' The brief facts giving rise to this petition are that the petitioner who is a citizen of India visited Pakistan to see her sisters and other relatives at Lahore and solemnised Nikah with respondent No,2 on 11-5-1990 but no Rukhsati was made as her visa expired on 24-5-1990 and she had to leave Pakistan and the respondent was to make arrangements for her Passport and other necessary papers for her Pakistan nationality. Later on the petitioner came to know that the respondent was an addict and had a bad reputation in the society and committed forgery in his Identity Card, and therefore, her immigration papers could not be prepared.
2. The respondent filed a suit for restitution of conjugal rights and after coming to know the said suit, the petitioner through the general power of attorney duly attested by the High Commission for Pakistan, New Delhi filed a suit for dissolution of marriage before the Judge, Family Court at Lahore.
This suit was hotly contested by the respondent who raised an objection that the petitioner could not file the suit for dissolution of marriage through the general attorney and gave an application in this respect to the Judge, Family Court to reject the plaint, who after giving an opportunity of hearing to the parties vide order dated 18-5-1993 dismissed the application and gave a finding that the suit for dissolution of marriage can be filed through general attorney of the plaintiff. Both the suits were later on consolidated and the parties led their evidence on consolidated issues.
3. The first objection that petitioner being Indian national cannot file a suit for dissolution of marriage in Pakistan and that whether a suit for dissolution of marriage can be filed on the basis of general power of attorney and whether a Family Court can review the order passed by its predecessor Court which has attained finality are being dealt in categorically. The first objection whether an Indian national can file a suit for dissolution of marriage while being in India through general Attorney or not is expressly clear from the circumstances of this case. The petitioner was undoubtedly a citizen of India, she visited her sister at Lahore (Pakistan) with a limited visa to stay in Pakistan. During her visit she solemnized Nikah with the respondent and Rukhsati had not taken place. After the expiry of her visa she had to go back to India. There was an arrangement of obtaining a stay for the petitioner in Pakistan between the spouses of the Nikah which could not be arranged as promised between the parties due to the reason that the Indentity Card of the respondent was not free from doubts as there was some erosion about an entry in the I.D. Card of the respondent. The other disputes also arose which resulted in the filing of the suit for restitution of conjugal rights at Lahore by the respondent. The petitioner was served in India through a summon.
Moreover in India there is no such Act as Family Courts Act, and therefore, no such Court as Family Court. The petitioner gave a general power of attorney to her real brother-in-law which was duly attested by the Embassy of Pakistan in New Delhi (India) to contest the suit for restitution of conjugal rights and empowering and authorising her brother-in-law to represent the petitioner in all matters, acts, cases pending or running in any Court of law whenever or where ever her personal attendance was deemed necessary under the law.
4. So far as the question whether a suit for dissolution of marriage or any suit pending in the Family Court can be represented through an agent is crystal clear from section 18 of the West Pakistan Family Courts Act, 1964 which provides:-- "If a person required under this Act to appear before a Family Court, otherwise than as a witness is a Pardanashin Lady, the Family Court may permit her to be represented by a duly authorised agent."
These provisions do not take away the right of a counsel to appear and act for and on behalf of his client. Such a right is duly recognised by section 22 of the Legal Practitioners and Bar Councils Act, 1973.
' In fact this is an enabling provision of law in relation to appearance by any person and to admit that person to be represented through an authorised agent. Khalid Mehmood v. Razi Abbas Bokhari etc. PLD 1979 Lah.
217.
5. Therefore, there is no bar for a lady to be represented through general attorney unless and until her presence is required and directed by the Family Court. The petitioner had rightly filed a suit before the Judge, Family Court through her agent where a suit for restitution of conjugal rights against her was pending adjudication and this was the only possible means where she could escape from the conflict of judgments of two Courts of two countries.
6. The learned Judge, Family Court through the impugned judgment instead of giving issue-wise findings rejected the suit of the present petitioner vide judgment dated 7-2-1995 holding that a suit for dissolution of marriage filed by the petitioner could not be entertained on the basis of the authorised general attorney which did not speak that the said attorney had been assigned power to institute the suit for dissolution of marriage in the Family Court. The respondent previously filed an application objecting to the jurisdiction of the Family Court in Pakistan as well as filing of a suit through a general attorney on behalf of the petitioner. This application was contested by the petitioner and the learned Judge, Family Court dismissed the same vide order dated 18-5-1993.
This order expressly allowed the suit for dissolution of marriage to proceed and fixed it for evidence of the parties. This order remained unchallenged. Both the suits were consolidated and issues were framed. The successor Judge, Family Court under no provision of law could sit over a judgment in futile exercise of review passed by his predecessor Judge, Family Court. There is no such provision of review under the Family Courts Act which is a procedural law. The reasons advanced by the learned Judge, Family Court for reviewing the previous order passed by the Judge, Family Courts are also not convincing. A careful perusal of the general power of attorney does disclose that the said attorney was fully authorised and empowered to represent the petitioner of all matters, acts, cases pending or running in any Court of law, whenever and wherever her personal attendance was deemed necessary under the law. The words "any Court" are sufficient to include the Family Court as well. Therefore, the impugned order is a nullity in the eyes of law and calls for interference in the exercise of the extraordinary jurisdiction of this Court.
7. Therefore, the writ petition is accepted, the impugned judgment dated 7-2-1995 passed by the Judge, Family Court, Lahore is hereby set aside and the case is remanded back to be decided on merits after giving an opportunity of hearing to both the parties by the Family Court Judge, Lahore.
8. The petitioner got married in the year 1993 and she is going through the agony and hardship of prolonged litigation in her family matters. Their evidence is complete and the suit is ripe. Therefore, the learned Judge Family Court is directed to decide this matter within three months of the receipt of this judgment after informing both the parties.
9. There shall be no order as to costs.