Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 Muhammad Anwar and Muhammad Aslam petitioners have challenged the order passed by Miss Uzma Akhtar, learned Additional District Judge, Lahore, dated 11-5-2002 whereby the order passed by the learned Judge Family Court, dated 21-11-2001 was set aside, consequently, the learned Family Court was directed for a fresh decision to determine first as to who amongst parties is in possession of the dowry articles after drafting the preliminary issues in this regard.
2. Some relevant facts for disposal of this writ petition are that Mst. Shagufta Ahmad (respondent No.3) filed a suit for recovery of dowry articles against her husband Muhammad Sarwar, brother of the petitioners as mentioned above before the learned Family Court at Lahore. He was murdered during the pendency of the suit, consequently, the present petitioners as being the legal heirs were impleaded as a party in the suit. Upon an application for rejection of the plaint on the ground that due to death of the defendants the nature of the suit has been changed, the learned Judge Family Court observed that the Family Courts Act deals exclusively with family matters between the spouses but when the husband has died the nature of the suit has been changed and it is no more in between the spouses and it is now civil liability of the legal heirs of the defendants hence suit is not maintainable before the Family Court as a result of which the plaint was returned for its presentation before the proper forum vide order, dated 21-11-2001. The learned First Appellate Court did not agree with the findings of the learned Judge Family Court and remanded the case with direction to determine first as to who is in possession of the dowry articles by framing of issues in this regard vide order, dated 11-5-2002. Hence this writ petition.
3. I have heard the learned counsel for the parties and have also gone through the copies of the relevant record placed before me.
4. Learned counsel for the petitioner mainly argued that the Family Courts Act being a special law has come into force to settle the dispute exclusively amongst the spouses,, therefore, the jurisdiction of the Family Court is confined to the matters as given in the schedule attached with the Family Courts Act which could extend the cause of action towards the close relatives, therefore, being so, the impugned order passed by the learned first Appellate Court cannot sustain in the eye of law and it is liable to be set aside.
Which have been opposed by the learned counsel for respondent No.3 who submitted that the suit was for the recovery of dowry articles and that if a husband dies during the pendency of the suit, the Family Court can proceed further with the suit by impleading the legal heirs of the defendant - and that nature of the suit does not change as there are some other matters where the jurisdiction goes beyond the spouses. He submitted that he is supported with the case-law relating to this point as reported in "Muhammad Alam and another v. Shamas un Nisa, etc." NLR 1979 Civil 67 (Lahore).
5. The point for determination is as to whether in the circumstances as discussed above, the family suit could proceed further against the legal heirs of the defendant or that it would convert into a civil liability. In this regard first of all the preamble of the Family Courts Act, 1964 would be taken into consideration which reads as under:-- "Whereas it is expedient to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriages and family affairs and for matters connected therewith."
Its language makes it clear that this Act has exclusive concern with the disputes relating to marriages and family affairs and for matters connected therewith. In other words this act has provided a forum to the spouses for grant of the better remedies. So far the jurisdiction of the Family Court is concerned, the Family Court is competent to adjudicate upon the matters specified in this schedule which are as under:--
(1) Dissolution of marriage.
(2) Dower:
(3) Maintenance.
(4) Restitution of conjugal rights.
(5) Custody of children.
(6) Guardianship.
(7) Jactitation of marriage.
(8) Dowry.
6. If the jurisdiction of the Family Court is confined to the dispute relating to marriage, family affairs and other matters connected with the marriage then certainly after the death of a husband or a were the suit would be abated but this is not the correct position because in case of suit for dissolution of marriage due to death of a husband or were the suit would be buried but it cannot be so in case of suit for recovery of maintenance for the minors, as in case of death of mother the suit for maintenance would proceed further. This position is quite apparent but the question is as to what would happen in case of suit for recovery of dowry articles where husband dies or where the were dies. In order to resolve this proposition there is necessity to examine the definition of party as given in clause 'D' to section 2 of the Family Courts Act which reads as under:--
(d) "Party" shall 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. "
The perusal of the definition of the "party" would show that this word is not confined only to the spouses but its meanings are wider in sense. If there is a suit for recovery of dowry articles and the dowry articles are in the custody of father of the husband then even in lifetime of the husband father of the husband may also be impleaded as a party as his presence may be considered necessary for a proper decision of the dispute. Since the dowry articles are exclusively in the ownership of were and same are also recoverable even after the death of the husband then whosoever is in possession of these articles may be impleaded as a party as due to the death of the husband the responsibility of the legal heirs for return of the dowry articles is not vanished and when the suit for recovery of the dowry articles is within exclusive jurisdiction of the Family Court, it is to be finally disposed of by the Family Court. Same type of principle was discussed in the case reported in NLR 1979 Civil 67 (Lahore) (supra) wherein it was observed as under:-- "A bare reading of what has been quoted above would show that not only the disputes strictly relating to marriage and family affairs, but some of the other matters as well connected therewith were intended to be entertained and adjudicated upon by the Family Courts. Dower is one of the subjects of disputes relating to the marriage and by virtue of section 5 would fall within the exclusive jurisdiction of the Family Court. The Schedule does not make any distinction between the dower payable by the husband and the responsibility of a surety to discharge the liability of the husband. This assumption, as contended by the learned counsel for the respondent, is strengthened by the definition of 'party' contained in section 2(d). It is were enough to include a party as such and also other persons whose presence would be necessary for the decision of the dispute. Not only this, but it would also include persons whom the Family Court adds as a party to such a dispute which otherwise would fall under the Schedule. The husband and the surety are both necessary parties insofar as determination of questions relating to liability to pay dower are concerned; subject of course, to further question as to whether a surety is involved. The preamble does not, in any way, effect the significance of definition of 'party', Obviously if there is a dispute about the dower, it relates to marriage and the liability of a surety qua dower is a matter connected with such dispute. The decree passed by the Family Court is not without jurisdiction. The argument of the learned counsel for the petitioner has no force. "
6. If surety in case of dower, as observed in the above mentioned case is a necessary party for the just decision or the case then after the death of the husband the legal heirs of the deceased are also necessary party for proper adjudication upon the matter, on the same line if were dies during the pendency or a suit for recovery of dowry articles her legal heirs shall be considered necessary party for the proper decision of the suit and they shall be impleaded as plaintiffs and that the suit Shall proceed further on merits on the same platform i.e. The Family Court. The arguments advanced by the learned counsel for the petitioner carry no force.
7. As a result of it this petition being without merits is hereby dismissed with no order as to the costs.
Q.M.H./M.A.K./M-1541/L