' This petition under Article 102 of the late Constitution has been filed to obtain a direction to the Judge, family Court, in exercise of its powers of superintendence and control.
2. The petitioners are some of the heirs of Mst. Akhtar Saudis Bano, the deceased wife of the respondent. She had instituted a claim in the Family Court for her prompt dower of Rs, 10,000. She died after her statement bad been recorded in the proceedings. An application was made by her father, mother and her son to be impleaded as heirs with a view to continue the proceedings. The Judge, Family Court rejected the application on the ground that the provisions of the Civil Procedure Code on the subject were expressly made inapplicable and the law setting up the Family Court and regulating its procedure made no such provision. The District Judge dismissed the appeal on the ground of limitation observing also that the clam to dower was competent by the wife alone and not by the heirs and in any cue not all her heirs had made a request for being impleaded. The power to interfere in appropriate cases even with the judies The power of supervision and control conferred by Article 102 o the late Constitution of 1962 and Article 205 of the Interim Constitution of A 1972 include orders kW prates. This power has to be exercised for correcting, in particular, the errors of jurisdiction.
(1) Was the claim to dower by hist. Akhtar Secede Bono exclusively triable by the Family Court ?
(2) Doe, the right to sue for such a claim survive the death of the party seeking relief ?
(3) Notwithstanding the answer to the first two questions being in the affirmative cannot the proceedings be continued by impleading the heirs.
3. The Family Court rejected the application of the legal representatives not because the claim did not relate to dower or that the right to sue did not survive the death of MN. Akhtar Saeida Bano on the ground that legal representatives could be impleaded under the Civil Procedure Code and its provisions had been made inapplicable at d the Family Court as a special forum provided for suits between husband and wife only. The reasoning is as follows t-- "It is pertinent to note that no provision has been made in the Act and the Rules for joining L. Rs, on the death of a party and the provisions of C. P. C. Cannot be imported because of clear bar. The purpose behind this appears to be that this special forum was provided for suits between husband and wife only. If L. RL have to file suit for recovery of dower debt they may file the same before a Civil Court."
4. The District Judge observed "to recover a dower is a right in persona and a suit for this purpose can be filed by the wife".
5. The Family Courts Act, 1949 (hereinafter referred to as the Act) is no doubt, a special statute and provides a forum and a half-contained procedure for the adjudication of certain disputes. The preamble of the Act provides for the establishment of Family Courts "for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith". Party has been defined in section 2 subsection (1) clause (d) to "include any person whose presence as such is considered necessary for a proper decision of the dispute and whom the Family Court adds as a party to such dispute". Subsection (2) of the same section provides that "words and expressions used in this Act but not herein defined shall have the meanings respectively assigned to them In the Code of Civil Procedure, 1908". The Family Courts have been conferred by section 5 "exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule". The Schedule lists the following matters and ad seriatim - "(I) Dissolution of marriage.
(2) Dower.
(3) Maintenance.
(4) Restitution of conjugal rights.
(5) Custody of children.
(6) Guardianship.
(7) Jactitation of marriage.
6. The exclusion of jurisdiction on these matters is total and complete except for the provisions of Muslim Family Laws Ordinance, 1961. Section 17 provides "Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Code or Civil Procedure 1908 except sections 10 and 11 shall not apply to proceedings before any Family Court."
7. After reproducing the items mentioned in the Schedule to the Act in Adnan 4fal's case (1) their Lordships of the Supreme Court observed :- "From these provisions it is clear beyond any doubt that as from the 5th of April, 1966, when Judges of the Family Court became invested with powers of Magistrates of First Class, the only Court which had jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule, was the Family Court."
' And further that: "A comparison of these provisions indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without in any way diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters."
8. The matters specified in the Schedule are the subject-matter of the suit or proceeding without any direct reference whatsoever to the patty which institutes the proceedings. There is in fact an irresistible indication 4 g., in the case of jactitation of marriage, that a person who claims to be a stranger, or is in fact a stranger can also maintain proceedings in Family B Court. If as in this case the subject-matter of the proceeding is one which is specified in the Schedule then the Family Court has the exclusive jurisdiction. It is an undeniable fact that Mst. Akhtar Saeeda Bano sought dower and had approached the appropriate forum for that purpose, and such a forum had the exclusive jurisdiction in-the matter.
9. As regards the second question, Mila in Principles of Mohammedan Law reproduces the definition of dower as "a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage". It has further been observed "if the dower is not paid, the wife, and after her death, her heirs, may sue for it". In Baillie's Digest of Mohammedan Law on the subject of disputes with regard to dower the following observations occur "Disputes regarding the dower may take place between the married parties themselves in their lifetime, or between their heirs when both are dead, or after the death of one of them, between his or her heirs and the survivors."
10. In the Mohammedan Law of Inheritance by Almaric Rusay on the subject of posthumous claims of dower it has been observed t- "It has been seen already that the right to dower is not extinguished by (1) PLD 1969 SC 187 the death of husband or wife or both and it is in fact distinctly laid down that a claim of dower may be maintained by the wife against the husband's inheritors, by the wife's inheritors against the husband, or by the wife's inheritors against the husband's inheritors."
12. It is clear, therefore, that the right to sue survives the death and, the heirs can continue the proceedings and their claim in the proceedings continues to be for the dower.
13. It is the third question which presents some difficulty. Section 17 of the Act as originally framed provided "Save as otherwise expressly provided by or under the Act, the provisions of the Evidence Act, 1872, and the Code of Civil Procedure, 1908 shall not apply to proceedings before any family Court". After its amendment by Act XV of 1967 it reads "Save as otherwise expressly provided by or under this Act, the provision of the Evidence Act, 1872 and the Code of Civil Procedure, 1908s except section i0 and 11, shall not apply to proceedings before any, Family Court."
The object of this provision is not to restrict the powers of the Family Court in the matter of reception of evidence or to limit its procedure while trying matters specified in the Schedule, but to enlarge their powers and to the make procedure more beneficial with a view to achieve speedy and substantial justice. For example, on the strength of this provision, a party cannot get excluded from evidence facts of which the Court is required to take judicial notice, presumptions as to documents, or presumption of the existence of certain facts simply because the provisions, therefor, are contained in the Evidence Act which has been made inapplicable. Similarly, where in a matter the Family Court has the exclusive jurisdiction, and the right to sue survives the substitution of the heirs cannot be refused on the ground this, provision for it exists in Civil Procedure Code and those provisions have not been made applicable to Family Court. Such an approach amounts to refusal to exercise jurisdiction vested in the Court, and may lead to manifest Injustice.
14. In the case of Mit. BIM Lal Bibi v. Mir Baluch Naz (1) a Division Bench while considering a similar objection in respect of provisions of Dasturul-Amal Division Kalat, held that in the absence of any bar "on the administration of justice this procedure must be considered to be inherent in any proceedings before a civil Court."
15. This, however, is not the end of the matter, for the appeal before the District Judge was held to be barred by time. The matter was one in which an appeal was competent under section 14 subsection (1) of the Act. With the appeal an application for condonation of delay had been filed The sufficiency of the grounds, which was primarily a question of fact, w P examined by the Appellate Court. I will not, in exercise of powers undo Article 102 of the late Constitution or 285 or the interim Constitution, review such a finding of fact with a view to interfere with it, besides, the reasons give for recording the finding of fact are neither perverse nor extraneous. That finding therefore cannot be interfered with.
' The result is that the application is dismissed. In the circumstances parties are left to bear their own costs.
(1) PLD 1962 Quetta 28