معزز لاہور ہائی کورٹ نے قانون کی ایک نئی جہت تجویز کی ہے۔ معزز لاہور ہائی کورٹ نے نہایت خوش اسلوبی سے اس نکتے پر اتفاق کیا ہے کہ اگر کوئی شخص اپنے طور پر جہیز کی واپسی کے لیے فیملی کورٹ سے رجوع کرتا ہے تو قانون میں اس کی قطعاً کوئی ممانعت نہیں ہے۔

 The question raised in the present petition is perhaps a question of first impression in which a husband has stepped forward to volunteer the return of dowry articles brought home by his wife at the time of marriage. This unconventional approach has been discarded by a judge family court upon a suit filed by the petitioner and which denial has brought the petitioner before this Court.

Serial No.8 of Part-I of the Schedule to the Act, 1964 makes all matters pertaining to dowry triable exclusively by the family courts. The Impugned Order proceeds upon the sole logic, as provided therein, that suit regarding recovery of dowry articles can only be brought by a wife. Section 7 of the Act, 1964 stipulates no such restriction and perhaps a common occurrence has weighed upon and influenced the learned trial judge.

Family courts, no doubt, have jurisdiction to entertain a suit filed by a wife seeking recovery of her dowry articles but can a husband; an unwilling custodian of such articles abandoned by the wife without any specific instructions; seek help of the family court and refuse to store such items for an indefinite period of time? Such provision and space if not particularly conferred, has not even been particularly excluded. Neither has any distinction about what type of suit can be brought by a husband or a wife has been drawn in the Act, 1964. In other words, if a husband cannot point out a statutorily prescribed express allowance for filing a case for the return of dower to the wife; neither can the wife for the claim of dower. All matters relating to dower have been accumulated and made exclusively triable by a Family Court by virtue of Section 5(1) read with Serial No.8 of Part-I of the Schedule.

POWER OF A FAMILY COURT TO REGULATE ITS PROCEDURE UNLESS EXPRESSLY BARRED

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An analysis of precedent cases on the procedure to be adopted by family courts reveals a consistent consensus on the principle that family courts operating under the Act, 1964, are left to decide the course to be taken by them in most cases and are free to govern and adjust the procedure to be adopted but are expected to presume that every course is permissible to take unless the specified course is expressly barred or prohibited.

FREEDOM OF FAMILY COURTS TO ASSUME POWERS NOT EXPRESSLY GIVEN IN THE ACT, 1964.

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The guiding principles discernible from the above judgments are that the Family Courts, as special forums are minimally regulated and are flexible in terms of what course of action they adopt during proceedings and such relative freedom is geared to ensure that all family disputes are expeditiously decided. Assumption of powers not expressly conferred, though not excluded either, has been approved as long as the purpose of administration of justice is served.

PURPOSIVE AND INCLUSIVE INTERPRETATION OF PROVISIONS CONFERRING JURISDICTION:

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Here, the jurisdiction for entertaining any dispute regarding any matter pertaining to dowry is liberally conferred upon a Family Court by Section 5 of the Act, 1964. Section 7 relating to the institution of suits refers to the terms Plaintiff without specifying the gender of the Plaintiff. Can the words „of wife‟ be read into the statute instead of „of Plaintiff‟ when the matter is that of dowry?

Relief sought may be return by the husband or retrieval by the wife. 26. Such interpretation, as the one pursued by the trial court will limit the scope of jurisdiction of the Family Courts even when no such limitation is either prescribed nor would it sit well with the purpose of enactment of the Act, 1964 as discernible from its preamble i.e. WHEREAS it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith; It would additionally disentitle a husband from brining in a cause which falls in exclusive jurisdiction of Family Courts even when no such person specific distinction is made in the Act.

Refusal of the learned Family Court to assume jurisdiction over the subject matter of dowry when a cause is brought by a husband would not only defeat the purpose of Act, 1964 which provides a unified forum for resolution of all family disputes falling within the jurisdiction conferred through Section 5 but will also amount to restricting the meaning of the term Plaintiff in Section 7 without there being any circumstances justifying such interpretation and when the legislature has not drawn any such distinction.

W rit Petition Uzair Azmat Versus No. 46842 of 20 22 Judge Family Court etc.
05-08-2022