The scope of the constitutional petition for interference is very limited and it can only be interfered when the orders of the Courts below are fanciful or based on mis-reading or non-reading of the evidence”

24. Further, there are concurrent findings of both the learned Courts below against the petitioner. In case of concurrent finding of the courts below the scope of the constitutional petition becomes very limited. The petitioner has failed to point out any mis-reading or non-reading of the evidence. It has been laid down in Syed Arif Ali Sabri V. Abdul Samad through L.Rs. and 2 others (2008 YLR 2309) that “when there is concurrent findings of Courts below, the scope of the constitutional petition for interference is very limited and it can only be interfered when the orders of the Courts below are fanciful or based on mis-reading or non-reading of the evidence”. The same view has also been taken in Sadruddin v. Aslam Madad Ali and others (PLD 2008 Karachi 2005). 

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
19091-09
2014 LHC 5328

Courts are bound to grant Khula to claimant wife where she has expressly claimed or has omitted to claim in her pleadings or in case any other ground for seeking dissolution of marriage could not be proved by her

15. In fact Khula is a way to release the wife from matrimonial bond and can be exercised by wife if the circumstances divulge that it is impossible for her to live within the limits prescribed by the Almighty Allah and the compelling of wife to live with her husband will give rise to a hateful union, then the courts are bound to grant Khula to claimant wife where she has expressly claimed or has omitted to claim in her pleadings or in case any other ground for seeking dissolution of marriage could not be proved by her. In this regard reference is made to PLD 1959 Lahore 566 (Mst.Balqis Fatima Vs Najam ul Ikram Qureshi)  

 Part of Judgment : 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT
WP- Family Law
2163-09
2014 LHC 5509

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.

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.
WP- Family Law
21213-14
2014 LHC 6331

Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity.

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.
WP- Family Law
21213-14
2014 LHC 6331

Family Court can adopt every procedure/law in furtherance of dispensation of justice unless the procedure/law going to be adopted is specifically prohibited.

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‖.  


Part of Judgment : 
IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.
WP- Family Law
21213-14
2014 LHC 6331

Under the above provision, 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.
WP- Family Law
21213-14
2014 LHC 6331

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 : 
IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.
WP- Family Law
29820-14
2014 LHC 7223

Under the West Pakistan Family Courts Act, 1964 (WPFCA, 1964) Family Courts has the power to grant interim maintenance under Section 17-A which states;

11. Under the West Pakistan Family Courts Act, 1964 (WPFCA, 1964) Family Courts has the power to grant interim maintenance under Section 17-A which states; Interim order for maintenance.—At any stage of proceedings in a suit for maintenance, the family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the court may strike off the defence of the defendant and decree the suit.‖

Part of Judgment : 
IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT.
WP- Family Law
21213-14
2014 LHC 6331

Statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in constitutional jurisdiction

, 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.
WP- Family Law
21213-14
2014 LHC 6331

writ 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.
WP- Family Law
21213-14
2014 LHC 6331

To state that writ petition against 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.
WP- Family Law
21213-14
2014 LHC 6331

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,

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.
WP- Family Law
21213-14
2014 LHC 6331

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.
WP- Family Law
21213-14
2014 LHC 6331

Purpose behind insertion of section 17-A in Family Courts Act, 1964

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.
WP- Family Law
21213-14
2014 LHC 6331
Subscribe to: Posts (Atom)
Powered by Blogger.

Case Law Search