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Petitioner: FARZANA RASOOL and 3 others VS Respondent: Dr. MUHAMMAD BASHIR and others
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Amir Hani Muslim, Tariq Pervez Title: FARZANA RASOOL and 3 others vs Dr. MUHAMMAD BASHIR and others Case No.: Civil Appeal No, 124 of 2011 Date of Judgment:2011-06-16 Reported As: 2011 SCMR 1361 Result: Appeal accepted
JUDGMENT
JUDGMENT ' TARIQ PARVEZ, J.---Appellant-Farzana Rasool instituted a family suit against the respondent- defendant Dr. Muhammad Bashir for recovery of dower, amounting to Rs, 500,000 for herself; for recovery of her dowry articles according to the list attached with the plaint, worth Rs, 831,000 and maintenance to the tune of Rs, 480,000 as past maintenance @ Rs, 5,000 per head for herself and for her three minor children. The respondent-defendant contested, the suit by filing his written statement. 2. It appears that before recording of evidence by the Judge, Family Court, the respondent- defendant filed an application before the learned District Judge, Vehari for transfer of family suit filed by appellant-plaintiff from the Court of Civil Judge, Mailsi exercising the powers of Judge, Family Court, to any other Court in the District on the ground that a brother of the plaintiff- appellant was a practicing lawyer in Tehsil, Mailsi and that he (defendant-respondent) was maltreated on appearance in Court at Mailsi, therefore, he is not expecting fair trial and just decision from the Judge, Family Court at Mailsi 3. Pending decision of his transfer application before the learned District Judge, Vehari, the respondent, who was defendant in the suit before the Judge, Family Court, got recorded his statement on 20-3-2010 to the effect that he has some pending matrimonial disputes with his wife Mst. Farzana Rasool (plaintiff-appellant) and in order to resolve all such disputes, let Mr. Muhammad Aslam Sindhu, Advocate, Mr. Shehzad Ahmed, Advocate and Ch. Khurshid Ahmed, President of the Bar Association, Vehari be appointed as Arbitrators (Salis) and whatever decision would be arrived at by such Arbitrators (Salis), he will be bound by the same.
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' Similar statement was made by Mst. Farzana Rasool through her counsel Malik Altaf Hussain, which was to the effect that he, on behalf of her client, has no objection to the statement of Dr. Muhammad Bashir and to the names of advocates nominated by him, therefore, decision will be accepted as binding by his client as well. 4. In view of the statement so made by the parties, the learned District Judge, Vehari vide order dated 20-3-2010 gave 15 days time to the Arbitrators (Salseen) to give their Salsi decision, which was unanimously drafted and filed by three Advocates, named above, on 8-5-2010. Since the learned District Judge, after recording order 20-3-2010 has consigned the transfer application to record, therefore, the matter went back to the Court of learned Judge Family Court but this time to the Court of Senior Civil Judge, exercising powers of Judge, Family Court at Vehari instead of Mailsi. 5. The learned Senior Civil Judge on receipt of award of the Arbitrators (Salis), who were appointed on the request of the respondent-defendant, consolidated two suits filed by the plaintiff-appellant Mst. Farzana Rasool, bearing Nos. 165 and 166 of 2009 i,e, one was for dower and dowry articles whereas the other for maintenance, and disposed of both the suits in terms of the award dated 8- 5-2010, decreed the suits on 17-6-2010 in the following terms i,e, determined by panel of three Advocates:-- (a) It was declared that 3 minor children i,e, petitioner Nos.2 to 4 are the minors and happily residing with their mother who is raising them up since the desertion of the respondent Dr. Muhammad Bashir. (b) It was declared that Dr. Muhammad Bashir will have to pay Rs,12,000 per month as maintenance allowance to his three children @ Rs,4,000 per child. The maintenance allowance will enhance 10% per annum. The minor son of Dr. Muhammad Bashir shall be entitled to maintenance till he attains the age of maturity and the minor daughters shall be entitled to it till they are married. (c) It was declared that Dr. Muhammad Bashir had undertaken vide Iqrar Nama dated 21-4-2003 that the dower amount of Rs,500,000 is fixed, therefore, Mst. Farzana Rasool is entitled to this dower amount. (d) As far as dowry articles are concerned it was decided that Dr. Muhammad Bashir shall pay Rs,300,000 lump sum amount towards dowry articles. 6. The respondent-defendant objected to the judgment/decree passed by the learned Judge, Family Court in favour of the appellant/ plaintiff, by filing an application, which was turned down by the learned Judge, Family Court, Vehari. The judgment/decree dated 17-6-2010 of the learned Judge, Family Court was challenged by the respondent/ defendant through two separate appeals bearing Family Appeals Nos.181 and 182 of 2010. Both the appeals were dismissed though through separate judgments but of even date i,e, 14-10-2010. 7. The decisions in Family Appeals Nos.181 and 182 of 2010 were assailed by filing Writ Petition No,12336 of 2010 before the Lahore High Court, Multan Bench at Multan. The learned Division Bench of the High Court vide impugned judgment dated 2-2-2011 allowed the Writ Petition and set aside the judgment/decree of the learned Judge, Family Court and the judgment of the Appellate Court/District Judge in appeals; however, the case was remanded to the Trial Judge with direction that the matter be decided afresh after providing adequate opportunity of hearing to both the parties. 8. Aggrieved from the judgment of the learned Division Bench of Lahore High Court, Multan Bench, Multan, appellant-plaintiff filed Civil Petition No,1930 of 2011, which came up for hearing on 9-3-2011 and leave to appeal was granted in the following terms:-- "Learned counsel inter alia contended that the High Court had intervened in the judgment passed by the Family Judge, maintained by the District Court passed on recommendation of Salsi Council duly appointed by the respondent willingly on the ground that Arbitration Act is not applicable.
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Prima facie it seems that to decide the dispute, parties before the Family Judge are not precluded to refer their matter for mediation, arbitration or decision by a third party, therefore, the High Court may have not interfered in the proceedings where the parties themselves consented for the same. 2. Leave to appeal is granted to consider the above contention. 9. It appears that the learned Judge, Family Court proceeded to grant decree in two family suits in favour of the plaintiff-wife on the basis of Salsi award dated 8-5-2010, given by the Arbitrators (Salseen), who were appointed to resolve all the family disputes between the husband and wife i,e, respondent and appellant, and both the parties have given an undertaking that they shall be bound by its decision. 10. Appeal of the respondent-defendant before the District Judge could not succeed on the ground that he himself had consented to the appointment of the panel of three Advocates of his choice, thus could not challenge their decision. 11. The learned Division Bench of the High Court, however, had taken a different view of the matter by holding that "the learned Trial Judge/Family Court, Mailsi instead of proceeding with the matter according to the procedure provided under the West Pakistan Family Courts Act, 1964 referred the matter to the arbitrators, who announced the award and the learned trial Court decreed the suit" ' Another aspect of the case, which was noted by the learned Division Bench of the High Court, was that "the learned First Appellate Court knowing this fact that the provision of arbitration has not been provided under the Family Courts Act, therefore, a Judge Family Court cannot refer a dispute pending before him to the arbitrators". ' It was also ruled by the learned Division Bench of the High Court that "the impugned judgments and decrees are not sustainable in the eye of law because arbitrators could not be directed to decide the matter pending before a competent forum." ' The learned Division Bench of the High Court further observed that "the argument on behalf of the respondents (appellants herein) that the matter was referred to the arbitrators with mutual consent is again misconceived as jurisdiction could not be conferred with the consent of the parties." 12. Learned counsel appearing for the appellants has argued that under section 17 of the West Pakistan Family Courts Act, 1964 (hereinafter referred to as 'the Act'), the provisions of the Evidence Act (Qanun-e-Shahadat) and the Code of Civil Procedure (hereinafter referred to as -'the Code') have been made inapplicable. According to him if one look at the conduct of the respondent- husband i,e, during pendency of transfer application, he opted for resolution of his matrimonial disputes through arbitration; voluntarily proposed three names of Advocates of his choice including the President of the Bar as Arbitrators; and got recorded his statement before the District Judge by giving an undertaking that he shall be bound by the decision made by the panel of Arbitrators, he is stopped by his conduct both morally and legally to challenge the decision of the arbitrators, therefore, the learned Trial Judge, after having incorporated the Salsi award/decision of such Arbitrators (Salseen), who were duly nominated by the respondent-husband himself, has committed no illegality and as such has proceeded in accordance with law. ' His submission is that non-framing of issues and non-recording of evidence has not caused any prejudice to the case of the respondent-husband because the same was not required in view of the statement of respondent-husband, voluntarily made by him whereby he not only consented to the appointment of the panel of Advocates as Arbitrators but in fact himself nominated the Advocates to be the members of the panel. Pt is further argued that the respondent-husband by his conduct is precluded to challenge the award announced by the Arbitrators of his choice. ' Learned counsel has further argued that even section 46 of the Arbitration Act, 1947 specifically provides that when an arbitration award is obtained through consent of the parties, the same can
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be taken into consideration as a compromise or adjustment of the suit by any Court before which the suit is pending. 13. Since despite service of notice the respondent No,1 is absent, therefore, this appeal is proceeded ex parte against him. The remaining respondents (2-3) are pro forma respondents. 14. In view of above resume of facts, some undisputed facts that emerge out are that the appellant-Mst. Farzana Rasool and respondent-Dr. Muhammad Bashir got married; the wife filed two suits against her husband i,e, one for return of dowry articles, demanding dower as fine and the other for maintenance for herself and for her children, born out of their wedlock; during pendency of these suits before the Judge Family Court at Mailsi, the respondent-husband approached the Court of District Judge, Vehari for transfer of the suit from Mailsi to elsewhere and that finally, vide order dated 29-5-2010 passed by the learned District Judge, Vehari, ithese suits were transferred to the Court of Senior Civil Judge/Judge Family Court at Vehari; during pendency of these suits and the transfer application before the District Judge, Vehari, the respondent- husband opted for resolution of his all matrimonial disputes with his wife through a panel of Advocates, nominated by him, by making a statement on oath that any award/decision by the panel shall be binding upon him; so was the statement made by Malik Altaf Hussain, Advocate on behalf of the plaintiff-wife i,e, Mst. Farzana Rasool. It is also apparent on record that the panel of Advocates (Salseen) filed their award/decision dated 8-5-2010 before the learned District Judge but was acted upon and incorporated by the transferee Court i,e, Senior Civil Judge, at Vehari in its judgment dated 17-6-2010, where on the basis of unanimous findings of panel of Advocates/Arbitrators, suits filed by appellant-Mst. Farzana Rasool were decreed. 15. Before embarking upon merits of the case and to see as to whether the procedure adopted by the Judge, Family Court was regular or irregular and was in accordance with law or otherwise, it is necessary to make some comments as to establishment of the Family Courts under the Act. 16. Pakistan is a Muslim State, where more than 90% of its population is Muslim. Even before the promulgation of the Act, all matrimonial disputes i,e, divorce, dower, maintenance, etc. Were governed under the Muslim. Personal Laws applicable to spouses. It was consequent upon the recommendations of a Commission that Muslim Family Laws Ordinance, 1961 (VIII of 1961) was promulgated and to give effect to this Ordinance, the Act was promulgated which received the assent of the President on 14-7-1964 but was made enforceable w,e,f, 2-11-1985. 17. The preamble of the Act is very relevant for proper decision of the matter in hand. For the sake of convenience, the same is reproduced hereinbelow:-- "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;" 18. Section 3 of the Act provides for the establishment of Family Courts whereas section 5 deals with the jurisdiction of the Judge, Family Courts over the matters mentioned therein. A family suit starts with the institution of plaint in the Family Court followed by filing of written statement under section 9 of the Act. Irrespective of the procedure as laid down for trials before a Civil Judge under the Code, after filing of written statement, the next step/procedure provided under the Act is under section 10 under the heading 'pre-trial proceeding', which provides that the Court, on examining the plaint and the written statement at pre-trial stage, shall ascertain the points at issue and attempt to effect a compromise or reconciliation between the parties, if this be possible. Section 10 of the Act further provides that if no compromise/reconciliation is effected between, the parties then. The Court shall frame the issues in the case and fix a date for recording of the evidence. ' Unlike the civil trials under the Code, again there is another deviation in the procedure under the Act that notwithstanding the recording of the evidence of the parties, the Court shall not pronounce the judgment because on conclusion of the trial, the Family Court, under section 12 of
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the Act, is required that it shall make yet another effort to effect compromise or reconciliation between the parties and if even at this stage compromise or reconciliation between the parties is not possible, only thereafter the Court is to announce its judgment and to give decree. 19. Reference to above provisions of the Act has made it crystal clear that procedure prescribed therein is different from the procedure of trial under the Code and that before passing any judgment and giving a decree, the Act provides at two stages that the Family Court shall undertake exercise of trying to bring about the compromise between the parties at pre-trial stage and also on the conclusion of the trial but before pronouncement of the judgment. These provisions appear to be in consonance with the command of Allah Almighty. In Surah-An-Nisa (Ayat No, 35), it has been commanded that:-- "AND IF YOU FEAR A BREACH (SHIQAK) BETWEEN . THEM TWAIN (I.E. THE HUSBAND AND WIFE), APPOINT AN ARBITER FROM HIS FOLK AND AN ARBITER FROM HER FOLK. IF THEY DESIRE AMENDMENT ALLAH WILL MAKE THEM OF ONE MIND. LO ALLAH IS EVER KNOWER AWARE." 20. A bare reading of command of Allah Almighty, as described in the above Surah, reveals that efforts are to be made by induction of one Hakam from the family of husband and one from the family of wife for ultimate reconciliation or compromise, so the family ties between the husband and wife remains intact. It is the spirit of above ayat of SurahAn-Nisa that sections 10 and 12 of the Act have, been promulgated to give effect to the above quoted ayat from Surah-An-Nisa. It is generally said that "it is better to have no house than to have a broken one" i,e, all efforts should be made that spouses even if separated are brought to reunion. Principle of bringing about compromise between the spouses for, their union/reunion is to be applied even in ancillary matters, like dispute between husband and wife in respect of dower, dowry, maintenance and all other allied matters under consideration before the Court. 21. We are conscious of the fact that under section 17 of the Act the provisions of the Code have been made inapplicable and the purpose for enacting such Section was in fact to give effect to the preamble of the Act, which provides that it is meant for expeditious settlement and disposal of disputes. The object of the Act is to minimize the technicalities and procedural bottlenecks for the purpose of speedy justice between the parties in shortest possible time and in shortest possible manner. The Act has changed the forum and also altered the method as to how the trial under the Act is to be proceeded and case decided. A bare reading of the Act clearly suggests that wilfully and purposely by exclusion of procedure as prescribed under the Code, much has been left at the discretion of the trial Judge/Family Court i,e, to conduct the trial in the manner as provided under the Act and also to adopt all possible measures and take all such steps, which result in achieving the purpose and object of the Act. 22. We have reproduced hereinabove the preamble of the Act, which speaks of settlement of disputes and disposal of the matter relating to marriage and family affairs. So, the preamble has its two parts; one "settlement of disputes" and the other "disposal of the matter". The word 'settlement' used in preamble appears to be more akin and in consonance with sections 10 and 12 of the Act, which provides that the Family Court shall take steps at pre and post trial stages, to bring about compromise or settlement/reconciliation between the parties. The second part of the preamble relates to 'disposal of disputes', which would mean that if settlement fails then the dispute shall be disposed of on merits. In presence of the Code, need was felt to have a forum for resolution of family disputes, wherein instead of cumbersome procedure, a short and simple methodology shall be provided for settlement and disposal of disputes relating to family matters. It was, therefore, that the Act was promulgated, which is a special Act for special cases in respect of special disputes between a special class of people i,e, husband and wife and children in case of their maintenance and custody.
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' The object was to have expeditious disposal of such matters in shortest possible time. The provisions of the Code and the Evidence Act were made inapplicable on the strength of section 17 of the Act. It is well known that under the Code, there is lengthy procedure for trial with so many bottlenecks, where civil disputes linger on between the parties for decades at the trial stage. Similarly, strict adherence to the rules of the Evidence Act, if followed, would also create so many hindrances in recording of the evidence and technical bars as to the admissibility and relevance of the evidence. It is, therefore, that even the provisions of the Evidence Act were made inapplicable to avoid technicalities. ' So, if the provisions of the Code and the Evidence Act were made applicable, it would have frustrated the very object of the Act, which requires the Special Court shall be constituted and such Court shall have exclusive jurisdiction in respect of the matrimonial disputes. The object of the Act is to shorten the agony of litigant parties and to provide them justice as early as could be possible. Matters pertaining to the Family Court be of dissolution of marriage, restitution of conjugal rights, entitlement of a child or children or of wife to the maintenance, payment of dower, all such issues are required to be decided in speedy manner, because no such issue can be left undecided for decades; because a minor, seeking maintenance, may become major by the time his case is decided by the Family Court or a wife, seeking dissolution of marriage, may go out of marriageable age by the time she get decided her suit for dissolution of marriage. 23. The above background has been given for the purpose of laying down the foundation that any procedure, which is otherwise neither illegal nor for which any express bar has been provided in the Act, is permissible to be adopted by the Judge, Family Court, if it does not offend any right of the parties. 24. Now coming to the case in hand, we have noted hereinabove that during pendency of his transfer application, the respondent-husband himself volunteered to go for settlement of all his matrimonial disputes with his wife by the panel of three Advocates, that too of his own choice as he himself nominated them to be member of the panel of Arbitrators and that he gave an undertaking that their decision will be binding on I him. This statement on oath was recorded by the District Judge, followed by recording of the statement of learned counsel for the appellant-wife and the matter, with consent, was sent to the transferee Court at Vehari where unanimous Salsi award/decision of the panel of Advocates dated 8-5-2010 was taken by the learned Judge, Family Court on record and was made basis of its judgment/decree dated 17-6-2010. 25. Now the questions for consideration before us are; (i) whether such procedure was lawfully adopted and followed; and (ii) whether the respondent-husband, when in fact not only originated an option but also consented that the matter be referred to the panel of Advocates and when their decision came adverse to him, can retract and step back to his own offer. 26. It appears from the record that respondent-husband, after pronouncement of Salsi award/decision, filed an objection application which was responded to by the appellant-wife by filing reply and the learned Trial Judge/Judge, Family Court declared such objection being frivolous and an afterthought and acted upon the award/decision of the panel of Advocates, named/suggested by the respondent-husband by incorporating the same into its judgment/decree dated 17-6-2010. 27. Retraction from a consent or undertaking given by a party remained subject matter of different cases in different Courts. In Naimuddin v. Mah-e-Talat (1984 CLC 638), the wife took the plea that deed of divorce got signed by husband, under coercion; the husband prayed before the Family. Court that if special oath is taken by wife, he would accept her plea; the wife took the special oath and the husband questioned the same. The Court held that the husband could not question the jurisdiction of the Family Court and could not claim that special oath could not be given in matrimonial proceedings.
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' Similarly, in the case of Murid Hussain V. Additional District Judge (2003 MLD 547), a referee was appointed with consent of the parties and it was agreed that, appeal against judgment and decree of Family Court be decided on the statement of referee, to be made on the basis of oath on Holy Quran; about seven weeks after his appointment, referee appeared in Court and made his statement on oath regarding list of dowry articles which were with defendant-husband; after the statement of referee had been recorded, the defendant-husband filed application for cancellation of appointment of referee and stated that the case be decided on merits. Judgment of the Appellate Court was maintained on the ground that since the defendant-husband did not raise any objection within a period of about seven weeks with regard to appointment of referee, made with consent of the parties, so he failed to prove that referee so appointed was partial to the plaintiff. It was further held that the defendant-husband having agreed to be bound by statement of referee and also having cooperated in that behalf till statement of the referee against him was recorded, could not be allowed to resile subsequently. ' In the case of State v. Gulzar Muhammad (1998 SCMR 867), the Court seized with a criminal case where there was a dispute over the ownership of a Toyota pickup; during course of the arguments before the learned Sessions Judge, the parties agreed for settlement of dispute through arbitration and a panel of Arbitrators was appointed to announce its award. Such order was challenged before the High Court for quashment of proceedings including order of referring the matter to the Arbitrators. The learned Judge in Chambers of the High Court observed that the impugned order has…
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