentioned in the plaint that parties lived together within the limits of P.S. Mehmoodabad, as husband and wife (para. 5 of the plaint). This fact was not specifically denied in the W.S. The relevant portion of the W.S. Runs as under:- `That as regards the cause of action in para. 5 of the plaint, it is submitted that no date and time is given and there exists no cause of action and the defendant has never neglected to maintain the plaintiff or have maltreated her."
' It is thus clear that objection regarding jurisdiction of the Court was not specifically denied.
(ii) Legal position relating to jurisdiction is incorporated in Rule 6 of the West Pakistan Family Courts Rules, 1965 which runs as under:- "Rule 6. The Court which shall have jurisdiction to try a suit will be that within local limits of which--
(a) the cause of the actions wholly or in part has arisen; or
(b) where the parties reside or last resided together: ' Provided that in suits for dissolution of marriage of dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction."
' A bare perusal of the above rule leaves no ambiguity that a wife has four options to institute her suit for dissolution of marriage in any such Court within the local limits of which--
(a) The cause of action wholly or partially arose;
(b) she resides or her husband resides;
(c) she last resided with her husband; or
(d) she ordinarily resides.
' Thus, according to my point of view, the address given in the Nikahnama of the parties or the address given in the title of the suit is immaterial for the purpose of instituting a suit for dissolution of marriage.
' If it appears from the record that respondent Shahnaz Bibi resides or last resided with her husband or is ordinarily residing with any of her relatives or at a place where the cause of action wholly or partially arose then she can institute her case in any of the four Courts if each option to institute the suit was attracted by different Family Courts.
' In presence of the above legal position two letters brought on record are of great importance to decide the issue in dispute. The petitioner had sent one letter to S.H.O. Mehmoodabad and the other to the Inspector-General Police of Sindh levelling allegations against his mother-in-law. The address of the petitioner in those letters appears to be: "House No, 804, Street No, 10, Sector E, Akhtar Colony, Karachi."
This address falls within the local limits of Judge Family Court whose jurisdiction was assailed by the petitioner on the ground that address in the title of the plaint attracted the jurisdiction of another Family Judge.
(iii) In spite of this documentary evidence, the learned Advocate shocked me by insisting that the address of plaintiff and the defendant shown in the title of the plaint is of "Qayyumabad Karachi" and, therefore, the Court is bound to believe that the parties are residents of Qayyumabad and not of Akhtar Colony. I think that the learned Advocate must be fully aware of this reality that "falsehood has no legs to stand upon". If the learned Advocate had gone through the address of the plaintiff/petitioner for service submitted by him alongwith the Muhammad Zaffar Khan v.
Shehnaz Bibi 105 (Shafi Muhammadi, J) W.S., he would not have insisted upon his stand because the address of the plaintiff for service is also the same as in the abovementioned referred letters.
This aspect cannot be ignored by this Court to presume that the present petitioner had been or must be residing on the address given by him alongwith the W.S. Himself and the said address falls within the local limits of the Court whose jurisdiction is being assailed by him.
(iv) In the last, the learned Advocate drew my attention to the incomplete cross-examination done by him on 23-10-1994 and which appears to be pending since that time. There is nothing in the cross-examination to show that the parties never resided within the local limits of the Police Station Mehmoodabad.
'Although the petitioner has stated in his affidavit filed in support of the application for dismissal of the suit that none of the documents (show) that the plaintiff or the defendant ever lived within the jurisdiction of Mehmoodabad Police Station, yet on the face of letters mentioned above and address of the petitioner on those letters sent by him as well as the address of the petitioner's service submitted through the learned advocate for the petitioner expose him fully in the eye of the Court.
' All these factual aspects radiate the justness and propriety of the order passed by the Judge, Family Court and the only impression which springs out of the proceedings before the Appellate Court or this Court is that the petitioner wants to delay the matter by hook or crook.
9. In the light of the reasons as listed above, the petition, being devoid of any merits, is dismissed.
10. Before parting with this judgment, I consider it necessary to issue following directions on account of delay caused in disposal of the Family Suit due to proceedings before the Appellate Court as well as before this Court:
(i) The Trial Court shall not adjourn this matter for more than seven days after every date of hearing till the matter is finally disposed of unless there are unavoidable circumstances not to comply with this direction.
(ii) If any of the parties remains absent on any date fixed for recording of evidence or arguments, the matter be adjourned to the next day unless consented in writing by the party present in the Court for another date.
' These directions are being issued to prevent the purpose of Preamble of Family Courts Act from being defeated.
(iii) If there is no stay from any higher forum, the Judge, Family Court is not supposed to adjourn the proceedings such a recording of evidence, hearing of arguments, etc.
11. I also consider it appropriate to bring on record the following recommendations for the Government of Sindh regarding Family Courts with reference to section 4 of the Family Courts Act, 1964 which runs as under:--- "4. Qualification of Judge.--No person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge and Additional District Judge, a Civil Judge or a Qazi appointed under the Dastural Amal Diwani Riasat Kalat."
The word "Civil Judge" include "Second Class as well as Third Class Judges" in Karachi (Sindh) who serve as Family Judges. As Constitutional jurisdiction is invoked in large number of cases against the orders of Family Courts, therefore, such cases in the Trial Court be dealt by Senior and more experienced Judges as compared to the Second or Third Class Civil Judges. In this connection burden of Civil Suits can be shifted from the Senior Civil Judges to the IInd and Third Class Civil Judges by increasing their pecuniary jurisdiction and in return, the family cases, which are most sensitive can be dealt by the Senior Civil Judges.
Note.--It is necessary to point out that all Judges of Family Courts are expected to dispose of Family Cases expeditiously not later than six months as per circular/letter, dated 5th July, 1987, issued by the High Court of Sindh.