Family courts are established under section 3 of the West Pakistan Family Courts Act 1964 (Act). The said courts exercise their jurisdiction under section 5 of the Act, which is restricted to the “matters” specified in Part I of the Schedule of the Act.
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 of the Act 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 Schedule arises 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.
In order to meet the objectives of the Act a bar has been specifically created in section 14(3) of the Act which would show that any interim order passed by the Family Court cannot be subject to challenge through an appeal or a civil revision.
While interpreting such like bar of jurisdiction, it has been held by the Hon’ble Supreme Court of Pakistan that where a particular law does not provide a remedy against an interim order passed by a court exercising jurisdiction under that law, the said order ordinarily cannot be assailed by way of filing a constitutional petition with a caveat that if the order is without jurisdiction.
Keeping the above in view, when an interim order passed by a family court is challenged before this Court in exercise of its Constitutional Jurisdiction (which according to the judgments mentioned supra is circumscribed), interference made by this Court would not only amount to challenging the wisdom/intention of the Legislature, who has deliberately not provided any remedy against the interim order passed by the family court but it is also violative of Article 189 of the Constitution of the Islamic Republic of Pakistan. Even otherwise, such interference will also be defeating the purpose of promulgation of the Act qua expeditious disposal of the family cases.
It shall not be out of place to mention here that many opportunities were granted to the petitioner to produce his evidence which also included last opportunity however he failed to do the needful therefore the impugned orders have rightly been passed as they are in consonance with the principle of law laid down by the Hon’ble Supreme Court of Pakistan in judgment reported as Moon Enterprises CNG Station Rawalpindi v. Sui Northern Gas Pipelines Limited and another [2020 SCMR 300].
Writ Petition No. 11512 of 2019
(Arshad Mehmood v. Judge Family Court and another)
24-01-2023
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