Writ Petition No.8357 of 1997 and Writ Petition No.8358 of 1997 are decided by one consolidated order/judgment as having common question of law and facts. The brief facts out of which the present controversy arises are that respondent No.3 filed suit for maintenance as well as suit for recovery of dower which were decided by the trial Court by one consolidated judgment and decree, dated 12-12-1990. The petitioner being aggrieved by the judgment and decree of the trial Court filed two independent appeals before the learned District Judge, D.G. Khan, which were entrusted to the learned Additional District Judge, D.G. Khan, who vide his consolidated judgment dismissed the same vide judgment and decree, dated 18-3-1997. The respondent filed an execution petition before the Family Court and the petitioner filed objection petitions on 12-11-1996 on the ground that the provisions of Civil Procedure Code are not attracted as Family Judge has to regulate its proceedings under the Family Courts Act, 1964. The objection petition was dismissed by the trial Court vide its consolidated judgment and decree, dated 26-6-1997. The petitioner being aggrieved filed two independent appeals before the learned District Judge which were entrusted to Additional District Judge-II vide his consolidated judgment dismissed both the appeals vide judgment and decree, dated 10-10-1997; hence the present writ petition.
2. Learned counsel of the petitioner contended that both the Courts below did not consider the mandatory provision of section 13(3) of the Family, Courts Act, 1964 and wrongly relied upon section 47 of C.P.C. Learned counsel of the petitioner relied upon PLD 1970 Pesh. 52; 1987 CLC 1277; 1986 CLC 2381.
3. I have given my anxious consideration to the contention of the learned counsel of the petitioner and gone through the record with the assistance of the learned counsel. It is proper and appropriate to reproduce the relevant sections of West Pakistan Family Courts Act, 1964:--- which are as follows:- "Section 13(3).-- Where a decree relates to the payment to money and the decretal amount is not paid within the time specified by the Court, the same shall, if the Court so directs to recover as arrears of land revenue, and on recovery shall be paid to the decree-holder:---
(4) The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct.
(5) A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems fit.
Section 17. Provisions 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. "
The purpose of enacting the special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities which are hindrance in the ultimate justice between the parties. Therefore, the Court has to regulate its own proceedings as West Pakistan Family Courts Act, 1964 does not make provision for every conceivable eventuality and unforeseen circumstances. Reliance can be placed on "Khalil-ur-Rehman's Bhutta v. Razia Naz 1964 CLC 890. It should proceed on the premises that every procedure is permissible unless a clear prohibition was found against it in law. The Court in such circumstances cannot and should sit like a distant spectator to witness a legal battle being fought before it by two adversaries. It should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path. In the family disputes, this is all the more necessary and may be this was the reason for enacting a special statute conferring exclusive jurisdiction on the Family Courts to decide these specified family dispute. I am fortified by the judgment reported as Ijaz Mahmood v. Mst. Humera 1983 CLC 3305. Section 13 of the West Pakistan Family Courts Act, 1964 was interpreted by my learned brother Malik Muhammad Qayyum, J, in Muhammad Ramzan v. Mst.
Afshan Kanwal and 2 others 1991 CLC 1823 and the relevant observation is as follows:-- "If the decree relates to payment of money, the decretal amount can be recovered as arrears of land revenue but if the Court so directs. This subsection is in the nature of an enabling provision and provides an additional procedure which can be adopted for enforcing the decree under a specific order of the Court directing the recovery as arrears of land revenue. It does not however, in any manner effect the general provision in subsection (4) for execution of the decrees passed by the Family Court. If subsection (3) and subsection (4) are read together, the inevitable conclusion is that all decrees passed by the Family Courts are to be executed by it or by such other Civil Court as the District Judge may by special and general order direct. In matters where the decree relates to recovery of money an additional power is vested in Court to direct the recovery as arrears of land revenue. There is no warrant, however, for construing subsection (3) as ousting the jurisdiction of the Family Court to execute the decree.
(6) Furthermore, even in cases where the decretal amount is directed to be recovered as arrears of land revenue, the execution petition has to be filed before the Family Court, which may forward the warrants to the Collector for recovering the money as arrears of land revenue.
(7) Reliance of the learned counsel in the case reported as Lal Muhammad and another v. Mst. Niaz Parwara (PLD 1970 Pesh. 52) is not apt as the dispute in that case related to a decree for restitution of conjugal rights. As regards the other precedent relied upon by the learned counsel namely Nasir Khan v. Tahira Rashida (1986 CLC 2381) the ratio in that case goes against the contention of the learned counsel for the petitioner rather than advancing it for what has been held in that case is that Family Court can execute the decree for recovery of money but cannot commit a person to civil prison without following the procedure prescribed under section 13(3). There is nothing in that judgment to suggest that the execution petition cannot be filed before the Family Court or that even in the absence of a specific direction to recover the money as arrears of land revenue, the decree cannot be enforced in any other manner by the Family Court. "
4. It is pertinent to mention here the judgment relied by the learned counsel of the petitioner was distinguished in the aforesaid judgment. The judgment of Peshawar High Court PLD 1970 Pesh. 52 was also considered in the Division Bench of Peshawar High Court reported in 1989 CLC 1360 and was distinguished in para. 7 which is reproduced hereunder:-- "7. The learned counsel cited a case decided by this Court, Lal Muhammad v. Niaz Parwar' reported in PLD 1970 Pesh. 52 at the Bar. This decision, I am afraid, will not advance the case of the petitioner inasmuch as the question before the learned Single Judge primarily related to the execution of a decree of conjugal rights and it did not necessitate to examine in depth the implication of the execution of a money decree, as in the instant case in the perspective of subsection (3) of section 13 of the Act. "
Section 13 was also interpreted in Qurban Ali Khan's case by the Karachi High Court in PLD 1993 Kar.
159 and the relevant observation is as follows:-- "The powers of Family Court cannot be restricted to recover the decretal amount only as arrears of land revenue in money decree, but the were power conferred on the Court in the matter of execution of other decrees of the Family Courts, in my humble view is to be extended to money decree also in the context of what has been stated above."
It is clear from the above discussion that section 13(3) only provided a machinery regarding manner of recovery of the decretal amount, therefore, the contention of the learned counsel that omission of the Court not fixing a time, the decree of the Family Court is not executable is not sustainable in the eyes of law because it does not relate to the manner of execution. Even otherwise as mentioned above, 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.
Looking at the provisions as a whole, it is, therefore, clear that 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. It has, m every sense of the term, brought about only procedural changes and not affected any substantive right. Reliance can be placed on PLD 1984 SC 95. The provisions of C.P.C. Are not applicable is stricto senso in the proceedings before the Family Court but the principles of C.P.C. Are attracted specially when there is no conflict between the provisions of C.P.C.
And provisions of Family Courts Act. I am fortified by the judgment of Honourable Supreme Court "Malik, Khizer Hayat Khan Tiwana v. Mst. Zainab Begum" PLD 1967 SC 402, the relevant observation at pages 409 and 410 are as follows:--- "Even if the procedure of the Code can be said to be attracted to proceedings under the Act where no specific provision has been made in the Act itself that must be under the terms of section 141 of the Code itself only as far as it can be made applicable'. This clearly indicates that there can be no blind or rigid adherence if the nature of the cause or matter itself gives a contrary indication. Apart from the scheme of the Act itself to which the learned counsel for the respect has with reason adverted we are also of the view that in a proceeding under the Act the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco parentis to the minor. This is not a jurisdiction, therefore, in which there can, by its very nature be any scope for any undue adherence to the technicalities.
(1-A) Omission to mention time in decree means decree be executed immediately.
(1) No body shall be prejudice by the act of the Court. PLD 1975 Lah. 7.
(2) Decree can be executed within reasonable time.
(3) Proceeding under the Family Courts Act apart from the scheme of the Act itself that in a proceeding under the Family Courts Act should not lose sight of the fact that the overriding consideration is always to avoid technicalities.
(4) Every Court has the inherent jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court or to correct its own orders as to express its real intentions to avoid technicalities, which is fully supported by the preamble of the West Pakistan Family Courts Act, which is reproduced hereunder.
(5) Whereas it is expedient to make provision for the establishment of the Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.
I am fortified by the judgment of the Honourable Supreme Court of Pakistan PLD 1989 SC 532 and 1993 SCMR 363.
5. Both the Courts below concurrently decided against the petitioner, therefore, writ petition is not maintainable. Reliance can be placed on PLD 1981 SC 522 and PLD 1981 SC 246.
6. In view of what has been discussed above, this writ petition is dismissed in limine.