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Petitioner: IHSANURREHMAN VS Respondent: Mst. NAJMA PARVEEN
Court Name: Supreme Court of Pakistan Judge(s): Nasim Hasan Shah, Muhammad Afzal Zullah, Muhammad Haleem Title: IHSANURREHMAN vs Mst. NAJMA PARVEEN Case No.: Civil Appeal No, 744 of 1984 Civil Revision No, 619 of 1983 Date of Judgment:1985-03-05 Reported As: PLD 1986 Supreme Court 14 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MUHAMMAD AFZAL ZULL h, J.-This appeal through leave of the Court is directed against judgment, dated 10-10-1983 of the Lahore High Court whereby in a guardianship/custody matter judgment of a Family Court earlier upheld by the Appellate District Court was modified on a civil revision filed by the respondent. ' The appellant's (father's) application for custody of the minor children of the parties herein was allowed by a learned Civil Judge functioning as Guardian (Family) Judge on various findings of fact with regard to welfare of the minors rendered against the respondent (mother). Her appeal before the District Court which was heard by a learned Additional District Judge was dismissed on affirmation of the said findings of fact. The respondent then tiled an application for revision under section 48 of the Guardians and Wards Act (No, VIII) of 1890 read with section 115 of the Civil Procedure Code before the High Court. Notwithstanding the preliminary objection with regard to its competency the same was partly allowed on 10-10-1983 by a learned Single Judge. The preliminary objection was overruled by making reference to another Single Bench judgment of the same High Court in Mrs. Parveen v. Kh. Muhammad Ashar (1). Although the findings of fact rendered against the respondent were considerably modified, the learned Judge declined to handover the custody to her on the main ground that the minors had expressed the desire to live with the appellant. She was, however, permitted temporary custody of the children during the vacation period when they would be free from the studies. It is against this last mentioned order/direction that the appellant sought leave to appeal. It was granted to examine, inter alia, the contention "that the judgment of the High Court, on which the learned Judge relied for holding that the revision was competent viz.
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Parveen v. Muhammad Ashar (1) had been disapproved by this Court in Sakhawat Ali and another v. Mst. Shui Khelay (2). ' Learned counsel for the appellant has relied on the afore-noted judgment of this Court in Sakhawat Ali's case and has also cited some more cases to support the contention that no appeal or revision in guardianship matters, was competent before the High Colin under the Guardians and Wards Act, 1890, after the enactment of the West Pakistan Family Courts Act (No, XXXV) of 1964. The cases cited are : ' Ghulam Hussain v. Mst. Farzana (minor) 1981 SCMR 953 ; Sakhawat Ali v. Mst. Shui Khelay PLD 1981 SC 454 ; Abdul Ghafoor Gill v. Mst. Mussarat.Khan PLD 1984 Lah. 332; Fazal Muhammad v. Ali Ahmad Awan 1982 CLC Lah. 2354 : Mst. Mussarat Jehan v. Mustafa Ali Beg 1982 CLC (Kar.) 205 ; Syed Shamim Ahmad v. .41st. Riaz Fatima PLD 1975 Kar. 448 ; Muhammad Ismail v. Mst. Zubeida Khatoon PLD 1973 Kar. 503 ; Mst. Zaibun Nis v. Muhammad Muzammil PLD 1972 Kar. 410 ; Mst. Farida Parwin v. Qadeeruddin Ahmad Siddiqi PLD 1971 Kar. 118 ; Mst. Tahseen Akhtar v. Mahmood- ul-Hassan PLD 1971 Lah. 875 ; Wajahat Ali Hasnie v. Mst. Ghazala PLD 1970 Lah. 641 and Mst. Maqsoodan Bibi v. Mst. Bhano PLD 1965 Lah, 183. ' In reply learned counsel for the respondent has relied on : ' Muhammad Deen Malik v. Addl. District Judge 1982 SC M R 1223 ; (1) PLD 1975 Lah. 334 (2) PLD 1981 SC 454 ' Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Alif Din v. Mst. Parveen Akhtar PLD 1970 SC 75 ; Khizar Hayat Khan Tiwana v. Mst. Zainab Begum PLD 1967 SC 402 ; Manzoor Hussain v. District Judge PLD 1977 Lah. 911 ; Mrs. Parveen v. Kh. Muhammad Ashar PLD 1975 Lah. 334 ; Muhammad Daud v. Abbas Ali PLD 1969 Lah. 699 ; Muhammad Ismail v. Fazal Ahmad PLD 1969 Lah. 834 ; Alif Din v. Shaukat Ali PLD 1969 Pesh. 62 and Juma Khan v. Mst. Gul FeroshaP L D 1972 Pesh. 1 ; as also on a leave granting order, dated 13th December, 1981 reported as Muhammad Deen Malik v. Additional District Judge, Karachi 1982 SCMR 1223 wherein it was observed that on account of an amendment made in section 47 of Guardians and Wards Act of 1890 it might be necessary for this Court to re-consider the view taken in Sakhawat Ali's case. It may be mentioned that according to the office report the appeal arising out of the said case was not decided on merits as the same was withdrawn. ' The relevant provisions of law for consideration in this appeal (of the West Pakistan Family Courts Act (No, XXXV) of 1964 ; the Guardians and Wards Act (No, VIII) of 1890 ; and the Code of Civil Procedure are reproduced below : Family Courts Act 2. Definitions.-(1) . (a) .. (b) "Family Court" means a Court constituted under this Act ; ' The powers of 1st Class Magistrate have been conferred on every Judge of the Family Court so that he may act under section 488, Cr. P. C. And may make orders for maintenance under that section. (2) Words and expressions used in this Act but not defined, shall have the meanings respectively assigned to them in the Code of Civil Procedure, 1908. 3. Establishment of Family Courts. -Government shall establish one or more Family Courts in each District or' at such other places as it may deem necessary and appoint a Judge for each of such Courts. 4. Qualification of Judges.-No person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge, an Additional District Judge, a Civil Judge or a Qazi appointed under the Datur-ul-Amal Diwani, Riasat Kalat.
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5. Jurisdiction.-Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance. 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule. 14. Appeal. -(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable- (a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge, and (b) to the District Court in other case. (2) No appeal shall lie from a decree passed by a Family Court- (a) for dissolution of marriage, except in the case of dissolution fot reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Marriages Act, 1939. (b) for dower not exceeding rupees one thousand ; (c) for maintenance of rupees twenty-five or less per month. 17. Provisions of evidence and Code of Civil Procedure not to apply.-(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872, and the Code of Civil Procedure, 1908 except sections 10 and 11 shall not apply to proceedings before any Family Court. (2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts. 25. Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1890.-A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act. Schedule-(See section 5) (1) Dissolution of Marriage, (2) Dower. (3) Maintenance. (4) Restitution of conjugal rights, (5) Custody of children. (6) Guardianship. (7) Jactitation of marriage. The Guardians and Wards Act, 1890. 4. Definitions.-(1) (2) .. (3) (4) "District Court" has the meaning assigned to that expression in the Code of Civil Procedure, and includes a High Court in the exercise of its ordinary original civil jurisdiction ; (5) "the Court" means- (a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian ; or (b) where a guardian has been appointed or declared in pursuance of any such application - (i) the Court which, or the Court of the officer who appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian ; or (ii) in any matter relating to the person of the Ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides ; or (c) in respect of any proceeding transferred under section 4-A, the Court of the officer to whom such proceedings has been transferred. 4-A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.-(1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a District Court, or authorise the Judge or any District Court, to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section. (2) The Judge of a District Court may, by order in writing, transfer, at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under
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subsection (1). (3) The Judge of a District Court may at any stage transfer to his own Court or to any officer subordinate to him empowered under subsection (1) any proceeding under this Act pending in the Court of any other such officer. (4) When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District may, by order in writing, declare that the Court of the Judge or office, to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian. 47. Orders appealable. -An appeal shall lie to the High Court from an order made by a Court, - (a) under section 7, appointing or refusing to appoint or declare a guardian ; or (b) under section 9, subsection (3), returning an application ; or (c) under section 25, making or refusing to make an order for the return of an award to the custody of his guardian ; or (d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto ; or (e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section ; or ( f) under section 32, defining, restricting or extending the powers of a guardian ; or (g) under section 39; removing a guardian ; or (h) under section 40, refusing to discharge a guardian ; or (i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order ; or ( j) under section 44 or section 45, imposing a penalty *Provided that, where the order from which an appeal is preferred is passed by an officer subordinate to a District Court, the appeal shall lie to the District Court." *Proviso added by Ordinance XI of 1980 on 26-3.1980, 48. Finality of other orders.-Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure, an order, made under this Act shall be final, and shall not be liable to be contested by suit or otherwise. Civil Procedure Code : 2. Definitions.-(1) (2) (3) . . (4) "district" means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a "District Court", and includes the local limits of the ordinary original civil jurisdiction of a High Court : 4. Savings.-(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. (2) . . .. . 115. Revision.-.(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. The High Court may make such order in the case as it thinks fit:
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' Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court. (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3) If any application under subsection (1) in respect of a case within-the competence of the Distrait Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court. 141. Miscellaneous proceedings.-The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction." ' The afore-quoted provisions have been commented upon in one or the other context in the cited case law. However two main questions for consideration in this appeal ate : ' One : Whether it is covered by the pronouncements made by the Supreme Court in the case of Sakhawat Ali. And if so. ' Two : Whether the said decision needs to be re-considered. ' In Sakhawat Ali's case no doubt the question on merits directly involved was whether an appeal from the judgment of a Guardian Judge under section 47 (unamended) of the Guardians and Wards Act, before the High Court was competent. The answer rendered was in the negative. The reasoning which then prevailed with the Court is based mainly upon the consideration of the two highly relevant provisions of the Family Courts Act namely sections 14 and 25. It can be divided into two parts : One, which would apply to the appeals as also revisions under the Guardians and Wards Act and thus would have to be treated as the law declared relating to both the appeals and revisions. While another part of the reasoning relates only to the appeals. The context in which the general reasons covering both the appeals and the revisions, were recorded was with clear implication of the same being declared as law and applicable accordingly and not as mere obiter. It will be of advantage to reproduce some of these reasons from page 457 of the report. (a) 'The section (25) does not, in terms, repeal section 14 nor does it refer to the litigants' right of appeal.' (b) 'The (contrary) contention assumes that section 25 amounts to an implied repeal of section 14 in all guardianship matters. If that had been the intention of the Legislature, it would have enacted accordingly, because repeals are not to be lightly implied.' (c) `Even on the footing that a statute has to be read as a whole, what does section 25 enact. It only prescribes that the procedure of the Guardians and Wards Act shall be followed by the Guardian Judge and not the procedure contained in the said Act (Family Courts Act). Therefore, we would explain here that the mode of trial prescribed in the said Act contains sweeping departures from the mode of trials in the suits under the Civil Procedure Code...... And the-, mode of trial laid down in the said Act is expressly excluded section 25.' (d) 'As according to this section (25), the Guardian Judge has to "follow the procedure prescribed" in the Guardians and Wards Act, it would be sufficient to observe that whilst this Act (the Guardians and Wards Act) does not contain elaborate provisions for the conduct of a trial in guardianship cases, it contains some provisions for regulating such trials, and the effect of the words quoted is that these provisions have to be followed by Family Courts, whenever they hear guardianship cases. But the procedure prescribed for hearing a case under the Guardians and Wards Act has
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nothing to do with the question of the forum in which an order under this Act can be challenged by the aggrieved party.' (e) 'And, this section (25) neither states nor implies that it is intended to govern the rights of parties after the Family Court has become functus officio by deciding the case before it.'. ' After the afore-quoted elaborate reasons the judgment proceeds at pp. 458 to 460 of the report to deal mainly with the question of appeal ; but before that we find a very weighty reason which is in seriatim reproduced below :- (f) 'The obligation imposed by section 25 to follow the procedure prescribed in the Guardians and Wards Act is an obligation imposed on the Court, and there is nothing in the section to support the 'view that it was intended to regulate the rights of the parties after the Family Courts had become functus ' Not only the aforementioned reasons but also the fact that the Lahore High Court's judgment in the case of Mrs. Parveen was not approved as declaring correct law, would further show that the decision by this Court rendered in the case of Sakhawat Ali was intended to cover both - the appeals and revisions arising out of guardianship matters ; because the said case of Mrs. Parveen arose out of revision filed in the High Court and dealt with the question of its competency which was held by the High Court to be competent. It is also interesting to note that the Division Bench case of Manzoor Hussain decided two years later (1) which had affirmed the view taken in the case of Mrs. Parveen was also not approved by this Court as having laid down correct law. On the contrary, two judgments of the erstwhile Sind and Baluchistan High Court in the cases of Mst. Zaibun Nisa v. Muhammad Mozammil (2) and Muhammad Ismail v. Mst. Zubeida Khatoon (3) were approved as having laid down the correct law. In one of those judgments (Mst. Zaibun Nisa), it was clearly held that section 17 of the Family Courts Act having excluded the provisions of the Civil Procedure Code (except sections 10 and 11) in so far as the Family Courts were concerned, the litigants could not invoke section 115 of the Civil Procedure Code and thus a revision under the said section was not maintainable. The case of Mst. Furida Parwin (4) decided by one of us (Muhammad Haleem, H.C.J. While as a Judge of the Sind and Baluchistan High Court) with the finding that on account of the bar contained in section 17 of the Family Courts Act, one of the main requirements of section 115, C. P. C. That the matter brought under revision must be a "case decided" by a subordinate Court was not satisfied, was also approved in the Karachi F ull Bench case of Mst. Zaibun Nisa. It may be mentioned here that another judgment by one of us (Nasim Hasan Shah, J. While as a Judge of the Lahore High Court) is to the same effect but on a different reasoning namely, that the object of the Family Courts Act was to provide a speedy remedy to settle family disputes and for that reason the combined reading of sections 14, 17 and 25 of the Family Courts Act had excluded the application of section 115, C. P. C. Therefore a revision in the High Court in the guardianship matters decided by a Family Court was not competent. In yet another case Ghulam Hussain v. Mst. Farzana (minor) (5) this Court refused to set aside the High Court's view that a revision in a guardianship matter was not competent and indirectly held the same view but the controversy was not examined in its details. ' The foregoing analysis of the law declared in the case of Sakhawat Ali, namely, it is also applicable.To the revisions and that being so the impugned judgment merited to be set aside would not end the controversy in this case, because, the learned counsel relying on a leave granting order of this Court in Muhammad Deen Malik (6) argued that the point noted therein for (1) PLD 1977 Lab. 911 (2) PLD 1972 Kar. 401 (3) PLD 1973 Kar. 503 (4) PLD 1971 Kar. 118 (5) 1981 SCMR 953 (6) 1982 SCMR 1223 reconsideration of the view in Sakhawat All's case, be examined. The contention noted therein was as follows :
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"It is contended on behalf of the petitioner that this amendment in law (the addition of the proviso after clause (j) of section 47 of the Guardians and Wards Act, 1980) was not brought to the notice of this Court at the time of decision of Sakhawat Ali's case and, therefore, its effect has not been considered. The argument is that according to well-established rule of interpretation of statutes redundancy, is not to be imputed to any enactment. If, therefore, the view that section' 47 of the Guardians and Wards Act, has been made dormant, in view of the combined effect of sections 5, 14 and 25 of the West Pakistan Family Courts Act, as held in Sakhawat Ali's case and the right of appeal is regulated by section 14 of the said Act, the amending Ordinance of 1980 would be rendered totally redundant. It is further argued that if effect is to be given to the amending Ordinance, it will have to be held that the right of appeal would be regulated by section 47 and the consequence will be that, no appeal would lie from an order passed by a Family Court under section 12 of the Guardians and Wards Act. The submission of the learned counsel raise a serious question of law, requiring the reexamination of the view adopted by this Court in Sakhawat All's case." ' The context in which leave to appeal was granted in the case of Muhammad Deen Malik is slightly different : whether an appeal from an order of temporary custody under section 12 of the Guardians and Wards Act would at all be competent - if section 47 is applied it would not be ; but if the matter is dealt with under section 14 of the Family Courts Act, it might be competent as an appeal against a decision of a Family Court. The main question nevertheless was the same as was considered in Sakhawat All's case whether section 47 of the Guardians and Wards Act would be applicable to the guardianship matters dealt with by a Family Court constituted under the Family Courts Act. ' Section 47 in its purview enacted that all appeals from orders referred therein passed under the Guardians and Wards Act by 'the court' (as defined in the Guardians and Wards Act) would lie to the High Court (before the amendment). The decision of 'the Court' (defined in section 4(5)(a) of the Guardians and Wards Act as the "District Court") even if it was presided over by a Civil Judge subordinate to a District Court, by virtue of enabling provision contained in section 4-A of the Guardians and Wards Act, was appealable under section 47 only to the High Court. The amendment made in 1980 provided that when 'the Court' was presided over by a Civil Judge subordinate to the District Court the appeal sh1l then lie to the District Court and not to the High Court. The argument advanced in the case of Muhammad Deen Malik was that if an appeal under section 47 was not competent in a case decided by a Family Judge, then there was no need for the legislature to have made the amendment at all. Prima facie the argument is attractive, that is why leave to appeal was granted. But on deeper scrutiny it seems that the amendment was made by the legislature under some misapprehension. It seems that the law declared by the Lahore High Court in the case of Parveen and Manzoor Hussain (decided in 1975 and 1977) was treated to have concluded the controversy and the contrary view taken in the earlier cases decided in 1971 ; 1972 and 1973 (Karachi), it was assumed to have been superseded by the Lahore casts. If so, it was wrong assumption because the two different views were expressed by separate High Courts and although the view of one had persuasive value for the other, they were not as such binding on each other. Be that as it may, the overruled view expressed in the Lahore cases was, it has been noted earlier, made the basis for bringing, by amendment. The proviso in section 47 ; on the assumption, that the appeal (as held in the Lahore cases) was competent under section 47 of the Guardians and Wards Act and not under section 14 of the Family Courts Act. This incorrect assumption led to the enactment of the proviso. '…
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