PLJ 2003
(i) Civil Procedure Code, 1908 (V of 1908)-
—O. XIV, R. l--Plea of non-framing of issues regarding age of plaintiffs-
Such plea was of no substance in as much, case was remanded by
Appellate Court for very purpose and in post remand proceedings, parties
were given opportunity to produce their respective evidence whereafter
that point (of minority) was decided by Family Court. [P. 284] E
(ii) Constitution of
—-Art. 199-Family Courts Act (XXXV of 1964), S. 5--Jurisdiction of High
Court cannot assume role of Appellate Court for arriving at its own
conclusions after re-appraisal of evidence adduced before Family Court-
Appraisal of evidence is function of Family Court which has been
invested with exclusive jurisdiction-Finding of fact recorded by Family
Court cannot be interfered within writ jurisdiction when same was based on mis-reading and non-reading of material evidence and reasons have to be given in support of conclusions arrived at. [P. 285] F
(iii) Family Courts Act, 1964 (XXXV of 1964)-
—-Preamble—Object and scope of Family Courts Act 1964 explained and
illustrated. [P. 283] A
(iv) Family Courts Act, (XXXV of 1964)-
—S. 5—Minors were not bound by document of "Shariat-Nama" written on
behalf of their mother that she would not demand maintenance for her
minor children—Minor's mother was not legally competent to forego or to
contract away their rights. [P. 284] D
(v) Family Courts Act, 1964 (XXXV of 1964)--
—S. 5 Qanun-e-Shahadat (10 of 1984), Art 59-High Court's direction for
Radiological Examination of plaintiff-Age of plaintiff on basis of such
examination was determined and they were found to be minors-Trial
Court's finding was thus, found to be unexceptional and no illegality was
committed by that Court in placing reliance on medical examination of
plaintiffs whereby were found to be minors. [P. 284] C
(vi) Family Courts Act, 1964 (XXXV of 1964)-
—S. 17-Purpose, object and intention behind S. 17 of Family Courts Act
1964, was to exclude application of law of evidence to proceedings before
Family Court-Repeal of Evidence Act, 1872 and its replacement by
Qanun-e-Shahadat Order 1984, has not 'altered that position and
provisions of Qanun-e-Shahadat 1984, were still excluded to proceedings
before Family Court-Mere fact that plaintiffs did not formally prove
specified documents was of no legal consequence, particularly when no
objection was raised by petitioner defendant whan said documents were
in evidence before Family Court-Family Court was also not legally bound
to accept document produced by defendant as true and genuine merely
because same was certified copy of public record. [Pp. 283 & 284] B
PLD 1992
Malik Jewed Akhtar Wains, Advocate for Petitioner.
Nemo for Respondents Nos. 2 and 3, they are, therefore, proceeded against ex-parte. Respondent No. 1, is a proforma Respondent.
Date of hearing: 5.9.2002.
PLJ 2003
[
Present-FARRUKH LATEEF, J.
ABDUL MAJID-Petitioner
versus
JUDGE FAMILY COURT KEHROR PACCA DISTRICT LODHRAN and 2 others-Respondents
W.P. No. 3323 of 2002 decided on 18.9,2002.
JUDGMENT
In this Constitutional petition Abdul Majeed has called in question judgment dated 26.2.2002 delivered by Respondent No. 1, Judge Family Court Kehror Pacca, District Lodhran whereby he granted maintenance allowance to Muhammad Bilal and Muhammad Iqbal-Respondents Nos. 2 and 3 respectively who are sons of the petitioner.
2. Briefly stated the facts are that the aforesaid minor sons of the
petitioner had through their guardian instituted a suit for maintenance
allowance against the petitioner which was decreed in their favour and they
were granted maintenance allowance at the rate of Rs. 500/- each per
month. Against the said judgment the petitioner filed a Constitutional
petition which was accepted on the ground that Family Court had given
finding without adverting to the document Ex. D. 3 produced by the
petitioner in evidence and the case was remanded to the trial Court for
deciding it afresh in accordance with law after taking into consideration the
entire evidence of the parties available on record.
3. After the remand the learned trial Court considered the entire
evidence on record and again decreed the suit. Maintenance allowance was
granted to Respondents Nos. 2 and 3 at the rate of Rs. 500/- each per month
from the date of institution of the suit.
4. Learned counsel for the petitioner has assailed the impugned
judgment on the following grounds:-
(i) Judge Family Court had illegally relied on the documents viz. Medical Certificate Ex. PI, School Leaving Certificate Ex. P2, and compromise deed Ex. P3 for determining the age of Respondents Nos. 2 and 3 because the aforesaid documents were not per se admissible in evidence under Qanun-e-Shahadat and that the Family Court had further erred in not placing reliance on Ex. D 3 (register of birth entry) on flimsy grounds when the said document was per se admissible in evidence and was not required to be formally proved. Reliance was placed on the case of Mst. Bakht-e-Rawida vs. Ghulam Habib and two others (PLD 1992 Karachi 46). It was urged that if documents Ex. PI, P3 are excluded then according to Ex. D3 both Respondents Nos. 2 and 3 were not minors and as such were not entitled to maintenance.
(ii) Material piece of evidence Ex. Dl, (Affidavit of the mother of Respondents Nos. 2 and 3) and 'Sharait Nama' mark A were not considered by the trial Court wherein mother of Respondents Nos. 2 and 3 categorically undertook that she would not claim maintenance allowance in respect of her sons (Respondents Nos. 2 and 3).
(iii) That in written statement specific allegation was raised that Respondents Nos. 2 and 3 were major, therefore, were not entitled to maintenance allowance but no issue was framed on that objection; and
(iv) Ex. PI was not relied upon and could not be produced in evidence in view of Section 7(3) of Family Court Act.
5. Arguments heard, writ petition and the annexures appended
therewith perused.
6. Adverting to the arguments of the learned counsel for the
petitioner it may be observed that in the impugned judgment Family Court
has held Respondents Nos. 2 and 3 as minors on the basis of the following
documents:-
(i) Ex. PI, age certificate issued by M.S. D.H.Q. Hospital Lodhran on 23.1.2001 on the basis of radiological examination of Muhammad Bilal. According to this document age of the said body was between 13 and 14 years as on 23.1.2001.
(ii) Ex. ,P2 certificate issued by Head Master Government High School according to which date of birth of Muhammad Iqbal is recorded in the school register as 15.12.1990 which means that at the time of institution of suit his age w.as less then. 10 years,
(iii) Ex. P. 3 a compromise deed between the parties wherein age of the said respondents is respectively stated is 10 and 8 years. Copy of this document is not annexed with the writ petition.
7. The impugned judgment further reveals that, document Ex. D3,
which was after remand exhibited as R. 1, was not relied upon by the Family on, law of evidence was repealed and replaced by Qanun-e-Shahadat Order 1984. In my humble view bar contained in Section 17 of the Family Courts Act, therefore, applies to the provisions of the law of evidence irrespective of the fact if it was amended repealed and replaced by subsequent legislation and was given another name.
As the provisions of Qanun-e-Shahadat Order did not apply to the proceedings before Family Court, therefore, mere fact that respondents did not formally prove documents Ex. PI to Ex. P3 was of no legal consequence, particularly in view of the fact that no objection was raised by the petitioner when the said documents were tendered in evidence before the Family Court. Similarly Family Court was not legally bound to accept document Ex. D3 (copy of register of birth entry) as true and genuine merely because of the fact that it was a certified copy of public record. Family Court could refuse to attach weight to the said document in view of other convincing evidence to the contrary and it could take notice of any material on record in connection with question of controversy between the parties and was legally competent to evaluate that evidence.
16. For its satisfaction, this Court had also directed for the Medical
Examination of Respondents Nos. 2 and 3 for determination of their ages in
compliance whereof Respondents Nos. 2 and 3 were medically examined.
According to the Radiological Examination conducted in
years whereas that of Respondent No. 3, Muhammad Iqbal was between 13
to 15 years as on 30.7.2002. Suit for maintenance was instituted on 5.4.2000.
Both the respondents are still minors as they have not attained the age of 18
years.
17. The finding of the learned trial Court to the effect that both the
respondents are minors is, therefore, unexceptional and no illegality was
committed by the leaned Family Court in not placing reliance on document
Ex. D. 3 because in view of the evidence produced by the respondents the
said document did not appear to be authentic and genuine.
18. Next contention of the petitioner's counsel that affidavit Ex. Dl
and 'Sharait Nama' Mark A were not considered by the Family Court, is
without any substance because vide the said documents mother of
Respondents Nos. 2 and 3 undertook that she would not demand
maintenance for her minor son (Respondents Nos. 2 and 3). Minors were not bound by the said documents nor their mother was legally competent to forego or to contract away their rights.
19. Next contention of the petitioner's counsel that issues were not
framed regarding age of the minors is without any force because the case
was remanded by the High Court for that very purpose and after remand
parties were given opportunity to produce their respective evidence
whereafter that point was decided by the Family Court.
20. Last submission of the learned counsel for the petitioner was
that Ex. PI was not relied upon hence it could not have been tendered in
evidence in view of Section 7(3) of the Family Court Act This argument is
also without force because the said document was received in evidence by the
Family Court without any objection from the petitioner and there is no penal
provision in the Family Court Act for violation of the provisions of Section
7(3).
21. In writ jurisdiction High Court cannot assume the role of
appellate Court for arriving at its own conclusions after re-appraisal of
evidence adduced before the Family Court.
22. Appraisal of evidence is the function of the Family Court which
is invested to it with exclusive jurisdiction. Finding of fact recorded by it
cannot be interferred with in writ jurisdiction when it is not shown to be
based on mis-reading and non-reading of material evidence and reasons have
been given in support of the conclusions arriving at
23. For the reasons stated above, writ petition is hereby dismissed.
(A.A) Petition dismissed.
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