Factual controversies involved in the case, could not be solved without a full-fledged trial.

14. Similarly in Benedict F.D. Souza v. Karachi Building Control Authority and 3 others (1989 SCMR 918) it was observed that;

 "Factual controversies involved in the case, could not be solved without a full-fledged trial. Accordingly we find that the approach of the High Court in its discretionary writ jurisdiction to decline relief to the petitioner, was unexceptionable. No justification has been made out for grant of leave to appeal. The same is refused."

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Family Court has the power to review its own order, however, only to the limited extent and that too if the order under review is due to the reason mentioned in guideline (vi) above OR the order reviewed falls in the settled parameters of review

18. It is however necessary to mention here that although provision of review is not provided in the West Pakistan Family Court Act, 1964, however, in view of the law laid down by the Hon’ble Peshawar High Court in Muhammad Saad Ali & 2 others Vs. Mst. Maryam Khan & 2 others (2014 CLC 715) wherein it was held as under:- ―

"The Family Court has got every jurisdiction to adopt any procedure/law to meet the situation to do the substantial justice between the parties and to secure the ends of justice. Since the act, 1964 ibid is not comprehensive enough to meet every conceivable eventuality. So, the Family Court can adopt every procedure/law in furtherance of dispensation of justice unless the procedure/law going to be adopted is specifically prohibited. The Family Court when came across the situation of failure of the defendants to file written statement, borrowed the provision of striking off defence from the C.P.C. and passed an order in this regard, then the said Court while facing the situation of review of the same can take shelter of non-availability of the provisions of review in the Act, 1964 ibid? No. the Family Court cannot refuse to exercise the jurisdiction on the ground of non-availability of the provision of review. It is the principle of law that recourse to general law is permissible when the provisions of special law are silent on a particular point except where the provisions of general law are inconsistent with the provisions of special law".

 Hence in respectful agreement of the view above, the Family Court has the power to review its own order, however, only to the limited extent and that too if the order under review is due to the reason mentioned in guideline (vi) above OR the order reviewed falls in the settled parameters of review.

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Administration of justice laid down certain guidelines

15. This court in the case of Mst. Sitwat Chughtai and another v. Judge, Family Court, Lahore and another (PLD 2009 Lahore 18) for administration of justice laid down certain guidelines in the following manner:- 

(i) Purpose behind insertion of section 17-A in Family Courts Act, 1964 is to ensure that during pendency of proceedings with Family Court, financial constraints faced by minors are ameliorated; 

(ii) Family Court should broadly look into social status of parties, earning of defendant, his capacity to pay and requirements of minor is the touchstone on which Family Court should fix interim maintenance; 

(iii) For the reason that no right of appeal etc. has been provided against fixation of interim maintenance, such order being tentative and interim in nature, the Family Court should be more careful and precise in such context to ward off any injustice. 

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Family Court has the power to pass interim maintenance order at any stage of the suit.

12. Under the above provision, Family Court has the power to pass interim maintenance order at any stage of the suit. Normally it is passed after filing of the written statement on behalf of the respondent/defendant in the suit. Now if the defendant found the same to be excessive or if the order suffers from some illegality or irregularity or it is arbitrary, fanciful, void ab-initio, without jurisdiction or if the same has attained the status of a final order, then writ under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 will become maintainable. In this regard reference is made to Sikhawat Hussain vs. Farzand Bibi and 6 others 2004 MLD 1834 (Lahore), Ghulam Mohy-ud-Din v. Mst. Mehvish 2002 YLR 3771 (Lahore), Muhamamd Khalid Javeed v. Mst. Shahida Parveen and 4 others 2007 YLR 1366 (Lahore), Aamer Mehmood Hussain v. Naeha Aamer Sayed and 2 others 2011 MLD 1105 (Lahore), Abrar Hussain v. Mehwish Rana and 3 others (PLD 2012 Lahore 420) and Nadeem Raza v. Judge Family Court and 3 others 2013 YLR 965 (Lahore) 

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Rigidity in the operation of a legal system is a sign of weakness, not strength.

10. However, as Lord Nicholls of Birkenhead has held in Spectrum Plus Limited and others Vs. National Westminster Bank PLC ([2005] 2 AC 680) as under; 

―Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times. 'Never say never' is a wise judicial precept, in the interest of all citizens of the country.‖ Therefore, in the extreme exceptional cases a writ petition against interlocutory orders may be held maintainable.

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Erred in law while transferring the family suit to the court of learned Guardian Judge who lacks jurisdiction to hear and try the family cases

3. It is argued by the learned counsel for the petitioner that the learned District Judge erred in law while transferring the family suit to the court of learned Guardian Judge who lacks jurisdiction to hear and try the family cases. Places reliance on the case of Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others (PLD 2012 Supreme Court 66).

Part of Judgment : 

LAHORE HIGH COURT 

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Interim order is maintainable.

5. Learned counsel for the petitioner/father relied upon Irfan Ahmed v. II-Judicial Magistrate East, at Karachi and another 2006 MLD 135 (Karachi) and Mst. Samina Afzaal & 5 others Vs. Additional District Judge and another 2010 MLD 52 (Lahore) to state that writ petition against interim order is maintainable. Further states that no appeal is available against interim order, therefore writ petition being efficacious and adequate remedy lies against interim orders.

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in constitutional jurisdiction.

9. It has been observed that interlocutory order is an order in which no final verdict is pronounced, but an ancillary order is passed with the intention to keep the same operative till final order/decision is passed in the pending matter. It is also observed that under the relevant laws legislature has not provided remedy of appeal, revision or review against an interim order, therefore Hon’ble Supreme Court of Pakistan in Syed Saghir Ahmed Naqvi Vs. Province of Sindh through Chief Secretary S&GAD, Karachi and others (1996 SCMR 1165) held as under:-

 “Constitutional jurisdiction, exercise of statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in constitutional jurisdiction. Party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such order.”

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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State of law, practice, procedures and proceedings in the Courts of law, that wrong orders should be corrected at the time they are passed

Also in Mohtarma Benazir Bhutto, MNA and Leader of the Opposition, Bilawal House, Karachi Vs. The State (1999 SCMR 1447) the Hon’ble Supreme Court held:--

 "It is well settled that orders at the interlocutory stages should not be brought to the higher Courts to obtain fragmentary decision, as it tends to harm the advancement of fair play and justice, curtailing remedies available under the law, even reducing the right of appeal. Refer the case of "Mushtaq Hussain Bukhari v. The State" 1991 SCMR 2136,  Muhammad Afzal Zullah, the then Hon'ble Chief Justice, at page 168 of the report observed as follows:-- 

"It is a wrong or at least misstatement in our state of law, practice, procedures and proceedings in the Courts of law, that wrong orders should be corrected at the time they are passed because it would take less time for the case to conclude. This might have been true half a century to quarter century ago. Thereafter, the challenge to the interlocutory orders has brought about a deluge in the administration of criminal justice. Cases started piling up with the result that the concept of speedy justice came to a grinding halt and powers that may be, started thinking of curtailing remedies even reducing the right of appeals. Cases like the present one do justify such an angry re-action but with a little change of practice in the technical field (for example amendment, vis-a-vis, the subject in section 197, Cr.P.C. it is hoped there would no (sic) be need to curtail the remedies as that too in the stage where we are passing, might be counter-productive"

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Against interim order lies only if the order passed by the Learned Family Court is illegal, mala fide or without jurisdiction.

6. On the other hand, learned counsel for the respondent/mother states that writ against interim order lies only if the order passed by the Learned Family Court is illegal, mala fide or without jurisdiction. In this regard relied upon Awais Khalid Vs. Judge Family Court and others 2011 YLR 3034 (Lahore) and Abrar Hussain Vs. Mehwish Rana & 3 others (PLD 2012 Lahore 420).

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Where factual controversies are involved, Constitution petition in the High Court is not the proper remedy

In this regard reference is made to the judgment reported as Muhammad Younus Khan and 12 others Vs. Government of N.W.F.P through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618) wherein Hon’ble Supreme Court held as under:-- 

"It is a consistent view of this Court that in cases where factual controversies are involved, Constitution petition in the High Court is not the proper remedy, Reference can be made to PLD 1980 SC 139, 1980 SCMR 933, 1981 SCMR 291, 1989 SCMR 918 and PLD 1991 SC 476.”

Part of Judgment : 

IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.

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Appellate Court has not recorded issue wise findings as such its judgment is not sustainable being violative of the provisions of Order XLI Rule 31 of CPC is concerned

6. So far as the objection of the learned counsel that the learned Appellate Court has not recorded issue wise findings as such its judgment is not sustainable being violative of the provisions of Order XLI Rule 31 of CPC is concerned, no doubt the learned Appellate Court does not strictly comply with the aforesaid provisions of law while rendering impugned judgment but it is settled principle of law that if the Appellate Court decides to affirm the findings of the learned Trial Court then it would be sufficient compliance of the provisions of law if the evidence is essentially discussed and the findings recorded and mere nonadherence to the above provisions of law does not make the judgment nullity in the eye of law. Reliance is placed on case reported as Mst. Roshi and others ..Vs.. Mst. Fateh and others (1982 SCMR 542).

Part of Judgment : 

LAHORE HIGH COURT MULTAN BENCH, MULTAN 

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DNA test is not a conclusive proof

4. In support of the petition, the learned counsel for the petitioner has reiterated the contents of the writ petition. He has also placed reliance on the judgments reported as “Aman Ullah v. The State” (PLD 2009 S.C. 542) and “Naseer Ahmad v. Mst. Azrah and another” (PLD 2010 Karachi 61) to urge that DNA test is not a conclusive proof of parentage and that Birth Certificate and School Leaving Certificates are to take precedence over the report of a DNA test.

Part of Judgment : 

LAHORE HIGH COURT MULTAN BENCH, MULTAN 

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Price of dowry articles has also been very cautiously assessed by the learned Judge Family Court and affirmed by the learned Appellate Court

8. It is custom in our country that parents do give dowry articles to their daughters merely as a token of love and symbol of honour and the petitioner has miserably been failed to bring on record anything from which it could be inferred that something contrary to the settled norms was happened in respondent’s case. The learned courts below already keeping in view the financial status of respondent’s parents decreed the dowry articles of ordinary nature, which are almost given to a bride even hailing from a family having average financial background. Alternate price of dowry articles has also been very cautiously assessed by the learned Judge Family Court and affirmed by the learned Appellate Court and this Court is not inclined to intervene with the concurrent findings of facts recorded by the learned courts below in its Constitutional jurisdiction. Reliance is placed on case reported as Muhammad Habib ..Vs.. Mst. Safia Bibi and others (2008 SCMR 1584).  

Part of Judgment : 

LAHORE HIGH COURT MULTAN BENCH, MULTAN 

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Importance of DNA test in this day

7. When asked as to what loss, if any, was to be caused to Mst. Shahnaz Akhtar, the petitioner if the DNA test was conducted as ordered by the learned Judge Family Court, the learned counsel for the petitioner evaded and ducked the question. It was simply urged by him that the learned Judge Family Court is not vested with any authority to pass any such order and that the disputed as to the parentage ought to be resolved by a Civil Court. His attention was invited to the recent judgment of the Hon’ble Supreme Court of Pakistan reported as “Salman Akram Raja and another v. Government of Punjab through C hief Secretary, and others”(2013 S C M R 203) in which an indepth discussion was made by the apex Court regarding the value and importance of DNA test. He took the plea that regardless of the importance of DNA test in this day and age, it is wholly unnecessary in the case of the petitioner. Be that as it may, he could not show as to how the impugned order is illegal or without jurisdiction or how it suffers from illegal infirmity. 

Part of Judgment : 

LAHORE HIGH COURT MULTAN BENCH, MULTAN 

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While making claim of dowry articles, is required to prove the case, in requirement of Qanun-e-Shahadat Order, 1984,

6. It is a settled principle of law that purpose of enacting the special law regarding family disputes is to advance justice and to avoid technicalities, which are hindrance in providing ultimate justice to the parties. The West Pakistan Family Courts Act, 1964 was promulgated for the expeditious settlement and disposal of disputes relating to the marriages and other family affairs and special procedure was provided to achieve this object. The purpose of enacting Family Courts Act, 1964 is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible time. The provisions of Civil procedure Code, 1908 as well as Qanun-eShahadat Order, 1984 are not applicable in strictosenso to the proceedings before the Family Court by virtue of Family Courts Act, 1964. As the evidence adduced before the Family Court cannot be evaluated and appraised in the manner as it is appreciated in the cases presented under Civil procedure Code, 1908. A mere fact that a party did not formally prove a document is of no legal consequence. The reference may be made on the case law reported as “Mst. Shakeela Bibi Vs. Muhammad Israr and others” (2012 MLD 756), wherein it has been held that “the stance of husband’s side that bride while making claim of dowry articles, is required to prove the case, in requirement of Qanun-e-Shahadat Order, 1984, as held by learned trial Court, not only misconceived, but besides the mandate of law as envisaged in Section 17(1) of the West Pakistan Family Courts Act, 1964.” It is further held that “in our society, it is not possible for any bride/wife to keep the record of purchase receipts, prepare the list of dowry articles, and obtained signatures from bridegroom/husband side. It is also tradition that in-laws, of any bride/wife are extended esteem respect and it is considered an insult to prepare the dowry list for the purposes of obtaining signatures from them.” The reliance may also be placed on the case “Muhammad Habib v. Mst. Safia Bibi and others” (2008 SCMR 1584) and “Mirza Arshad Baig v. ADJ” (2005 SCMR 1740).  

Part of Judgment : 

LAHORE HIGH COURT MULTAN BENCH, MULTAN 

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