A careful reading of the preamble would show that the Act has primarily been promulgated for “expeditious” “settlement” and “disposal of disputes” mentioned in the Schedule reproduced supra which primarily cater for the disputes arising out of “marriage”, which is between the “spouses” and the “family affairs” which are outcome of marriage.
When an “issue/dispute/matter” as contemplated in the above Schedule arise to a spouse, for “disposal” of the same either of them under section 6 of the Act being an aggrieved spouse will approach the family court against a party as defined in section 2(d) of the Act, whose presence is necessary for proper decision of the case or which has been impleaded by the family court. Upon such institution, defendant shall be intimated under section 8 who upon intimation will file a written statement under section 9 whereafter under section 10 process of “settlement” will be initiated by the family court by making an effort for reconciliation between the spouses. If the reconciliation fails, issues will be framed and thereupon under section 11 parties will be put to evidence and once the evidence is concluded, under section 12 another effort for “settlement” between the spouses shall be made by the family court and in case it fails, a final decree will be passed.
Unlike the procedure provided for proceeding in a regular civil suit under the Code of Civil Procedure 1898 (CPC), for “expeditious” disposal of the family suits, under section 7 an aggrieved spouse is allowed to enjoin multifarious causes of action (as mentioned in the Schedule) in one suit and for disposal of the same section 12-A provides for a time line. To further simplify the process/procedure and for express disposal of cases, under section 17 application of Qanun-eShahdat Order 1984 and CPC has also been ousted.
Placing the afore-referred dissection of the Act in juxtaposition with the facts of the present case, it has surfaced that the jurisdiction of a family court is circumscribed and is restricted to the “matters” mentioned in the Schedule reproduced supra. A bare perusal of the Schedule would show that it does not empower a family court to adjudicate upon a claim of a party qua his/her right of inheritance or tarka.
In the above background, since the claim of the petitioner is that of her inheritance as she is asking for ½ of her share in the dowry articles being the estate/tarka of the deceased for which she has approached the family court by way of filing a suit for recovery of dowry article and since determination of share in the estate/tarka of a deceased or its distribution do not fall within the jurisdiction of the family court, hence the suit filed by her was not maintainable as she had no locus standi to approach the family court, thus, the courts below have rightly decided against the petitioner.
As discussed above since the Act revolves around the settlement and resolution of disputes arising out of marriage and family, (which is the outcome of the marriage), it is only the spouses (either of them) who under the Act can approach the family court, being an aggrieved person and file a case against the other spouse or any person whose presence is necessary for proper adjudication [see section 2(d) of the Act]. An exception to the question of locus standi is created in the cases of guardianship as in such cases the paramount consideration is the welfare of the minor [as contemplated in the Guardian and Wars Act 1890]. Similarly the Superior Court have also recognized the rights of the parents of a deceased daughter to approach the family court seeking recovery of dowry articles [since they had given the dowry articles to the deceased and their capacity to sue is recognized in section 2(d) of the Dowry and Bridal Gifts (Restriction) Act 1976].
There is no cavil to the proposition that in the cases of Mst. Nasim Sharif and Mst. Musarrat Andleeb supra, this Court has held that while determining the jurisdiction of a family court, the subject-matter has to be given precedence instead of the parties who have approached the court, however, the said judgments are distinguishable and not applicable to the case in hand for the reason that in those cases there was no claim of inheritance/distribution of assets of the deceased spouse. Moreover, in the former judgment, a suit was filed by the parents of the deceased daughter qua recovery of dowry articles, whereas in the latter, the same was filed by the wife against the successor of her deceased husband, alleging that they have usurped the dowry articles.
Writ Petition No. 156059 of 2018
(Azmat Jahan v. Additional District Judge, etc.)
08.03.2022
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