The petitioner through instant revision petition under section 115, C.P.C., seeks reversal of judgment/order of Additional District Judge, Mardan dated 7-3-2002 whereby appeal of the petitioner was dismissed in limine and judgment/order of Civil Judge, Mardan dated 28-2-2002 passed in execution proceedings, directing the petitioner to make payment of decretal amount of Rs,3,30,667 to Mst.Naheed Bibi respondent, in twelve equal instalments, was maintained.
2. Relevant facts of the case are that petitioner married Mst.Naheed Bibi respondent and Nikah of the couple was recited on 27-3-1997 at Taxila, District Rawalpindi. A sum of Rs,300,000 as dower and Rs,1,000 per month as maintenance allowance, was fixed. Mst.Naheed filed suit (No,172/1998) on 12-10-1998 before Judge Family Court, Taxila, for recovery of dower and maintenance allowance.
The suit was decreed on 2-5-2000 and a precept under section 46, C.P.0 was sent to District Judge, Mardan for execution of the decree. During the execution proceedings joint statement of counsel for the parties was recorded before Additional District Judge, Mardan, order dated 6-7-2002 of Executing Court was set aside and Court was directed to fix instalments for payment of decretal amount. The Court fixed twelve equal monthly instalments for realization of the decretal amount.
This order was unsuccessfully challenged before Additional District Judge, Mardan, who dismissed the appeal in limine and upheld the impugned order, as stated above.
3. Mr. Khalil Khan Khalil, Advocate for the petitioner, criticized the impugned judgments/orders of the Courts below and attempted to argue that instalments have been fixed at an exorbitant rate, in total disregard to the financial status of the petitioner, statedly a Government official drawing monthly salary of Rs,4,500. The learned counsel prayed that the quantum of instalments may be reduced appropriately in order to enable the petitioner to discharge his liability.
4. Mr. Atif Ali Khan, Advocate for the respondent at the very outset raised a preliminary objection and asserted that the revision petition is not maintainable in view of section 17 of Family Courts Act, 1964 and as such the revision petition merits outright dismissal.
5. In order to appreciate the arguments of learned counsel for the parties, I deem it necessary to reproduce below section 17 (ibid) which reads:-- "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.
(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts."
6. A plain reading of the above provisions of law reveals that special provisions of Family Courts Act excludes general provisions. Therefore, general provisions of Civil Procedure Code are not applicable on the well known principle that special provisions of the Family Courts Act excludes the general provisions. If an authority is needed on the point reference can be made to State v. Ziaur Rehman and others (PLD 1973 SC 49). 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. 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. The provisions of Civil Procedure Code are not applicable in stricto senso to proceedings before the Family Court by virtue of section 16 of the West Pakistan Family Courts Act, 1964. The purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities. It is settled proposition of law that Judge Family Court is competent to regulate its own proceedings as the West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances. The Act creates a Special Court for decision of matters mentioned therein. Civil Procedure Code, 1908 and Evidence Act, 1872 are not made applicable to trial before Family Court. The Court should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path. PLD 1970 Peshawar 52, 1987 CLC 1277, 1986 CLC 2381, PLD 1975 Lahore 7, PLD 1989 SC 532, 1993 SCMR 363, PLD 1981 SC 522, PLD 1981 SC 246 and 1983 CLC 3305. The Hon'ble Supreme Court in Malik Khizer Hayat Khan Tiwana v. Mst. Zainab Begum PLD 1967 SC 402) made the following observations:- "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 respondent 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 by any scope for any undue adherence to the technicalities. In our view section 17 of. The Family Courts Act which excludes the application of the Evidence Act and the Code to proceedings thereunder does not also govern proceedings under section 25 thereof, for, the latter takes effect notwithstanding anything else contained in the said Act."
7. In the result and for the foregoing reasons, finding myself in agreement with learned counsel for respondent that instant revision petition is not maintainable, I dismiss the same with no order as to costs.